Massachusetts Child Custody and Child Visitation Guidelines
Massachusetts child custody laws are unique and the types of custody that the courts typically grant are common with those of most other states across the country. Legal custody refers to the important decision-making rights and responsibilities for the child. This includes but is not limited to decisions regarding education, religion, and health issues. Physical custody refers to the primary care-taking rights and responsibilities for the child including providing the child with food, clothing, and shelter. Sole custody simply means that one co-parent holds custody and joint custody means that custody is shared between both co-parents. Less common is joint physical custody, in which children spend considerable periods of time, perhaps several weeks or months of each year, alternately with each parent.
Massachusetts child custody laws and courts encourage co-parents to come to a mutual agreement outside of court to continue to raise their child together with some type of joint physical custody arrangement. The co-parents must create a detailed parenting plan to submit to the court for review and approval. If the co-parents are not able to reach an agreement on custody the Massachusetts child custody laws and courts will determine issues of custody, visitation, and support.
The Massachusetts courts do not initially assume either co-parent to be better fit to be awarded custody over the other. Only after determining the best interest of the child will the court be able to appropriately make a decision on a custody arrangement. In order to determine the best interest of the child, the Massachusetts courts will look at a number of predetermined factors involving both co-parents and the child, including:
- The child’s relationship with each parent
- Each parent’s ability to provide the child with a loving environment
- Each parent’s ability to provide for the child
- The child’s adjustment to school and community and the potential effect of a change
- Each parent’s willingness to support the child’s ability to be in contact with the other parent
- Each parent’s ability to communicate, cooperate with each other, and make decisions for the child
- The child’s developmental needs, as well as each parent’s ability to provide for those needs
- Any history of abuse.
Parental Rights in Massachusetts
If you are married and have not gotten a custody order, both you and your spouse automatically share legal custody of your child until a judge says otherwise. This means that both you and your spouse have the right to make major decisions about your child’s life
If you were never married, and there is no custody order in place, the mother has custody of the child whether paternity (legal fatherhood) has or has not been established by the father. Once paternity is established, the mother is still considered to have custody, unless and until the father files for and receives shared or sole custody in court.
In Massachusetts, Paternity can be established by signing and filing a voluntary acknowledgment (usually done at the hospital at birth) or by a judge’s order after either parent files a paternity petition in court. If paternity has been established the liabilities of the father may be enforced to furnish the reasonable expenses of pregnancy, confinement, education or necessary support.
Generally, you can file for custody or file to modify a final custody order in your child’s “home state.” Massachusetts will qualify as your child’s “home state” if: your child has lived in Massachusetts with you or the other parent, or a person acting as a parent, for 6 consecutive months immediately prior to the start of the custody proceeding.
In Massachusetts, the court will generally appoint a Guardian ad litem, who is in charge of evaluating the child’s situation and making recommendations as to the best possible arrangement for the child.
Contested Custody Cases
If parents contest child custody in Massachusetts, and one parent seeks shared legal or physical custody, that parent must submit a parenting plan to the family court. A court may either order shared custody or reject the child custody plan and award sole legal and physical custody award to either parent.
Massachusetts laws also require separated parents to attend parenting education classes before the courts are allowed to hear their child custody case. In fact, the courts will not even set a pretrial conference in divorce cases involving children unless the co-parents have attended the appropriate education classes.
Modification of Child Custody
A Massachusetts court will modify child custody if:
- The parties agree to a modification:
- The court finds that the child’s living environment poses a danger to the child’s physical, mental, or emotional health and the child will benefit from a change in circumstances:
- The court finds that one parent repeatedly interferes with the residential duties and responsibilities of the other parent; or
- One parent believes the current custody arrangement is not working.
Registration and Enforcement of Out of State Court Orders
In Massachusetts an out of state custody order may be filed by completing a Request to Register Foreign Order and attaching a certified copy of the original order. Any custody order, foreign or otherwise, may be enforced in Massachusetts upon filing it with the local court venue.
Note: The foregoing information is provided as general family law guidelines in Massachusetts and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.
Submitted by Linda O’Marie, Paralegal
or call 1(800) 787-4981