Child Custody

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Child custody refers to who has legal authority over the life of a child. The Massachusetts Probate and Family Court has “jurisdiction” over all issues regarding the custody and support of children in family matters involving the care, custody and support of children.

  • In divorce cases, it is automatically presumed that the married spouses are both the biological parents of all children born during the marriage. These married parents are legally presumed to have joint and equal rights over that the child until there is a court order that states otherwise. In other words, Child Custody is presumed to be shared by both parents unless a judge finds that a shared arrangement is not in the best interests of a child, or that the parents’ history of uncooperative interactions regarding child rearing that negatively impacts on the child.

  • In paternity cases, in which the parents are not married, the biological mother is presumed the sole legal and physical custodian of the child until the court orders otherwise.

  • In most cases, parents are able to reach an agreement on child related issues, so that both are actively involved in important decisions regarding the child, such as educational, medical and religious matters. Therefore, when 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 cannot agree on custody, a court will have to decide how custody will be allocated – whether it should be joint between the parents or one parent should be awarded sole custody. When determining the home in which the child shall principally reside, the court strives to reach a decision that is in “the best interests of the child.” This “best interest” standard is the most important factor courts consider when deciding custody, as the decision includes consideration of the child’s health, welfare, and happiness.

Legal custody” is the right and responsibility to make major legal 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.

1. Sole legal custody

Sole legal custody means that one parent has the right and responsibility to make major legal decisions regarding the child’s welfare; including matters of education, medical care and emotional, moral and religious practice.

2. Shared legal custody

Shared legal custody means continued joint parental responsibility and involvement in major decisions regarding the child’s welfare; including matters of education, medical care, and emotional, moral and religious development.

Important note: Legal and physical custody can be split and shared between the parents. For example, it is most common for the parents to share legal custody, and the child to principally reside with the other parent. That would define that parent as having physical custody of the child subject to the other parent’s time with the child. In the event the parents cannot agree, then the probate and family court judge may use his or her discretion to decide what is in the child’s best interest.

Physical custody” refers to where a child primarily will live after a divorce or separation. The parent with physical custody has the right to have the child physically present in the home for all times that the child is not spending time with the other parent.

1. Sole physical custody

Sole physical custody means that a child principally resides with and is under the supervision of only one parent, subject to reasonable parenting time or visitation by the other parent, unless the court decides that such parenting time/visitation would not be in the best interest of the child.

2. Shared physical custody

Shared physical custody means that a child has periods of residing with and being under the supervision of each parent, and that physical custody is shared by the parents in such a way that assures the child’s frequent and continued contact with both parents.

Important note: Legal and physical custody can be split and shared between the parents. For example, it is most common for the parents to share legal custody, and the child to principally reside with the other parent. That would define that parent as having physical custody of the child subject to the other parent’s time with the child. In the event the parents cannot agree, then the probate and family court judge may use his or her discretion to decide what is in the child’s best interest.

Petitions to Remove the Child from Massachusetts: At the time of divorce, paternity action or years later, a parent may want to move to another state or country. Sometimes it is for financial or emotional reasons, such as a parent who wants to return to a hometown to be closer to friends and family. Other situations may include a remarriage or job advancement that requires relocation to another state or country. In divorce cases, if there is no written agreement between the parents, a court order must be obtained to allow a child to move with a parent out of Massachusetts. In paternity cases, since the mother is the presumed sole legal and physical custodial parent, a biological father’s right to object to a mother’s unilateral decision to move the child to another state requires a court order protecting his parental rights which could preclude mother’s removal of the child outside of Massachusetts.

A judicial decision is based on a complex analysis that oftentimes involves the appointment of an investigator, such as a guardian ad litem (or GAL). The statute regarding “removal” of a child in a divorce case or a paternity case with a court order for care and custody of a child, makes it unlawful to remove a child from Massachusetts without the consent of the other parent or order of the court.

Removal – Sole Custody: Where one parent has sole physical custody of the child, the courts will do a two-part analysis in deciding requests for removal. First, the court will see whether the custodial parent is requesting a move for a good and sincere reason, and whether or not the move will result in a real advantage to the custodial parent. Secondly, the court must decide if the move is in the child’s best interest.

Removal – Joint Custody: For parents who share joint physical custody of their child, a judge’s willingness to allow one parent’s interest in relocating with the child is often diminished. Both parents have equal rights and responsibilities with the child. Therefore the importance of one parent’s advantage in relocating any significant distance from the child’s current residence is greatly reduced. Therefore, the “advantage” to the moving parent is only one factor in the overview of a child’s best interests.

While child custody is most commonly dealt with in divorce and paternity proceedings, it is important to note that there are three kinds of custody cases. Divorce and Paternity cases primarily involve the first type- Parental Disagreements. The remaining custody actions involve litigation between the parents and another, such as a grandparent seeking custody or visitation rights from an estranged parent of the grandchild, or the Department of Children and Families seeking to take custody from an allegedly unfit parent.

  1. Parental Disagreements: during a divorce or paternity matters, two parents cannot agree on custody arrangement; school, living, education, religious practices followed (parent v. parent)

  2. Dispute between parent and non parent: grandparent is very common; law favors parent over legal stranger (grandparent) as long as parent is acting reasonably

  3. Parent & State: State is attempting to take child away from the parent. Parent has advantage because state has to prove that the parent is unfit (more than mere preponderance of evidence)

High Conflict Cases and Parental Alienation Syndrome: This is the unfortunate situation where one parent uses a child or children to advance his or her own divorce agenda, or cause damage to the other parent’s bond with the child. This behavior can include the misuse of the legal process (such as bogus restraining orders, allegations of child abuse) and cause psychological damage to the developing child. It is imperative for an attorney to immediately recognize this behavior and take action to minimize the negative impact.