Domestic Violence Allegations in Massachusetts Divorce and Custody Disputes: Motive to Fabricate as a Defense

By Attorney Joe Serpa | Georgetown University Law Center | 30 Years of Massachusetts Criminal Defense

Updated July 2026

Most domestic violence complaints in Massachusetts are real, and I treat them that way. A smaller and very particular category is different. It appears when a marriage is ending, when custody is contested, and when a criminal charge or a restraining order carries an advantage that has nothing to do with safety. An arrest, an emergency order under G.L. c. 209A, or a report to the Department of Children and Families can hand one parent exclusive use of the house, move physical custody overnight, and change the leverage in every mediation session that follows. I have defended these paired criminal and family court cases for thirty years, in the Boston Municipal Court divisions, Quincy, Dedham, Newton, and the surrounding District Courts. Defending them is its own discipline, and this is how I approach a domestic violence accusation that surfaces inside a divorce.

The Advantage an Allegation Creates

I start by naming the incentive honestly, because a jury and a judge will understand it. In a contested divorce, a criminal charge or a 209A order is worth something concrete. It can produce exclusive use of the marital home before any trial, because a no-contact condition or a vacate order forces one spouse out. It can shift the custody dynamic, because a parent facing a criminal charge or an active restraining order starts the Probate and Family Court case on the defensive. It can supply leverage in mediation, in the division of assets, and in the negotiation over parenting time. None of this means every allegation raised during a divorce is false. It means the surrounding stakes are real, they are documented in another courthouse, and they are a legitimate subject of inquiry. I do not appear in the Probate and Family Court myself, but I coordinate closely with the client’s family law counsel so that what happens in the criminal session helps the custody case rather than damaging it.

Cross-Examination on Bias and Motive to Fabricate

The right to confront an accuser about bias and motive is not a courtesy. It is a constitutional right. In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court held that the Confrontation Clause guarantees a defendant the opportunity to cross-examine a witness about bias, even when doing so intrudes on interests the state would otherwise protect. Massachusetts enforces that right with force. In Commonwealth v. Joyce, 382 Mass. 222 (1981), the Supreme Judicial Court held that a complainant’s motive to fabricate is so important that the rape-shield statute must yield to it, and that a defendant is entitled to show the jury a reason the accuser would lie. In Commonwealth v. Bohannon, 376 Mass. 90 (1978), the court recognized that prior false allegations of the same kind can be a proper subject of cross-examination where the foundation is met. A pending divorce, a custody fight, and a dispute over the house and the money are exactly the kind of concrete, provable stakes that entitle the defense to ask the jury a simple question: what did this witness stand to gain?

The Timeline as Evidence

In these cases the sequence of events is not background. It is proof. I build a single timeline that places the criminal report next to the family court docket, because the order in which things happened often tells the jury more than the words of any one witness. I document the gap between the alleged incident and the moment it was first reported. I document what was pending in the Probate and Family Court in the days before the report: a motion for temporary orders, a custody evaluation, a mediation date, a demand over the house. And I document whether the relief requested in the 209A application mirrors the relief being sought in the divorce, because a restraining order that asks for exactly what one side wants in the custody case is evidence a fact finder can weigh. A first complaint that arrives the week a custody motion is filed looks different from one that arrives in the middle of an ordinary week, and the difference belongs in front of the jury.

The Documents Behind the Story

The accounts in these cases are contested, but the documents usually are not, and the documents often tell a different story than the affidavit. Text messages, emails, and the records of a co-parenting application can show that the parties were communicating cordially the day after the alleged assault, that the accuser invited contact, or that the fear described in a sworn application does not match how the parties behaved at the time. I gather that record early, before it is deleted, because a message thread showing ordinary, friendly contact in the window when the accuser claims to have been terrified is powerful cross-examination. Photographs, medical records, and the timing of any injuries matter for the same reason. The goal is not to call the accuser a liar in the abstract. It is to place the accuser’s own words and conduct next to the allegation and let the jury measure the distance.

When Both Parties Have Injuries

Many of these cases are not one-sided. Both people have marks, both have a version, and the person who called first is treated as the victim while the person who answered the door is charged. Massachusetts law gives the defense a specific tool for that situation. Under Commonwealth v. Adjutant, 443 Mass. 649 (2005), where self-defense is a live issue, a defendant may introduce evidence of the complainant’s own prior violent conduct to show that the complainant, not the defendant, was the first aggressor. That evidence, combined with cross-examination on the physical facts of who was injured and how, can turn a charge that was filed on a single phone call into a genuine question about who started it.

The Restraining Order and Its Own Standard

A 209A order runs on a different track from the criminal case, and clients are often surprised by how easily one issues. An initial order can be granted the same day, on the plaintiff’s sworn account alone, without the defendant present, because the statute is designed to act quickly on a showing of abuse as defined in G.L. c. 209A, § 1. The real fight is at the hearing that follows, and later at each extension. Under Iamele v. Fiorentino, 470 Mass. 826 (2015), a judge extending an abuse prevention order must decide whether the plaintiff has shown a reasonable fear of imminent serious physical harm, measured on the totality of the circumstances rather than on the original allegation alone. Getting an entrenched order removed is harder still. Under MacDonald v. Caruso, 467 Mass. 382 (2014), a defendant who moves to terminate a permanent order must show a significant change in circumstances such that the plaintiff no longer has a reasonable fear of imminent serious physical harm. These standards matter because an order entered during a divorce can outlast the divorce, and because violating one, even a violation invited by the other side, is a separate crime under G.L. c. 209A, § 7. I litigate the order and the criminal charge together, and I explain to every client that the order is what turns a defensible case into a second prosecution the moment it is violated. The paths to terminating, modifying, or expunging a 209A order are set out on our dedicated page, and the order itself is treated in full on our page on 209A abuse prevention orders.

When the Accuser Recants or Will Not Testify

Massachusetts prosecutes domestic violence under a no-drop policy, which means the decision to go forward belongs to the Commonwealth and not to the person who called the police. The underlying charge is often assault and battery on a family or household member under G.L. c. 265, § 13M, and the prosecutor can press it even when the accuser no longer wants to. What the prosecutor cannot always do is prove it without the accuser’s live testimony. Under Crawford v. Washington, 541 U.S. 36 (2004), a testimonial statement, including a statement to the police, cannot be admitted against the defendant unless the person who made it testifies and is available for cross-examination. The Commonwealth’s usual answer is the doctrine of forfeiture by wrongdoing, but the Supreme Court narrowed that route in Giles v. California, 554 U.S. 353 (2008), holding that a defendant forfeits the confrontation right only where the defendant intended to make the witness unavailable. Where an accuser recants or declines to testify of their own accord, and the defendant did nothing to bring that about, the Commonwealth may be left without admissible evidence to prove the charge. That is also why a client can never be the reason the witness goes quiet: a change of heart the client had no hand in can help the defense, while any hint of pressure creates a new and more serious charge.

How the Criminal, Restraining-Order, and DCF Cases Interact

A divorce-driven allegation usually sets three or four proceedings in motion at once, and each one can feed the others. There is the criminal charge in the District Court or the Boston Municipal Court. There is the 209A order. There is often an investigation by the Department of Children and Families, which begins with a report under G.L. c. 119, § 51A and proceeds to an investigation under § 51B, and which can affect custody directly. And there is the divorce itself in the Probate and Family Court. A statement made in any one of these lands in all of them. A parent’s account to a 51B investigator, an affidavit filed in the probate case, and a statement to the police can each be used to impeach the others, which is why a client cannot afford to give an unprepared account anywhere. I treat the four cases as one problem, and I make sure the client says nothing in one forum that will be read back in another.

Conduct While the Case Is Pending

The single most common way a defensible case becomes a hopeless one is the client’s own conduct after the charge. The instinct to explain, to apologize, or to ask the other parent to drop it is powerful, and it is a mistake. Every term of every order has to be followed to the letter, including a no-contact condition that feels unfair when children have to be exchanged. All communication runs through counsel or through whatever narrow, court-approved channel exists for the children. And a client can never ask the complainant to recant or to soften the story, because pressure on a witness is its own felony under G.L. c. 268, § 13B, the subject of our page on intimidation of a witness. Even a genuine, unpressured change of heart by the accuser does not end the case on its own, a point I explain on our post on recantation in Massachusetts domestic violence cases, and the lawful routes to ending a charge are described on our page on how Massachusetts criminal cases get dismissed. Discipline in the weeks after the charge is not passive. It is the defense.

How I Defend These Cases

I defend the criminal case, I litigate the 209A matter, and I manage the response to the Department of Children and Families, and I coordinate closely with the client’s family law counsel so the criminal and family court strategies reinforce each other rather than collide. I build the timeline, I prepare the bias and motive cross-examination, and I hold the line on the client’s conduct so that a single accusation does not multiply into new charges. I have done this work for thirty years across Greater Boston, and I understand both the criminal courtroom and the custody fight that is driving it. Whether the exposure is a misdemeanor or a felony is explained on our page on Massachusetts felonies and misdemeanors, and the full practice is set out on our domestic violence defense page. If you have been accused as a divorce or custody fight is beginning, call me at 617.936.0201 for a free and confidential consultation.