Massachusetts Child Custody Laws

Massachusetts family law attorneys provide answers to frequently asked questions with regards to Massachusetts child custody and Massachusetts custody laws.

Who will get custody of our child(ren)?

The courts determine physical custody based on several factors, including, most importantly, who has been the child(ren)’s primary caregiver during the course of the marriage.

What is joint custody? What is sole custody?

Joint temporary legal custody is the norm in Massachusetts. This is when the parents share decision-making authority regarding the minor child.

Should a party seek joint legal custody on a final basis that party must prove to the court joint legal custody is in the child’s best interest.

Typically, there are four main considerations with regard to legal custody: religious upbringing of the child(ren); medical care of the child(ren); extracurricular activities; and education.

Joint physical custody is not the norm in Massachusetts. Joint physical custody is typically an arrangement where the parents share equal or nearly equal parenting time.

Joint physical is a parenting arrangement that is typically only accomplished by agreement and by demonstrating to the court that joint physical custody is in the child’s best interest. Judges will assign one parent as the primary custodial parent and the other as secondary.

Sole custody is very unusual and it means (whether in terms of legal or physical custody) that all of the custodial rights are assigned to one parent. Generally, a party can prove to the court that final joint legal custody is in the child’s best interest.

If both parents share custody does anyone pay child support?

In many cases when the parties are able to agree on equal parenting time, one parent will still continue to pay support. Because child support is calculated based on income, the parent with the higher income will still likely pay some support.

The only time when there may be no support paid is in circumstances when the parties share equal parenting time and have nearly equal incomes.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support and visitation are two separate rights/obligations that are not connected to one another.

When can my child decide which parent to live with?

In Massachusetts, the expression of a preference by a child in a custody dispute is treated with caution. The older the child, the greater the weight accorded to the child’s expression of preference.

In the conflict between parents, a child’s statement of preference is often unreliable and may be the product of undue influence of one parent or immature values on the part of the child.

Do grandparents have custody and visitation rights?

Massachusetts law permits a grandparent to seek visitation with a child under certain circumstances. The grandparents will have to prove that failure to allow visitation would cause the child significant harm.

What is a parenting plan, and do I need one?

A parenting plan outlines the “rules” between the parties regarding custody. You will need to work out a parenting plan or schedule as part of resolving a divorce case.  Otherwise, the court will enter an order including these “rules.”

What can I expect from temporary orders?

The court will enter an order regarding how payment of marital bills will be handled on a temporary basis, temporary child support and alimony (if necessary), and provide a temporary custodial plan between the parties.

When will child custody be decided?

Custody can be agreed upon by the parties and, if approved by the court, made a part of the divorce judgment. If the parties cannot agree, the court will resolve the issue at the final hearing.

When can I modify custody?

You must demonstrate a material and substantial change in circumstances concerning the children in order to modify custody.

What is an ex parte order?

An “ex parte” order is an order entered by a court after receiving evidence from only one party.

How is custody decided?

The court will consider the evidence presented by the parties and make a decision based on what the court feels is in the child’s best interest.

How can I increase my chances at getting a larger custody agreement?

Do not move from the marital residence (or the home where the child is living) until there is an agreement. Many men decide that it is better for the child to be in an environment where the parties are separated than to live in a contentious environment with both parents.

Though this is noble in concept, if you move out before a custody order is in place, your rights to see your child are virtually at your wife’s discretion. Do not allow her to have that power over your relationship with the children.

From a really basic perspective, the way to increase your chances of having more custodial time is to be more involved with your child. Be there for extracurricular activities, participate in bedtime and bath time, take the children to school, etc. Show the court that the needs of the child dictate your available presence.

What is visitation?

Visitation is the common term used for the non-custodial parent’s parenting time. Visitation may also be known as secondary physical custody.

Can a judge order supervised visitation or no visitation?

Yes, a judge has discretion to order supervised visitation.

It is not very common, but in cases where it is shown that it is likely that one parent is a risk for harm to the minor child, a judge can order supervised visitation. This may mean supervision by a family member, a supervision agency, or law enforcement.

As to no visitation, it is highly unlikely that a judge would order no visitation unless parental rights have been terminated.

What should I know before a custody trial?

Before a trial of any type, you should know that the most important thing is preparedness. Be able to answer every allegation that may be made.

Be able to show that you have been an active, involved parent. Be able to show any downsides that may exist for the other side.

Be prepared to stand up and say to the judge, “I can and will take care of my child and custody of this child should be granted to me because that is what is in my child’s best interests.”

Be able to support anything you say.

Can I collect my own evidence to use if my custody case goes to court?

Yes, but your Massachusetts family law attorney will be able to provide you guidance regarding what “evidence” is actually admissible in court.

Do I need to use a Guardian ad Litem/Custody Evaluator?

This decision is made on a case-by-case basis based on the issues in the case.

Will my child need to appear in court?

It is rare for a child to have to appear in court. Judges do not like having children brought into the courtroom.

What is the Parental Kidnapping Prevention Act?

This act applies in all interstate custody actions, even when kidnapping has not been asserted. A great deal of this particular act addresses jurisdiction issues for cases when the parents have filed custody actions in two separate states. It violates federal law for two states to concurrently assume jurisdiction over the same custody matter.

According to the act, the state that will have jurisdiction is the one that has subject matter jurisdiction over the matter under state law and is the resident state of the child or either parent.

What if my wife tries to move the kids out state?

A child of divorced parents who is a native of Massachusetts or has resided in Massachusetts for five years shall not, if of a suitable age to signify his or her consent, be removed from Massachusetts.

Both parents must consent to an out-of-state move or receive the approval of the court as part of a modification action.

Can a parent change the child’s last name without the other parent’s permission?

The court will use the “best interests of the child” standard in determining whether a name change should be allowed if requested by one parent and opposed by the parent.

If I have custody, will I receive child support?

Generally, all primary physical custodians will receive support in some form under the divorce judgment.