It’s important to note that “custody” isn’t some abstract concept. Massachusetts law spells out variations of the term, which include:
When a Massachusetts court awards “sole legal custody,” it means that only one parent has the right and responsibility to make major decisions regarding the child's welfare, including matters of education, medical care, and emotional, moral, and religious development. With “shared legal custody,” both parents are involved in making those decisions.
An award of “sole physical custody” dictates that the child will reside with one parent. However, this is subject to the other parent having reasonable visitation. In a “shared or joint physical custody” scenario, the child resides with each parent for certain periods of time. This can usually be anywhere from a few days a week to six months out of the year. But the sharing setup must ensure that the child has frequent and continued contact with both parents.
Under Massachusetts law, both parents have an equal right to custody. But the ultimate deciding factor in awarding custody is the child’s welfare, often referred to as the “best interests of the child.”
Unlike many other states, the Massachusetts custody statute doesn’t provide a list of factors a court must take into account in determining a child’s best interest. It does state that when considering the happiness and welfare of the child, the court must determine whether or not children’s present or past living conditions adversely affect their physical, mental, moral, or emotional health.
It’s likely, however, that the judge will look at other factors as well, such as:
Note that courts will often consider a child’s preference, if the judge believes the child is old enough to express a rational opinion. It’s up to the judge to determine how much weight to give a child’s wishes.
If a parent has been guilty of domestic violence, the law presumes that granting that parent sole or shared legal or physical custody wouldn't be in the child’s best interest.
If parents have reached an agreement on custody, the court may enter an order incorporating the terms of the settlement in the divorce judgment, unless the judge finds that the agreement isn’t in the child’s best interest.
If there's no agreement, and either parent is requesting shared legal or physical custody, the law requires that the parents submit a shared-custody implementation plan. The plan has to lay out the details of how the parents would manage a shared-custody arrangement, including addressing:
Courts understand the significance of both parents maintaining a nurturing and loving relationship with their children after divorce. That’s why it’s important to establish a viable visitation schedule for the parent who doesn’t have physical custody.
A typical plan is for that parent to spend time with the child one or two evenings a week, and then have the child overnight every other weekend. But that’s not set in stone by any means. An arrangement that best accommodates the parents’ and children’s schedules is usually the most satisfactory solution.
If the court determines that it could be unsafe for a child to be left alone with a parent during visitation, the court can order “supervised” visitation. In this scenario, the parent can only see the child in the presence of a third party, often a trusted family member or friend, and ideally someone the child is comfortable with. There are also supervised-visitation centers and services available. You’d most likely see supervised visitation in situations where:
Massachusetts courts maintain control over custody and visitation even after the divorce case is finished. In light of this, either parent can go back to court to request that a judge modify the existing custody or visitation order. However, to be successful, the parent making the application must prove there’s been a “material and substantial change in circumstances,” and that amending the order is necessary to serve the best interests of the child.
There are any number of situations that could meet the test, and the court will base its decision on the particular facts of each case. One scenario that might qualify for a modification of the order is where a parent plans to move out of state. Another is when, for some reason, a parent is no longer able to properly care for the child.
Custody and visitation are complex legal subjects. Be sure to consult with a knowledgeable divorce lawyer to protect your interests.