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Massachusetts Child Custody
Child Custody in Massachusetts

According to the General Laws of Massachusetts Chapter 208-31, "[c]ustody may be awarded to either parent, and there shall be no presumption either in favor of or against shared legal or physical custody." If parents agree on custody the courts will generally go along with it unless it is not in the best interest of the child.

Under Massachusetts' family law, two sets of custody exist - physical custody and legal custody. Physical custody dictates where the child lives. The parent with legal custody has the right to make primary decisions with regard to the child's health and welfare. In determining which parent or parents have physical or legal custody, Massachusetts' courts adhere to the best interest of the child standard.

Massachusetts' courts try to minimize the emotional impact of divorce on the child. Family courts encourage divorcing parents to cooperate in writing a parenting plan. If parents are unable to agree on the resolution, the court intervenes to resolve issues on custody, visitation rights, and support.

While the courts' primary guideline in making their custody arrangement is the best interests of the child, the courts' priority is determining which parent is capable of providing what is best for the child and the practicality of joint custody. Custody may be awarded to either parent through fair proceedings and without presumption either in favor of or against physical or joint custody.

As mandated by child custody laws in Massachusetts, the courts are prohibited to make a presumption of favoring one form of custody over another. The court considers a number of factors including:

  • the child's emotional, physical, mental, or moral health;
  • the present living conditions of the child;
  • whether or not the parents have attended parent education classes;
  • any history of domestic abuse, child abuse, or negligence;
  • Whether or not the parents have agreed to a custody arrangement.
  • the parent-child relationship; and
  • the parents' mental and physical health as well as moral character.

If parents have agreed to a parenting arrangement, the court shall take this into consideration along with the above-mentioned factors.

Parents who can agree to a custodial arrangement can submit it to the court. The court will approve it unless specific findings are made that it is not in the child's best interest. When the parents cannot agree and end up litigating, the judge determines the custodial arrangement and it becomes part of the custody order.

Joint Custody Preference

Unlike most states, Massachusetts does not presume that joint physical or legal custody is in the best interest of the child. In Massachusetts, when one parent has legal custody, he or she has sole legal custody. If a parent has physical custody, he or she has sole physical custody. When both parents have legal custody, they have joint legal custody. If both parents share physical custody, they have joint physical custody.

Third Party Custody

In some cases, a third party, or someone other than a child's biological parents, will try to gain custody of a child. Massachusetts allows any person who is interested and willing to provide care and support for the child to apply for custody even if they are not the biological parent. In doing so, they must have substantial reason to request to be the child's guardian.

Parental Conduct

In addition to finding a parent unfit because of substance abuse, or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child. In cases of spousal or child abuse, Massachusetts' courts presume the abusive parent should not have sole or joint physical or legal custody.

Visitation

The Massachusetts courts have full discretion when determining visitation between children and parents. The courts can establish visitation between one or more parent, even if both parents agreed upon a no-visitation policy. When one parent has sole physical custody, he or she is the custodial parent and the non-custodial parent has a right to reasonable visitation with the child.

Courts prefer that parents work out a visitation schedule between them, taking into consideration their schedules as well as the child's schedule. However, when parents cannot cooperate, courts may impose a visitation schedule as part of the custody order.

Grandparents and other relatives may apply for visitation rights. The court grants visitation rights to individuals who support the child's growth and development.

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