If I Haven’t Been to Court, Who has Custody of the Massachusetts Children?

by | Dec 16, 2021 | Child Custody |

When Massachusetts parents are married to each other, both parents share legal and physical custody of the children unless and until a court orders otherwise. When the parents are not married to each other, the mother has sole legal and physical custody unless and until a court orders otherwise. This is so even if the father has formally acknowledged paternity.

What standards or rules do judges use to make custody decisions?

In a custody dispute between the child’s parents, the court awards custody based on what it decides is “in the best interests of the child.” While the best interests of the child standard sounds vague and general, it is nonetheless a child-centered standard, as it requires courts to focus on the child’s needs, and not the parent’s needs. The law requires courts to make their custody decisions by awarding custody to the parent whom it decides can best meet the child’s needs.

The law says that in making an order or judgment concerning the custody of children, “the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral, or emotional health.”

If married parents file for divorce or custody, they automatically have temporary shared legal custody of their children, but the court can award temporary sole legal custody to one of the parents if it makes written findings that temporary shared legal custody is not in the child’s best interests.

If the court is going to make a decision about whether temporary shared legal custody, it must consider “all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parents have a history of being able and willing to cooperate in matters concerning the child.”

Also, if the court intends to award temporary or permanent shared legal custody or temporary or permanent shared physical custody, and there has been or is an abuse prevention restraining order, the court must make written findings to support such a shared custody order.

The law says that in issuing any custody order courts must consider evidence of past or present abuse toward a parent or child as a factor against the best interests of the child.

If the court finds or decides that there has been a pattern of abuse or a serious incident of abuse, then there is a rebuttable presumption that it is not in the best interest of the child to be placed in the sole legal or physical custody, shared legal custody, or shared physical custody with the abusive parent.

This presumption means that if the court decides that a pattern or serious incident of abuse has occurred, then the court must assume that it not in the best interests of the child to be placed in the custody of the abusive parent. Rebuttable means that the abusive parent has the right to rebut (that is, challenge) the presumption.

For children born to unmarried parents, the mother of the child automatically has custody unless a Probate & Family Court orders otherwise. The Probate & Family Court can award shared legal or shared physical custody only if the parents agree or if the court finds that the parents have successfully exercised joint responsibility for the child prior to the beginning of the case and have the ability to plan and communicate with each other concerning the child’s best interests.

Should you be in the midst of a divorce or paternity case, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.

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