Child Custody

Introduction

In Massachusetts, several types of custody arrangements exist pertaining to children in family law actions. There is sole legal custody which is defined as one parent making all the major decisions pertaining to the children. Major decisions include matters involving education and significant medical treatment. There is also sole physical custody which is different from legal custody. Sole physical custody means that the children reside with one parent who makes the day to day decisions pertaining to the children. The court also may provide the other parent with parenting time unless it is not in the best interests of the children. Parents can also share legal custody and make joint major decisions regarding the children. Lastly, the parents can share physical custody. In this arrangement, both parents are mutually responsible for the regular care of the children and share time equally. Shared physical custody requires that both parents respect each other’s ability to parent and are able to co-parent together in a cooperative way.

When parents are not married, the mother has sole legal and physical custody until the court orders otherwise. If the parents agree and they have been able to co-parent successfully prior to the action being filed, the court can award shared legal or shared physical custody. If the parents are married and an action is pending for divorce or custody, the parents automatically have temporary shared legal custody. If there is an issue of abuse or neglect involving one parent, the court may grant one parent sole legal custody.

Parenting Time

If one parent has physical custody, the other parent can seek an order for parenting time with the children unless it is not in the best interests of the children. In some circumstances, parenting time with the children may be required to be under the supervision of a third person. If the child is in danger while with the other parent, an agreed upon supervisor or a supervised visitation center can be utilized.

Once a parenting schedule is established, the law does not provide guidance as to which parent is to provide transportation for the visits. If the parties cannot agree on drop off and pick up of the children, the court will need to enter an order.

Shared Physical Custody

Shared legal custody in Massachusetts means “a continued mutual responsibility and involvement by both parents in decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.” Massachusetts General Laws Chapter 208, Section 31.

Shared physical custody does not fall under G.L. c. 208, Section 31. There is no presumption that joint physical custody is in the best interests of the children. The matter of shared physical custody is for the court to decide. At a trial on shared custody, legal or physical, an implementation plan must be filed by the parties setting forth details of the shared custody arrangement. The plan should include matters regarding the children’s education, health care, how disputes will be resolved, and a parenting plan.

Access to Records

If an order is entered granting sole legal and physical custody to one parent, the other parent has access to the academic, medical or other health records of the children. However, some circumstances may warrant that the non-custodial parent should not have access to these records. These circumstances may include situations involving a restraining order or safety of the children or the other parent.

Modifications of Custody

If a parent seeks to modify a custody order, that parent must demonstrate a substantial change in circumstances which supports a change in custody. Examples of a change in circumstances include one parent moving out of state, a parent is unfit to care for the children or has allowed a dangerous individual into the household, or a parent has overcome problems that prevented the parent from initially having custody.

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