Whether you're going through a divorce or a break-up, if you have minor children, you'll need to discuss how to split custody of your children. When you're talking about a parenting plan with your ex, generally, you'll need to determine where the child will live, which parent will care for the child on a day-to-day basis, and who will make important decisions involving the child.
Massachusetts custody laws break custody into two categories: legal custody and physical custody. 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.
The court can award sole or joint legal or physical custody or a combination of both. In Massachusetts, the court refers to "joint" custody as "shared" custody. Shared legal custody means that both parents are mutually responsible for and can take part in making decisions regarding the child's welfare, including matters concerning education, medical care, and emotional, moral, and religious development. Shared physical custody means that a child will reside with both parents, ensuring frequent and continued contact with each parent.
It's common for parents to share legal custody while one parent remains the primary custodial parent. If the court awards one parent physical custody, the judge will create a parenting time (visitation) schedule for the other parent to ensure the child and parent can continue developing a quality relationship.
Shared physical custody does not necessarily require an equal division of time between parents, so the judge will approve any parenting schedule that works for the family if it meets the child's needs.
A judge making a custody determination in a Massachusetts divorce case will be guided by the best interests of the children involved. The law requires judges to base custody 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 children's welfare and happiness are the main concerns when making custody decisions, and 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. (Mass. Gen. Laws ch. 208 §31.)
Additionally, the judge may consider:
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 in matters affecting the child.
Except for 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.
The court considers a parent 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. (Mass. Gen. Laws ch. 208 §31.)
In most cases, the court presumes it's in the child's best interest to have a relationship with both parents, regardless of custody titles. If the court awards sole physical custody to one parent, the judge will create a parenting time or visitation schedule for the non-custodial parent and the child. A typical schedule may include alternating weekend overnight visits, a mid-week dinner, alternating holidays, and split school vacations and summer breaks.
Visitation orders outline the minimum amount of time a non-custodial parent can spend with the child. The court always encourages parents to work together to ensure that both parents have a quality relationship with the child. Unless the court expressly prohibits a parent from attending, non-custodial parents can attend school functions, access the child's school and medical records, and attend extracurricular activities, regardless of whether the event occurs during that parent's scheduled visitation.
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 the other parent. A court may require that an abusive parent's visitation be supervised or may impose conditions for the parent before the visitation, such as entering mental health counseling or a drug treatment, violence prevention, or parenting skills program. (Mass. Gen. Laws ch. 208 §31A.)
Massachusetts law specifically prohibits a judge from awarding any visitation rights to a parent who has been convicted of first-degree murder of the other parent, unless the child is old enough to agree to the visitation and the child's legal guardian also agrees to the visitation. (Mass. Gen. Laws ch. 208 §28.)
If parents can agree upon permanent custody arrangements, they can make their own parenting plan. (Mass. Gen. Laws ch. 208 §31.) 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:
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.
As time passes, parents may discover that the current custody or parenting time order is no longer appropriate or serving the child's best interests. Although the court favors stability for children, it also allows either parent to file a formal request (motion) to review or modify a custody or parenting time order.
As with any custody-related issue, it's always best for parents to try and work together to determine what schedule works best for both parents and the children. If, however, you're unable to agree, the court will consider your motion to modify custody if you can prove both of the following factors exist:
If the court believes a modification is necessary, the judge will review the case using the same standards, as discussed above.
If you're going through a divorce in Massachusetts, or if you're beginning the process of a custody battle, speak with an experienced family law attorney near you. You can also visit the Massachusetts government website for more information and resources on child custody and visitation.