Family Law

How do Judges Decide Child Custody in Massachusetts

By Melissa Heinig, Attorney
Divorcing parents often find it challenging to agree on custody matters. Learn how judges decide custody and parenting time in Massachusetts.

Divorcing parents can make co-parenting less stressful by communicating and working together on custody issues. If parents can’t agree, a judge will have to decide.

Overview of Custody in Massachusetts

Legal Custody

Legal custody refers to a parent’s right to make major decisions relating to the child’s health, education, and general welfare. Common issues that arise with legal custody include:

  • the child’s education
  • major medical procedures, and
  • religious upbringing.
The court may order sole (one parent) or joint legal custody (both parents). If the court awards sole legal custody, that parent will have the exclusive right to make these choices on their own. If the court awards joint legal custody, both parents share decision-making authority. If parents can’t agree, a court will have to decide.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, a court can award sole or joint physical custody.

Courts often award joint or shared physical custody to assure the child will have frequent and continuing contact with both parents, but it's important to understand that this doesn’t necessarily mean that the child will spend the same amount of time with each parent. Sole physical custody means that the court recognizes one parent as the “custodial parent,” and the child will spend the greatest amount of time in that person’s home, with set visitation between the child and the other parent.

Will the Court Award Joint Custody?

At the beginning of divorce or custody proceedings, courts will typically award parents joint physical and legal custody, at least temporarily, unless one parent has been absent or abusive, has a history of drug or alcohol abuse, or if parents can’t cooperate. Parents will continue the temporary joint custody arrangement until the court makes its final custody decision.

If parents agree that joint custody will be the best long-term arrangement, they must present a shared custody implementation plan to the court. Parents can write this plan together, or each parent can submit a plan separately. The implementation plan must include a visitation schedule for each parent and the child.

A successful calendar will include a specific schedule for visitation—including holidays, school vacations, and birthdays. It should also contain information on pick-up and drop-off locations, who will be responsible for transporting the children during visitation, and who will pay for transportation costs. Parenting plans should also have a provision that allows each parent to have access to a child’s official records, including medical and educational information. Parents need to include who will be responsible for decisions regarding the child’s education, health, and dental care, and the procedures the parent’s will follow to resolve any disputes in the future.

The court will review the mutual plan or each individual plan. If a judge believes that shared custody is in the child’s best interest, he/she will approve the plan, or a judge can deny both plans and issue an award for sole custody.

Parenting Time

If the court awards one parent sole physical custody, the next step is to determine a parenting time (visitation) schedule for the non-custodial parent and the child. Courts will often encourage parents to draft their own visitation schedule, which usually works best for everyone, especially the children. This schedule will include a calendar for weekly visits, vacations, and holidays.

In some cases, overnight or unsupervised time with a parent may not in the child’s best interest. The court will not usually place any restrictions on parenting time unless it finds that a parent’s exercise of parenting time would endanger the child’s physical health, or significantly impair the child’s emotional development. If a parent has a history of being absent, neglectful, or abusive, the court may order supervised visitation, which would require that parent to spend time with the child at a county or state facility with a professional supervisor in attendance. Visitation facilities may not be free so the non-custodial parent will be responsible for any required payment.

How Do Courts in Massachusetts Determine Custody?

If parents can’t reach their own custody agreement, a court will have to decide based on the best interests of the child. There are no specific factors, so a judge has broad discretion in deciding custody. The most important aspect of any custody case is the child’s happiness and welfare. A judge will consider whether the present or past living conditions will impact the child’s physical, mental, moral, or emotional health. Additionally, a judge may consider the child’s age, the parent’s history of abuse, the child’s relationship with each parent, and how the child is doing in school.

There is no presumption that one parent is better suited to be the child’s primary caretaker, so a judge will decide custody based on the evidence presented. Once the court creates a parenting plan and issues its order, both parents must follow it precisely. If one parent wishes to change custody, they will need to ask the court for a hearing.

Modifying Custody and Visitation

If one or both parents believe that they need to change custody arrangements, they can agree to a new plan. If they can’t agree, they can ask the court to modify the arrangement.

The court will consider modification if a parent can prove that there has been a substantial change of circumstances in the parents’ or child’s life since the last order. Some examples of significant changes may include a relocation by either parent, or unexpected medical or educational needs of the child.

If the parent proves there is a change in circumstances, the court will consider a modification if the current arrangement is not in the child’s best interests. Parents should remember that until the court issues a new order, the previous custody and visitation rules will remain in effect.

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