What Age Can a Child Stay Home Alone in Massachusetts?

Massachusetts law sets no minimum age at which a parent can leave a child home alone. No Massachusetts statute names an age for staying home alone, for babysitting a younger brother or sister, or for waiting alone in a parked car. A parent who leaves a child alone can still face a criminal charge of reckless endangerment of a child under G.L. c. 265, § 13L, and a neglect investigation by the Department of Children and Families (DCF).

The Appeals Court has held that whether leaving a child alone is reckless endangerment depends on the totality of the circumstances. The circumstances include the child’s age and maturity, how long the parent was away, how quickly the child could contact the parent, the dangers the child faced, and the precautions the parent took. Commonwealth v. Santos, 94 Mass. App. Ct. 558, 561 (2018). The facts are different for a ten-year-old left home alone after school for an hour, with a working phone and a neighbor next door, than for a three-year-old left alone in an apartment for an afternoon.

Attorney Joe Serpa represents parents accused of reckless endangerment of a child at clerk-magistrate hearings, and parents charged in the District Court and the Boston Municipal Court. Attorney Serpa also advises parents whom DCF contacts after a report that a child was left alone.

The Circumstances Courts and DCF Consider

The Appeals Court has listed the circumstances a court considers when a caregiver leaves a child unsupervised. Santos, 94 Mass. App. Ct. at 561. The list includes the following.

• The seriousness of the dangers the child faced, such as a stove, a pool, a busy street, or medication the child could get to
• How easily the child could contact the parent, by phone or in person
• How long the parent was away
• The child’s age and maturity
• The precautions the parent took, such as locking the doors, arranging for a neighbor to check in, or leaving emergency numbers
• Any other fact that shows whether the parent acted recklessly

The Department of Children and Families applies its own standard. DCF defines neglect as a caregiver’s failure, whether deliberate, negligent, or due to inability, to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care. A caregiver’s inability is not neglect when the inability is due solely to inadequate economic resources or solely to a disability. 110 CMR 2.00. DCF assesses what degree of supervision is minimally adequate for the particular child and the particular circumstances. Courts give great deference to DCF’s assessment. Lindsay v. Department of Social Services, 439 Mass. 789, 799 (2003).

Leaving a Child Home Alone and Reckless Endangerment of a Child

A parent accused of leaving a child alone ordinarily faces a charge of reckless endangerment of a child under G.L. c. 265, § 13L. The Commonwealth must prove three elements beyond a reasonable doubt. The first element is that the child was under eighteen. The second element is a substantial risk of serious bodily injury or sexual abuse to the child. The third element is that the parent wantonly or recklessly created the risk, or wantonly or recklessly failed to take reasonable steps to reduce the risk when the parent had a duty to act. Commonwealth v. Coggeshall, 473 Mass. 665, 667-668 (2016).

A parent acts wantonly or recklessly under § 13L only when the parent is aware of a substantial and unjustifiable risk and consciously disregards the risk. G.L. c. 265, § 13L. The Commonwealth must prove what the parent knew, not what a reasonable parent would have known. Coggeshall, 473 Mass. at 670. The risk must be a good deal more than a possibility. The parent’s disregard of the risk must also be substantially more than negligence. Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008). Serious bodily injury means an injury that results in permanent disfigurement, protracted loss or impairment of a bodily function, limb, or organ, or a substantial risk of death. G.L. c. 265, § 13L.

The Commonwealth does not have to prove that the child was hurt. The crime of reckless endangerment requires evidence of a substantial risk of injury, not evidence of an injury. Santos, 94 Mass. App. Ct. at 564, quoting Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 261 (2013). A judge can sentence a person convicted under § 13L to up to two and one-half years in the house of correction. G.L. c. 265, § 13L.

The Santos Decision

In Santos, a mother set her three-year-old daughter down in the living room to watch cartoons and went to the upstairs bathroom for ten to fifteen minutes. The child left the apartment and walked about a fifth of a mile to an elementary school playground, where a school employee found her. The child had wandered from the home once before. The parents had installed a deadbolt on the apartment door after that earlier incident. The mother searched for about ten minutes, assumed the child was with a neighbor’s child, and went home without calling the police. 94 Mass. App. Ct. at 558-560.

The Appeals Court held that leaving the child in front of the television while the mother used the bathroom did not establish probable cause of reckless endangerment. The mother stayed inside the home, remained accessible to the child, and left for only a few minutes. No condition in the home presented a particular risk of harm. The parents had also installed the deadbolt as a precaution. Id. at 561-562.

The Appeals Court found probable cause, however, in the mother’s conduct after she discovered that the child was missing. A parent whose young child has wandered off has a duty to search for the child. The mother’s decision to stop searching, without calling the police, established probable cause that she wantonly or recklessly failed to take reasonable steps to protect the child. Id. at 562-563. The Appeals Court therefore set aside the dismissal of the complaint and sent the case back to the District Court. Id. at 564.

Leaving a Child Alone in a Car

Massachusetts has no statute that sets an age at which a child can wait alone in a parked car. A parent who leaves a child in a car can still face a charge of reckless endangerment of a child under § 13L, depending on the child’s age, the length of time, the weather, and the distance between the parent and the car.

A brief absence is not abandonment of a child. In Commonwealth v. Nebel, 59 Mass. App. Ct. 316, 320-322 (2003), a father left his sleeping three-and-a-half-year-old daughter alone in his car at a highway rest area while he went a short distance away, for an undetermined time. The Appeals Court reversed his conviction under G.L. c. 119, § 39, for abandoning a child under the age of ten. A brief and temporary absence, with the intent to return shortly, is not abandonment. The Appeals Court wrote that “[t]o equate abandonment with poor judgment . . . is a leap we are not prepared to take.” Id. at 321.

DCF can find neglect after a longer absence. In Lindsay, 439 Mass. at 791-793, 799-800, a day care worker left a three-year-old child alone in a vehicle outside the day care center for a period of hours. The Supreme Judicial Court upheld DCF’s finding of neglect, even though the child was not physically hurt. The Supreme Judicial Court noted that a small child left in a vehicle in the summer can suffer severe injury from the heat, and that an unattended child can be abducted. Id.

Older Brothers, Sisters, and Babysitters

Massachusetts law sets no minimum age for an older child who babysits a younger brother or sister. The police, DCF, and the courts consider the same circumstances when a parent leaves children in the care of an older sibling, including the older child’s age and maturity, the younger child’s age and needs, and how long the parent is away. DCF’s regulations treat a babysitter under eighteen as a caregiver, so DCF can investigate a report of neglect against a teenage babysitter as well as against the parent. 110 CMR 2.00.

DCF Investigations After a Child Is Left Alone

Police officers, teachers, school staff, and other professionals are mandated reporters. A mandated reporter must report to DCF when the reporter has reasonable cause to believe that a child is suffering from abuse or neglect. G.L. c. 119, § 51A. The police often file a report with DCF after a call about a child left alone. DCF then screens the report and can open an investigation under G.L. c. 119, § 51B, separate from any criminal case.

DCF can support a finding of neglect without evidence that the child was hurt. Lindsay, 439 Mass. at 795-796. The Commonwealth can later offer a parent’s statements to a DCF investigator as evidence in the criminal case. A parent facing a DCF investigation and a possible criminal charge at the same time should speak with a lawyer before speaking with the DCF investigator.

Criminal Charges When a Child Left Alone Is Hurt

A parent can face a more serious charge when a child left alone is injured. Under G.L. c. 265, § 13J(b), a person who has care and custody of a child under fourteen commits a crime by wantonly or recklessly permitting bodily injury to the child. A judge can sentence a person convicted of permitting bodily injury to up to two and one-half years in the house of correction. Permitting substantial bodily injury to a child under fourteen is a felony. A judge can sentence a person convicted of permitting substantial bodily injury to up to five years in state prison. G.L. c. 265, § 13J(b). The site’s page on assault and battery on a child explains § 13J.

How a Home-Alone Case Begins

The police can arrest a parent at the scene or apply for a criminal complaint. A person who is not under arrest for a misdemeanor such as reckless endangerment of a child ordinarily receives notice and a clerk-magistrate hearing before any complaint issues. G.L. c. 218, § 35A. The clerk-magistrate decides whether to issue the complaint. A denial prevents a complaint, an arraignment, and a Criminal Offender Record Information (CORI) entry from that application.

The Defense of a Parent Accused of Leaving a Child Alone

Counsel defending a parent accused of leaving a child alone ordinarily starts with the circumstances that Santos identifies. Counsel gathers evidence of the child’s age and maturity, the length of the absence, the parent’s distance from the child, the child’s ability to call the parent, and the precautions the parent took. Text messages, phone records, a neighbor’s statement, and evidence of the child’s school or activity schedule can establish those facts.

The Commonwealth must prove that the parent was aware of a substantial risk of serious bodily injury and consciously disregarded the risk. Coggeshall, 473 Mass. at 670. Counsel can offer evidence that the parent believed the child was safe, and the reasons for that belief. In Santos, the Appeals Court held that a parent’s brief absence inside the home, without other aggravating circumstances, did not amount to wanton or reckless conduct. 94 Mass. App. Ct. at 561-562.

A parent accused of leaving a child alone may also face questions from DCF, a school, or the Probate and Family Court in a custody dispute. Counsel coordinates the parent’s response in each proceeding, because the Commonwealth or another party can offer a statement made in one proceeding as evidence in another.

Frequently Asked Questions

Related Serpa Law Office Resources

• Reckless Endangerment of a Child in Massachusetts Under G.L. c. 265, § 13L
• Is Spanking a Child a Crime in Massachusetts?
• Assault and Battery on a Child in Massachusetts Under G.L. c. 265, § 13J
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• Massachusetts Clerk-Magistrate Hearing Lawyer
• Massachusetts Criminal Charges Defense