Opinion of the Justices to the Senate

• Court: Supreme Judicial Court of Massachusetts
• Citation: Opinion of the Justices to the Senate, 691 N.E.2d 911, 427 Mass. 1201 (Mass. 1998)
• Decision Date: 11 March 1998
• Parties: OPINION OF THE JUSTICES TO THE SENATE.

Page 911

691 N.E.2d 911

427 Mass. 1201

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts March 11, 1998.

On March 11, 1998, the Justices submitted the following answer to a question propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answer to the question set forth in an order adopted by the Senate on November 13, 1997, and transmitted to the Justices on November 20, 1997. The order indicates that there is pending before the General Court a bill, Senate No.2021, entitled, "An Act relative to the consideration of domestic violence in custody and visitation proceedings." A copy of the bill was transmitted with the order. The order recites: "[Senate No.2021] would establish a presumption against awarding custody of a child to a parent under some circumstances; and ... would further require that, upon reaching a finding by a preponderance of the evidence [that a parent has engaged in a pattern or serious incident of abuse], the burden of proof shifts to the challenged parent to prove that it is in the best interest of a child to be placed with such parent."

The order also indicates that grave doubt exists as to the constitutionality of the bill, if enacted into law, and requests our opinion on this question:

"Does the statutory presumption established by [Senate No.2021] or the resulting shifting of the burden of proof violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution or Article 10 of the Massachusetts Declaration of Rights by impermissibly shifting to the challenged parent the burden of proof relative to custody of a child?"

Senate No.2021 would amend G.L. c. 208, 209, 209A, and 209C. The portion of Senate No.2021, § 3, which leads to the question asked of us, states:

"A probate and family court's finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent. Said presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this section, 'an abusive parent' shall mean a parent who has committed a pattern of abuse or serious incident of abuse."

Under the due process clause, the "government may only deprive a person of life or of an interest in liberty or property by due process of law." Opinion of the Justices, 423 Mass. 1201, 1229, 668 N.E.2d 738 (1996). Thus, the Justices must answer whether the establishment of a rebuttable presumption in custody disputes and the resulting shift in the burden of proof deprives the challenged parent of a liberty interest or property interest, and, if so, whether the requirements of due process have been satisfied.

The Supreme Judicial Court and the Supreme Court of the United States have recognized that parents have a fundamental interest in their relationships with their children that is constitutionally protected. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599 (1982); Custody of Two Minors, 396 Mass. 610, 617, 487 N.E.2d 1358 (1986), citing Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587, 421 N.E.2d 28 (1981). This interest is one of the "liberty" interests protected by art. 10 of the Massachusetts Declaration of Rights, and the due process clause of the Fourteenth Amendment to the United States Constitution. See Dep't of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, 393 N.E.2d 406 (1979), citing Quilloin v. Walcott 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). However, parents' interests in their relationships with their children are not absolute, because "[t]he overriding principle in determining [the rights of a parent to custody] must be the best interest of the child." C.C. v. A.B., 406 Mass. 679, 691, 550 N.E.2d 365 (1990).

There is a growing national awareness that children who witness or experience domestic violence suffer deep and profound harms. See, e.g., Custody of Vaughn, 422 Mass. 590, 599, 664 N.E.2d 434 (1996); Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol'y 221, 222-234 (1994); Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L.Rev. 1041, 1055-1058 (1991). To better protect children, many States have adopted legislation making it more difficult for an abusive parent to obtain custody of a child in a divorce proceeding. See generally Comment, Protecting New York's Children: An Argument for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child, 60 Alb. L.Rev. 1345 (1997). Eleven States have adopted statutes creating presumptions similar to the one contained in Senate No.2021. ¹ It appears that this court is the first to advise on the constitutionality of such a presumption.

In custody disputes between parents there is no constitutional or statutory entitlement to any particular form of custody. See Commonwealth v. Beals, 405 Mass. 550, 554, 541 N.E.2d 1011 (1989) (both parents have equal rights to custody of their children); Yannas v. Frondistou-Yannas, 395 Mass. 704, 709, 481 N.E.2d 1153 (1985) (neither State nor Federal Constitution favors one custodial arrangement over another); G.L. c. 208, § 31. A parent seeking custody must simply present evidence of facts which demonstrate why such an award of custody serves the child's best interests. If the other parent wishes to obtain custody, that parent must present evidence to show why he or she should be awarded custody instead. The judge weighs the evidence presented and makes a determination as to which parent can best satisfy the child's welfare and happiness. See, e.g., Rolde v. Rolde, 12 Mass.App.Ct. 398, 425 N.E.2d 388 (1981); Bahceli v. Bahceli, 10 Mass.App.Ct. 446, 409 N.E.2d 207 (1980); Angelone v. Angelone, 9 Mass.App.Ct. 728, 404 N.E.2d 672 (1980). Evidence of domestic violence is only one factor of many considered by a judge in making custody determinations. ²

Senate No.2021 would change the weight that domestic violence is given in custody determinations. Instead of simply being a factor considered by the judge, it could be a determinative factor. If one parent proves by a preponderance of evidence that the other has engaged in a pattern or incident of serious abuse, then a presumption arises that it is not in the child's best interests to be in the custody of the challenged parent. The challenged parent then has the burden of proving by a preponderance of the evidence, that despite evidence of abuse, it is in the child's best interests to be in his or her custody. Thus, once a parent's abusive conduct is proved, the burden of proof is shifted to the challenged parent to prove that an award of custody to him or her is in the best interests of the child.

In determining whether the presumption and shifting of burden survive constitutional due process, the question is not whether the State may restrict parents' liberty interests in relating with their children, but rather, what standard of proof is constitutionally required for the State to do so. Senate No.2021 would establish the presumption after proof by a "preponderance of the evidence." Whether this standard survives constitutional muster depends on the value society places on the affected individual's liberty, the significance of the deprivation or restriction, society's interest in avoiding erroneous deprivations or restrictions to that liberty, and the value society places on the State's interest. See Santosky, supra at 755-756, 102 S.Ct. at 1395-1396. Both the Supreme Judicial Court and the Supreme Court of the United States have utilized the analysis contained in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to balance these interests. ³ See Care & Protection of Robert, 408 Mass. 52, 58-59, 556 N.E.2d 993 (1990); Spence v. Gormley, 387 Mass. 258, 274-277, 439 N.E.2d 741 (1982). This requires consideration of three distinct factors: (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, supra at 335, 96 S.Ct. at 903. See Care & Protection of Robert, supra at 59, 556 N.E.2d 993; Commonwealth v. Barboza, 387 Mass. 105, 112, 438 N.E.2d 1064, cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982). We examine each of the factors to determine whether the presumption created by Senate No.2021 meets the requirements of due process.

1. Private interests. First we must identify the private interests. Mathews v. Eldridge, supra. Creating a presumption that custody in a parent is not in the best interests of a child implicates the interest of the parent in his or her relationship with the child, as well as a child's interest in the relationship with his or her family. See Santosky, supra at 755-756, 102 S.Ct. at 1395-1396; Care & Protection of Robert, supra. Because the presumption attaches only after the other parent proves by a "preponderance of the evidence" that a pattern or incident of serious abuse has occurred, the presumption also implicates the child's right to be free from abusive or neglectful behavior. See Care & Protection of Robert, supra at...