Legal Question in Family Law in Massachusetts

Re: what is abuse?

You should consult an attorney in-person as soon as possible. You should also consider obtaining an Abuse Prevention Order (generally referred to as a "Restraining Order"). The physical attacks you describe clearly merit one, and you should have one as part of your separation.

"Abuse" is a word that changes meaning in legal context. You need to consider two contexts: the more general context of divorce, and the special context of the abuse prevention law.

As to Restraining orders, Abuse is as follows (from my client instructions, full copy available on request):

All family members have an absolute right to be free of violence or threat of violence, as well as unwanted sex. Massachusetts General Law Chapter 209A declares that �attempting to cause or causing physical harm,� �placing another in fear of imminent serious physical harm,� or �causing another to engage involuntarily in sexual relations by force, threat or duress,� are all �abuse� when they come from �family or household members.� All these forms of abuse are illegal.

Copyright (c) 2006 by Gregory P. Lee

In the divorce context, abuse is considered grounds for a divorce (a basis for which the court can determine "fault" and award a divorce). This is "cruel and abusive treatment" in the statutory phrase. Before the laws allowing "no fault" divorce were passed, this phrase was very liberally interpreted in Massachusetts. Almost anything that seemed intended to cause upset could be considered "cruel and abusive."

For child custody issues, the court looks to "the best interest of the child." It does not need to label the conduct as abusive -- instead, it can determine, simply, that the conduct is not what is desired in a custodial parent.

HOWEVER, going back to Restraining Orders: IF ONE PARTY HAS A RESTRAINING ORDER AGAINST THE OTHER, THE COURT MUST CONSIDER THAT IN DETERMINING CUSTODY. Simply stated, the court has to make specific findings that the abusive parent is really, really better overall for the child for some reason, despite the abusive conduct. This does NOT happen all that often. In addition, ONLY the Probate and Family Court can decide this.

THis is probably more than you can digest all at once. I would be happy to consult further with you.