The Best Interests Standard
A judge making a custody determination in a Massachusetts divorce case will be guided by the best interests of the children involved. This means that custody decisions are based only on the needs of the children and neither parent begins with any greater right to custody than the other. Massachusetts law does not list specific factors to be considered in determining a child’s best interests, allowing judges a great deal of discretion in making decisions. The law does provide, however, that the children’s welfare and happiness are the main concerns, and that a court must take into account any adverse effects a child’s present or past living conditions may have had on the child’s physical, mental, moral, or emotional health.
Custody and Visitation Options
Legal custody refers to a parent’s authority to participate in major decisions regarding a child’s education, health care, and emotional, moral, or religious development. Physical custody refers to the time that a child is residing with or is under the care and supervision of a parent. Joint physical custody does not necessarily require an equal division of time between parents, so any parenting schedule that works for the family could be considered appropriate and be approved by the judge.
A Massachusetts court will order temporary joint legal custody at the beginning of a divorce case unless the facts demonstrate that this would not be in a child’s best interests. Some facts that would support a temporary award of sole legal custody rather than joint legal custody would be one parent’s abandonment of the child or abuse of alcohol or drugs, or the inability of the parents to cooperate with each other in matters affecting the child.
With the exception of the initial temporary award of shared legal custody, there is no presumption in favor of joint legal or physical custody. There is however, a presumption against awarding sole or joint legal or physical custody to an abusive parent. A parent is considered to be abusive if the parent has repeatedly caused, attempted to cause, or made serious threats of causing, bodily injury to either the child or the other parent. A single instance of such behavior is sufficient if the actual or threatened injury is serious or if there has been a sexual assault.
When a judge finds that a parent has been abusive, an order of visitation will include whatever provisions are necessary to ensure the safety of the child or of the other parent. A court may require that an abusive parent’s visitation be supervised or may impose conditions for the parent prior to visitation, such as entering mental health counseling or a drug treatment, violence prevention, or parenting skills program.
If parents are able to agree upon permanent custody arrangements, they can make their own parenting plan. A court will generally adopt such a plan unless it is contrary to a child’s best interests. If either parent seeks permanent joint legal or physical custody and the other parent objects, each parent must submit a parenting plan to the court. The proposed plans must include a residential or visitation schedule, including a holiday and vacation schedule or a method for implementing such a schedule; provisions indicating how the parents will make decisions regarding the child’s education and health care; and provisions describing how parents plan to resolve any future disputes. The court may accept or modify a plan submitted by one parent or by both parents jointly, or may reject the submitted plans and order a different parenting arrangement.