Stability for the child, a focus in Massachusetts child custody law

Divorce, whether friendly or not, is a difficult time for the whole family. The family must take time to adjust to the inevitable change ahead of it. Child custody decisions are difficult to make and to explain to the children. Massachusetts families have some flexibility regarding child custody and will hopefully find a custody arrangement that works best for their individual family.

What are the different types of child custody in Massachusetts?

Under Massachusetts law there is legal custody and physical custody. Legal custody refers to the decision-making responsibility for the child including moral, religious and educational decisions. Physical custody refers to where the child actually lives. Both of these types of custody can either be sole or shared; sole custody means that only one parent has custody and shared custody means that both parents have custody.

How do the courts make custody decisions?

The main standard that courts use to make child custody decisions is called the "best interest of the child" standard. As a result, the laws regarding custody are very child-focused and force the courts and the parents to look at what is best for the child and not what is best for the parents. If parents cannot come to an agreed-upon child custody arrangement themselves, the court will create one for them.

Massachusetts law does not set out exactly what factors the court should look at when determining the best interest of the child, but according to Massachusetts Legal Services the following provides some common factors that judges consider:

  • History of domestic violence
  • Which parent was the primary caretaker of the child
  • Serious mental health or addiction problems
  • The parents' capacity to communicate with one another
  • The housing conditions and child's adjustment to the neighborhood
  • The parent's relationship with the child

There is a greater likelihood that a judge will award sole physical or legal custody if one parent has a serious history of domestic violence, mental health or addiction issues or has never had any responsibility for the child.

How is visitation awarded?

If one parent has sole physical custody, the other parent will likely have visitation with the child. Sometimes a schedule is set for visitation and may include overnight visits. If the parents can communicate well with each other the parents can create a schedule themselves. This allows for more flexibility. Visitation may be supervised if it is unsafe for the child to be alone with the parent.

When going to court for a child custody determination it is helpful to have an advocate on your side. People considering or going through divorce should contact a family law attorney to help them protect their rights throughout the process.