One of the most frightening questions a parent can face during a separation or divorce is this:
“Can my spouse legally stop me from seeing my children?”
In Massachusetts, the short answer is usually no—but there are important exceptions and practical realities that every parent should understand.
Under Massachusetts law, both married parents have equal rights to their children unless and until a court orders otherwise. Neither parent has the legal authority to unilaterally cut off the other parent’s access to the children.
This is true even if: The parents are separated, one parent has moved out of the marital home, or a divorce has already been filed. For married parents, only a judge has the legal authority to limit or prevent a parent from having access to their children.
A judge in the Probate and Family Court—or in a domestic abuse case—can limit or suspend a parent’s contact with children. This can occur in a divorce, custody action, or restraining order proceeding. A judge may: suspend parenting time entirely, require supervised visitation, or impose conditions on contact. Judges impose these restrictions only when they are convinced that a parent poses a threat to the child’s safety or well-being or to the other parent’s safety. This can include concerns involving abuse, neglect, untreated substance abuse, or serious mental health issues.
In a divorce case, judges typically allocate parenting time between both parents because it is generally in a child’s best interest to have: stability, predictability, and ongoing relationships with both parents.
There are rare situations where a parent poses a genuine, immediate danger to the other parent or the children. Examples may include: threats of violence, active substance abuse, or child neglect or abuse. In these situations the police may be called to protect the children and the other parent. The police may remain on the premises until they believe the danger has passed or they can assist a parent in obtaining an emergency restraining order, including by telephone. If a crime has been committed, the police may arrest the violator.
In Massachusetts, neither parent should try to obtain or prevent access to children in a way that risks violence or confrontation. If your spouse is refusing access to the children without a court order, there is always a legal alternative. You can file a Complaint in Probate and Family Court and seek temporary or emergency orders granting parenting time. Judges expect parents to use the court system—not self-help—to resolve disputes involving children.
If there is a dispute over access to the children, you should assume that a judge may later review every decision you make concerning your children’s well-being. You should keep records of missed parenting time and save texts or emails denying access. You should document all problems with your spouse relating to communicating or seeing your children. You should avoid angry, threatening, or emotional messages. Assume every communication may someday be read aloud in a courtroom.
If your spouse is preventing you from seeing your children, do not take the children without permission or show up uninvited at your spouse’s home. Even when you are right, the wrong response can seriously harm your case.
