Child Custody

If you have a child(ren) and are going through a divorce or are considering a custody action for your children out of wedlock, tough decisions have to be made that will affect you and your child(ren)’s lives for many years to come.  Child custody can be one of the most contentious and difficult issues you have to face.  Both parents may disagree on who is in the best position to have custody and decision-making power for their children.  These decisions are not easy and will have long lasting implications for the entire family.

Best Interest of the Child(ren) Standard:

The Massachusetts Probate and Family Courts use the standard of the “best Interest of the child(ren)” when making child custody determinations.  As M.G.L. c.208 § 31 states, “the happiness and welfare of the children shall determine their custody.”  Massachusetts Statutes do not list specific factors that the court has to follow when determining what is in the “best interest of the child(ren);” however; there are several factors that hold some consideration when courts are making that decision.

Some of these factors are:

  1. the age, sex, and stage of development of the child(ren);
  2. the child(ren)’s present state of adjustment in his or her home, school, and community;
  3. the present and prior interactions and interrelationships of the child(ren) with parents, siblings, extended family members;
  4. the preference of an older child(ren);
  5. the mental and psychosocial health and status of both the child(ren) and the parents;
  6. comparison of the economic, physical, and emotional environments of the potential parents;
  7. evidence of each parent’s home environment;
  8. a comparison of the capacity of the potential parents ability to foster growth and development, to promote the education of the child, to give affection, love, guidance, and moral and spiritual training to the child(ren), and to cooperate with, provide access to, and foster the affection and respect in the child(ren) for other caregivers in the child’s life;
  9. the impact of a parent’s religious teachings on a child(ren);
  10. the judge’s own impressions on interviewing the child(ren) privately in chambers;
  11. alcohol or drug abuse by the parent; and
  12. a history of domestic violence and its effect on the child(ren).

Courts will make efforts to keep the child(ren) in their current home, school, and neighborhood to spare the child(ren) any additional disruptions, when appropriate.

Child(ren) are allowed some input as to which parent they would like to reside; however, this becomes more of a factor as the child(ren) become old enough to express a clear and consistent desire to make his or her primary residence with one parent.  Currently there is no fixed age that a child(ren) can make such a decision; however, as the child(ren) enters into his/her early teen years the courts have tended to give much more consideration to the child(ren)’s desires.  That said, at least one court has announced that enters temporary orders respecting physical custody or parenting time, the child is not entitled to disobey the court’s orders.

Types of Custody Arrangements:

In Massachusetts, the different types of child custody are as follows:

  1. Sole legal custody:  This is where one parent has the right and responsibility to make major decisions regarding the child(ren)’s welfare including matters of education, medical care and emotional, moral and religious development.
  2. Shared legal custody: This is where both parents have the continued mutual responsibility and involvement in major decisions regarding the child(ren)’s welfare including matters of education, medical care and emotional, moral and religious development.
  3. Sole physical custody: This is where the child(ren) reside with and are under the supervision of one parent, subject to reasonable parenting time (formerly known as “visitation”) by the other parent, unless the court determines that such parenting time would not be in the best interest of the child(ren).
  4. Shared physical custody: This is where a child(ren) have periods of time residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child(ren) frequent and continued contact with both parents.

Pursuant to M.G.L. c. 208, § 31, “the rights of the parents shall, in the absence of misconduct, be held to be equal.”  Although Ch. 208 addresses divorce proceedings, this concept is enforced equally with respect to out of wedlock children and custody disputes.

Temporary Orders:

The Massachusetts Probate and Family Court has the jurisdiction to enter temporary custody orders in pending divorce, separate support, custody paternity, and abuse prevention actions.  Even though temporary orders are entered without prejudice, usually the temporary orders establish the baseline on which following judgments and orders will follow. 

Modification:

A non-temporary child custody judgment made during a divorce or legal separation is a final judgment of the court. To modify a child custody judgment you must show that there has been a “material and substantial change in circumstances” that has occurred and that the judgment for modification is necessary and in the best interest of the child(ren). A change to the child custody agreement may also be made between the two parents and having such agreement presented to the court for approval.