How Massachusetts approaches child custody in divorce

All custody and visitation matters must be in the child’s best interest.

Like other states, Massachusetts requires that child custody arrangements be in the child's best interest. More unique to the commonwealth:

  • Massachusetts courts normally require divorcing parents to complete an approved Parent Education Program during the divorce process.
  • If custody terms cannot be agreed upon by the parties and these issues end up before the judge for decision, if either party wants shared legal or physical custody, the parties must file with the court a "shared custody implementation plan" either individually or jointly.
  • A guide for shared parenting that was a joint collaboration between the "legal and mental health communities" provides detailed information helpful to parents, lawyers, judges and other professionals in designing parenting plans that meet the developmental needs of children.

Custody and parenting time basics

As a preliminary matter, there are two kinds of custody that must be decided:

  • Legal custody, meaning who has the "right and responsibility" to make "major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." Legal custody may be awarded to only one parent or shared in which they must make mutual decisions.
  • Physical custody, meaning with whom the child lives. Physical custody may also be sole with one of the parents or shared in which the child will live for periods of time with each of them. When sole physical custody is granted, the other parent is normally given "reasonable visitation" unless against the child's best interest.

In many divorces, the parties can negotiate a separation agreement of all of the legal issues in the divorce, including child custody and parenting time, traditionally called visitation. Creating your own custodial and visitation arrangements can allow for creative problem solving, family arrangements and scheduling tailored to the children's needs and each party's ability to meet those needs.

Massachusetts courts may approve agreed-to custody arrangements if in the best interests of the children involved. If the parties do not settle, contested issues will be decided by the judge in light of the best interests of the children after considering the evidence at trial.

This is only an introduction to a detailed area of Massachusetts law. It becomes particularly complex when there is a history of abuse, violence or substance abuse on the part of a parent.

Anyone with questions about custody or visitation in Massachusetts should seek the advice of an experienced attorney.