Child Custody in Massachusettsby Ponichtera & DeNardis, P.C. on 11/09/11
Child custody is broken down into two general categories: legal custody and physical custody. Legal custody can be defined as the right to make the legal decisions for a child, such as educational, medical, and religious. One can consider legal custody as the authority to sign consent for a child. In Massachusetts there is a presumption in favor of shared legal custody for children, by their formerly married parents after a divorce. The theory behind this presumption is that each of these categories can involve difficult decisions, and the old adage of "two heads are better than one" often applies. If the "two heads" are parents that love the child, they are likely to come up with a better decision together, than one parent may come up with alone. This of course is not always true and parents can disagree. In these circumstances the Court is available to determine the final decision. Some examples of difficult legal custody decisions, are the age at which a child may commence kindergarten, what school shall a child attend, should a child engage in a particular sport, will a child wear braces, will a child undergo a particular voluntary surgery, will a child practice a particular religion, and so on. In all of these legal custody situations, reasonable people may disagree on the ultimate decision and for legitimate reasons. Shared legal custody most likely, will not be ordered, if there has been abuse between the parents.
Physical custody is different. Physical custody may be defined as where the child resides, and with whom. In some cases, parents may have shared physical custody, where the child basically has two residences between the two parents, and lives in both households an approximately equal amount of time. It is my experience that shared custody arrangements for small children are rare. To be successful the parents ideally will live in close proximity to each other, and are able to communicate and cooperate well with each other about the child. These prerequisites will eliminate many divorcing couples. With older teens this arrangement can often work well. Particularly if the child is accustomed to being co-parented by both of his/her parents, and again the parents live close to each other. This arrangement allows a child to move somewhat freely between the two parents' households. For example, taking a bus from one parent's household and then returning after school to another parent's home.
It is important to note that the child custody statute in Massachusetts is gender neutral, which means that both parents have an equal right to custody of their children. In a custody contest, the Court will consider the child's best interests, and which parent is the most fit. In considering the child's best interests, the Court will consider who had primary responsibility of raising the child during the marriage.
Custody questions, when the parents cannot agree as to a child's residence, can be of the most painful type of proceeding in the Massachusetts Family Court, for both the affected parents and children. It is important to note that a child needs both of her parents. The mere fact that one parent is deemed the custodial parent and the other is the visiting parent, does not mean that either parent is more important than the other. Each parent plays a critical role in a child's growth and development into a healthy adult. Clearly if the parents can agree to what is best for their children after a divorce this is a major accomplishment and is to be commended. When parents cannot agree on custody there are often very good reasons for the dispute, and the Court will make the final decision, after hearing all of the evidence.
If you have questions about child custody issues please contact us for a free consultation to learn your rights and how the law in Massachusetts will affect you.