Child Custody FAQ;s

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Below are the most common questions relating to child custody.

 

What is legal custody?

Legal custody relates to the ability to make important decisions on behalf of a child, or other incompetent person, who is to young or unable to make their own decisions in matters such as education, medical care, emotional, moral and religious development.  Joint legal custody is commonly granted to both parents, but may not be granted if the parents have basic fundamental differences in the major areas of child rearing, or cannot communicate to make decisions together.

 

“A court may award joint custody, whether legal or physical, only if the parties have made an agreement approved by the court to share custody, or if the court finds that the parties have successfully exercised joint responsibility for the child … and have the ability to communicate and plan with each other.”  Smith v. McDonald (2010) SJC-10670.  In the absence of these factors, the court will grant legal custody based upon its determination of what is in the best interest of the children, given all the facts, needs of the children, and ability and willingness of the parents to make legal decisions.

 

What is physical custody?

Physical custody refers to the daily caretaking of the children after the separation or divorce of the parents.  In other words, it is the primary residence of the child with the one parent who exercises routine day-to-day decision-making and care on behalf of the children.  Generally, physical custody is granted to the parent who is most active in the daily care of the children and is determined upon many factors such as the age, needs, and activities of the children, as well as the availability and ability of the parents to care for the children.  In some circumstances, the court may grant joint physical custody of the children, when it is in their best interest.  In that case, the children would slit time equally with both parents.  This arrangement may not be practical for many families, but may be the best arrangement for others.

 

How do the courts determine child custody?

Across the United States, courts have adopted the “best interest of the child” as the criteria for determining custody.  In Massachusetts, courts make custody determinations to either parent, or third party, based upon what is most beneficial to the children given all the facts and circumstances.  Essentially, the court will evaluate all the facts such as the needs of the children, the ability of the each parent to care for the children, and the overall circumstances in making its determination of what is best for the children.  However, courts are inclined to protect and foster a relationship, to whatever degree is reasonable, between the children and both parents in most all circumstances and will make orders that protect and encourage those relationships while protecting the best interest of the children.

 

When can a non-parent obtain custody?

A third party, non-parent (i.e., grandparent, aunt, uncle, friend, etc.) can petition the court for custody of a child in a divorce by seeking a modification of the divorce judgment to give the non-parent custody.  However, the threshold is high to obtain custody.  A fit parent cannot be deprived of the custody of his or her children against the claims of a non-parent without a showing of a “powerful countervailing interest.”  In these circumstances, the scales tip strongly in favor of the parent, over a non-parent, as the non-parent must prove that the parent is unfit (i.e. unable to provide basic care and nurturing for the child) AND that it is in the child’s best interest to have custody granted to the non-parent.  It is not enough for a family member to show they could raise the child better, or give the child more opportunities, attention, care, etc.  Courts will assume that a parent is the best person to care for their children until it is presented with evidence to the contrary.

 

Is the Mother favored for custody?

The child custody laws in Massachusetts are gender neutral, meaning the court will not, as a matter of course, favor an order for custody with the Mother.  Instead, the courts will look at the facts, history of caretaking, and each parent’s ability to care for the children.  In most families, the mother takes on more child rearing responsibilities, especially when the children are young, which courts take into consideration to ensure the “status quo” for the children.  However, if that is not the case, and the Father is primarily responsible for caretaking, or the mother is unable or unwilling to provide daily care, courts will consider those factors when weighing the best interest of the children and awarding custody.

 

Does a history of domestic violence effect custody?

Evidence of a history of domestic violence in the home, even if not directed at the children, can effect the ability of the perpetrator to obtain custody.  In fact, where there is “credible evidence of physical abuse to a household member by a person seeking custody of or visitation with a child,” the court is required to make “detailed and precise findings of fact which demonstrate that the effects of the domestic violence on the child have been evaluated and, in the event physical or legal custody is awarded to the perpetrator of the abuse, how such an aware advances the best interests of the child.” R.H. v. B.F., 39 Mass.App.Ct. 29, 41 (1995).

 

When violence occurred in the family home, courts must take additional precautions and investigations to ensure that the children are protected from the alleged abuser.   Courts must take every precaution to protect the children against future abuse against them or in their presence, while preserving the relationship with the parents.  This may include limited visitation, supervised visitation, counseling or other steps to protect the children.

 

What factors does the court consider in child custody disputes?

 

When two parents cannot agree on their own how or whether custody should be shared between the parents, the court must make the determination based upon what it finds is in the best interest of the child.  In doing so, the court relies on the following factors:

 

  • Parental Fitness:  The court will weigh evidence as to each parent’s fitness to care for the children.  The court will consider essentially the same factors as in other matters of parental rights in determining the best interest of the children and whether either or both parents are fit to care for the child.  A finding that a parent is unfit to care for the child will clearly disqualify the unfit parent under the best interest of the child rule.
  • Abuse and Domestic Violence: Whether there has been a history of abuse and domestic violence by one or both parents and whether the abuse was against the other parent or the child, weighs heavily in determining custody.
  • Sexual Abuse:  When a history of sexual abuse of a child by a parent is established the unfitness of the abuser is also established and should be grounds for prohibiting visitation or restricting it to a controlled situation.
  • Willingness and ability of each parent to care for the child:  The court will begin its custody analysis by presuming that both parents are equally able to care for the child.  However, the court will weigh evidence of one parent’s lack of interest in the child.  Alternatively, demonstrated history of one parent carrying out parenting tasks in a diligent and responsible manner is a significant factor in that parent’s favor.
  • History as Primary Care Parent:  The fact that one parent has successfully undertaken the primary care responsibilities for the child in the past will favor an order that the parent continue with custody.
  • Health of Parents:  The comparative mental and physical health of the parents will be examined by the court.  If it is determined that one parent lacks the mental, emotional or physical ability to care for the child, the court will fashion its order accordingly.  Although a disability will not preclude custody to that parent, the court can make its ruling to ensure the child is properly cared for in light of the health problems of one or both parents.
  • Health needs of the child:  If the child has health needs, the court will consider those needs and the care that was provided for the child in the past.
  • Sexual Conduct of the Parents:  A parent’s sexual preference of homosexual or heterosexual is not considered in custody determinations.
  • Religion:  The religious beliefs of the parent, even if unorthodox, will not prejudice the parent’s position in the custody dispute, unless the religion is found harmful for the child.
  • Suitability of Residence of Parent:  While the court can take into consideration the relative suitability of living situation of the parents and their ability to provide for the child, it cannot make a custody determination based upon the income of the parents.  The fact that one parent has a luxurious house or higher income does not, by itself, provide a basis for awarding that parent custody.
  • Siblings:  The court should consider the residence of the child’s siblings in making its custody determination so as to allow the child to live with his or her siblings and be raised in a normal family relationship.  The court must also consider furthering a relationship between siblings as well as with the parents.
  • Custodial Preferences of the Child:  The child’s preferences will be considered by the court, but the child cannot make the choice.  As the child nears the age of majority, the court will consider their preferences in making a custody determination to a greater degree.

 

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