What’s the difference between legal and physical custody?
“Legal custody” is the right and responsibility to make major decisions regarding a child's welfare, including:
- education, such as where a child will go to school
- medical care (except in emergency situations), and
- emotional, moral, and religious development, including whether a child will engage in religious activities.
"Physical custody" refers to where a child will live after a divorce or separation. The parent with physical custody has the right to have the child physically present in the home.
What’s the difference between joint and sole custody?
“Sole legal custody” is where only one parent has the exclusive right and responsibility to make major decisions regarding the child's welfare. With “shared legal custody,” both parents have continued mutual responsibility and involvement in these decisions.
With “sole physical custody,” a child resides with and is under the supervision of just one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the child’s best interests.
“Shared physical custody” is where a child has significant periods of time residing with and being under the supervision of each parent; in other words, physical custody is shared in such a way as to ensure frequent and continuing contact with both parents.
How does a court decide who gets custody?
Where parents have reached an agreement on child custody, the court may enter an order that essentially adopts the parents’ agreement, unless their arrangement is not in the child’s best interests.
If parents can’t agree on custody, a court will have to decide how it will be allocated - whether it should be joint or sole.
Best Interests of the Child
By far, the most important factor courts consider when deciding custody, is the best interests of the child. This simply means that every custody decision a court makes must be in the child’s best interests, considering the child's health, welfare, and happiness.
For more information on this topic, see Child Custody in Massachusetts: The Best Interests of the Child, by Susan Bishop.
Temporary Legal Custody
If a hearing is scheduled to determine custody, courts will order that both parents share joint legal custody temporarily and until the time of the hearing. However, a court may order temporary sole legal custody if it finds that shared legal custody would not be in the child’s best interests. There is no similar presumption for temporary shared physical custody.
In determining whether temporary shared legal custody would not be in the best interests of the child, the court shall consider all relevant facts including, but not limited to:
- whether any member of the family abuses alcohol or other drugs
- whether either parent has deserted the child, and
- whether the parents have a history of being able and willing to cooperate in matters concerning the child.
Shared Parenting Plans
If custody is still disputed at the time of the hearing and either parent seeks shared legal or physical custody, the parents must submit a proposed shared custody plan, which addresses all custody issues, including:
- the child's education
- the child's health care
- procedures for resolving disputes between the parents with respect to child-raising decisions and duties, and
- the periods of time during which each parent will have the child, including holidays and vacations, or the procedure by which these times will be determined.
After considering the child’s best interests, the court may accept the shared custody plan submitted by either parent (or by the parents jointly), or it may issue a slightly modified plan.
The court might also reject the proposed plan(s) altogether and instead grant sole legal and physical custody to one parent, with visitation to the other, if it finds this arrangement is in the child’s best interests.
When making custody decisions, courts must consider any history of abuse by a parent toward the other parent and/or the child. A history of abuse will raise a presumption that it’s not in the child’s best interests to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent.
Thus, in cases involving abuse, courts are inclined to grant sole legal and physical custody to the non-abusive parent. A judge may still grant the abusive parent some form of visitation (including supervised visitation), but only if such visitation would be in the child’s best interests.
If a court grants an abusive parent some visitation with the child, the court must provide for the safety and well-being of the child and the abused parent by taking one or more of the following precautions:
- ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party
- ordering visitation supervised by an appropriate third party, visitation center or agency
- ordering the abusive parent to attend and complete a certified batterer's treatment program as a condition of visitation
- ordering the abusive parent to refrain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours before visitation
- ordering the abusive parent to pay the costs of supervised visitation
- prohibiting overnight visitation
- requiring a bond from the abusive parent for the return and safety of the child
- ordering an investigation or appointment of a guardian ad litem or attorney for the child, and
- imposing any other condition that is necessary to provide for the safety and well-being of the child and of the abused parent.
Whatever the court decides, if it has found a pattern or a serious incident of abuse, it must provide written findings that show the judge’s custody decision is in the child's best interests and that it provides for the safety and well-being of the child.
If both parents share custody, does that mean no one pays child support?
No. Typically, the parent with greater income will pay some amount of child support.
Can I stop my spouse from seeing the children if I don't get my child support payments?
No. Child support and visitation rights are separate issues. If the paying parent has failed to pay court-ordered child support, contact a local attorney for help. You may be able to file a contempt action to collect overdue child support.
If you can’t afford an attorney, the Child Support Enforcement Division (CSE) of the Massachusetts Department of Revenue assists parents in establishing paternity, child support orders, health insurance orders, and collecting child support. You can access the CSE website by clicking here.
Similarly, you should not just stop paying child support if your child’s other parent is interfering with your custody or visitation time. You may have to ask a judge to enforce the original custody and visitation orders.
For more information on custody orders and parenting plans, see M.G.L.A. 208 § 31
For more information on visitation issues, see M.G.L.A. 208 § 31A