If you’re getting divorced in Massachusetts and have minor children, you will need to deal with child custody issues before your divorce is final.
Here’s what you need to know to help you through the process.
- Types of Child Custody in Massachusetts
- How is Child Custody Determined in Massachusetts?
- What is “The Best Interests of the Child” Standard?
- Factors a Massachusetts Judge Must use When Deciding Custody
- What is a Parenting Plan?
- Modifying a Massachusetts Custody Order
- Massachusetts Child Custody FAQs
Types of Child Custody in Massachusetts
Massachusetts custody laws recognize legal custody and physical custody.
Legal custody refers to a parent’s authority to participate in major decisions regarding a minor child’s education, health care, and emotional, moral, or religious development.
Physical custody is when a minor child lives with or is under a parent’s care and supervision.
In both cases, Massachusetts courts can award sole custody or joint legal or physical custody, or a combination of both.
Shared physical custody does not mean an equal division of time between parents. It’s common for parents to share legal custody while one parent remains the primary custodial parent. When a judge awards one parent physical custody, they will create a parenting time schedule for the other parent to ensure a continuing quality relationship.
The judge always places a child’s best interests first in a custody case, so a parenting time schedule will be approved if it works for the family and meets the child’s needs.
How is Child Custody Determined in Massachusetts?
Massachusetts courts presume it is in the child’s best interest to have a relationship with both parents. The court encourages parents to work together and ensure both parents have a quality relationship with the child.
Unless a child custody order expressly prohibits it, non-custodial parents can attend school functions, access the child’s school and medical records, and attend extracurricular activities.
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.
Visitation orders outline the minimum amount of time a non-custodial parent can spend with the child.
Parents who are married share legal and physical custody of the children unless and until a court orders otherwise.
When the parents are not married, the mother has sole legal and physical custody unless and until a court orders otherwise. A father must prove paternity through a formal acknowledgment or a DNA paternity test to gain custody rights.
Paternity creates a legal relationship between a father and his child, giving the father rights to:
- the child has the right to be supported by both parents
- the child can benefit from knowing the medical histories of both parents
- the child can be included in the health insurance of either parent
- the child can receive the benefits that both parents have earned, such as Social Security and veterans’ benefits
- the child can inherit from both parents
- the child can have a relationship with two parents
If the mother and the father are married, the husband is the child’s legal father. As soon as your child is born, they have all these rights, benefits, and opportunities.
Generally, child support payments and visitation rights are not connected. A person paying child support is not automatically entitled to visit a child. Also, failure to pay child support will not automatically stop visitation rights.
A court may order supervised visits or no visitation as a means of protecting a child. That is often the case when abandonment, substance abuse, or domestic violence are part of the family dynamics.
Massachusetts child custody laws state that when making a visitation order for an abusive parent, the court may consider:
- Ordering an exchange of the child to occur in a protected setting or the presence of an appropriate third party
- Ordering visitation supervised by an appropriate third party, visitation center, or agency
- Requiring the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation
- Ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding 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
- Investigating or appointing a guardian ad litem or attorney for the child
- Imposing any other condition deemed necessary to provide for the child’s safety and well-being and the abused parent’s safety.
In some rare situations, it may be in the child’s best interest not to have contact with one of the parents. For example, if the parent has abused a child, a supervised visit arrangement would traumatize the child.
What is “The Best Interests of the Child” Standard?
In a custody dispute between the child’s parents, custody orders are based on what it decides is in “the best interests of the child.”
It is a child-centered standard and requires courts to focus on the child’s needs instead of the parent’s needs. Custody is awarded to the parent the court decides can best meet the child’s needs.
Specifically, Massachusetts statutes state:
The rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral, or emotional health.
Suppose the court finds a pattern of abuse or a serious incident of abuse. In that case, a rebuttable presumption assumes it is not in the child’s best interest to be placed in sole legal or physical custody, shared legal custody, or shared physical custody with the abusive parent.
Also, Massachusetts law explicitly 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.
Read More: Divorce Laws in Massachusetts
Factors a Massachusetts Judge Must use When Deciding Custody
When parents do not reach an agreement on child custody, the court must decide the issue. All major decisions related to child custody center around the best interest of the child
Massachusetts law doesn’t list specific factors for judges to consider. Instead, all courts must evaluate the child’s health, safety, and general wellbeing as a primary consideration.
Some of the common factors a family court considers may include:
- Whether either parent is unfit to have custody of the child
- Whether either parent has a history of abuse or domestic violence
- If either parent has a history of sexual abuse
- Each parent’s ability and willingness to care for the child
- Which parent has historically been the child’s primary caretaker
- Each parent’s physical, emotional, and mental health
- The child’s health needs
- Each parent’s lifestyle, including drug or alcohol addiction
- The sexual conduct of the parents, to the extent it may negatively impact the child
- Each parent’s religion, to the extent some practices may be harmful to the child
- The suitability of each parent’s residence
- The residence of the child’s siblings
- The child’s preference
What is a Parenting Plan?
Usually, the court will make a “parenting time” order when the minor children live most of the time with one of the parents. This parenting plan goes into great detail to define the rights and responsibilities of each parent.
Sometimes, parents work together to create these plans. If there are disagreements, the court will decide instead.
A court will generally adopt a plan created by parents unless it is contrary to a child’s best interest. 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.
At a minimum, 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 religion, education, and health care
- Transportation issues
- Provisions describing how parents plan to resolve any future disputes
- Provisions if one parent attempts to move with the child out of the area or to another state
If parents have established quality communication, sometimes they do not need a visitation schedule. Instead, parents will leave visitation flexible and arrange visits between themselves. In visitation agreements and court orders, this is referred to as “reasonable visitation.”
The court may accept or modify a plan submitted by one parent or both parents. A judge may reject the proposed plans and order a different parenting arrangement.
Modifying a Massachusetts Custody Order
As parents and children grow and move forward, a custody or parenting time order is often no longer appropriate or serves the child’s best interest. For this reason, the court allows either parent to file a formal motion to review or modify custody arrangements or parenting time order.
To increase the chances of a modification being approved by the courts, both parents should try to work together.
If you can’t agree, the court will consider a motion to modify custody if the requestor can prove both of the following factors exist:
- There has been a material and substantial change of circumstances of the parents or child since the last order, and
- A modification serves the child’s best interests
When something happens that puts your child’s health or safety in danger after the court issued a temporary custody order, and you need to change the order immediately, you can file a Motion to Modify Temporary Custody Order.
Suppose something happened that puts your child’s health or safety in danger after the court issued a final custody order, and you need to change the order right away. In that case, you can file a Complaint about Modification and a Motion to Modify Custody Order.
If you need to change the custody order immediately because of domestic violence, you can file a 209A Complaint for Protection from Abuse.
Read More: Massachusetts Divorce Guide
Massachusetts Child Custody FAQs
Do grandparents have any custody rights in Massachusetts?
When parents cannot take care of their child third party may step in and provide the requisite care. Sometimes, appointing a caregiver or a guardian means going to court, but there are also ways a person can become a child’s caregiver that does not involve going to court:
- Caregiver Authorization: Parents give the caregiver written permission to make educational and medical care decisions.
- Temporary Agent: Parents appoint the caregiver as a temporary agent for up to 60 days.
There are also two ways a person can become a child’s guardian that does not involve going to court:
- Parental Appointment of a Guardian: Parents appoint someone to be the guardian of their child.
- Court Appointment of a Guardian: The Court appoints a guardian for the child.
Can a custodial parent move to another part of the state or another state?
Massachusetts has laws about removal out of state with children after a divorce. Removal laws mean a parent must ask the other parent for consent to remove the child. Also, if the other parent does not consent, the parent seeking to remove the child must get permission from a judge.
You must show the move is in the child’s best interests taking into account all legally relevant factors such as:
- whether the child’s quality of life may be improved
- whether the custodial parent’s quality of life may be improved
- the possible effect of reducing or eliminating the child’s relationship with the non-custodial parent
- how moving or not moving will affect the child’s emotional, physical, or developmental needs.
If you are still married but separated and have not been to court, you and your spouse share custody of the child under Massachusetts law. That means it is lawful for either parent to remove the child from the state.
Where parents do not have a custody decision, removing a child without permission may contribute to the other parent being awarded custody.
Removing a child on your own, without the agreement of a parent with whom you share custody or a judge’s permission, might violate the other parent’s shared custody rights. A judge could see that as acting against the child’s best interests.
If you are a domestic violence victim, you may need to leave your community or the state quickly in order to be safe. If it is at all possible, you should still consult with an attorney before you go. You may be able to obtain a restraining order that includes temporary custody and permission to remove the child from Massachusetts, as essential to the child’s being safe.
If you are unsure about whether your situation requires getting consent from the other parent or whether you need to get permission from a judge, you should consult an attorney.
If you think the other parent might take your child out of the country, you can ask the Probate and Family Court for an order that forbids the other parent from leaving the United States with your child and puts your child’s name on the federal Do Not Depart list.
How much influence does a child have in deciding which parent to live with?
Generally, the older the child, the greater the weight that will be given to the child’s preference. A child younger than 10 would need to display a mature demeanor for a Massachusetts judge to factor the child’s preference into a custody decision. This is only advisory; a judge will have the final say in all custody decisions.
Part of this is because courts recognize that when parents are in conflict, a child’s preference is often unreliable and may be due to undue influence by one parent.
Officially, children can’t decide where they will live until they are at least 18 years old.
Does Massachusetts favor mothers over fathers in custody cases?
There is no preferential treatment for a mother in Massachusetts custody cases. A father has equal custody and visitation rights. Gender is a non-issue, all other factors being equal.