Lynch & Owens are the South Shore’s premier divorce lawyers and family law attorneys dedicated to providing Massachusetts residents with the best representation in child custody matters. Our child custody lawyers concentrate on the following services:
- Developing and conceptualizing comprehensive Parenting Plans.
- Litigation of child custody matters including legal and physical custody, primary custody versus shared physical custody, abuse and neglect, parental alienation, parental fitness and substance abuse, and removal cases.
- Modification of existing custody orders, judgments and Parenting Plans.
- Contempt representation in actions to enforce custody orders and judgments.
Under the Massachusetts divorce statute, shared legal custody is defined as the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” Further, the divorce statute provides that in entering a temporary order in a divorce case, married parents shall have shared legal custody of a child unless the judge finds that shared legal custody is not in the best interests of the children. In contrast, the Massachusetts statute affecting children of unmarried parents provides that a court shall only enter an order of shared legal custody if “the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.”
Massachusetts law is ambiguous regarding what specific rights are embodied in “legal custody”. While the definition of “legal custody” purports to guarantee the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare”, it is unclear what this really means in practice. Although many judges seem to associate legal custody with the right to access a child’s medical and educational records, the statutory definition of legal custody, as well as other statutes, suggests that an order of sole legal custody to one parent shall not prevent the other parent “shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child” unless there is a specific threat to the child’s best interests.
In the context of a child’s religious upbringing, legal custody is often overshadowed by first amendment issues arising out of each parent’s freedom to practice religion. In the medical context, legal custody is easily confused with issues relating to a minor’s capacity to consent to medical treatment, and confidentiality issues, such as the confidentiality of a child’s communications with his or her therapist. Meanwhile, educational issues are routinely dictated by physical custody, where the choice of a child’s public schooling is typically driven by the location of the primary custodian’s residence.
The Massachusetts appellate court cases focusing on legal custody have generally focused on defining when shared legal custody is inappropriate; namely, when parents demonstrate an inability to communicate regarding child-related issues. The cases tell us virtually nothing about what specific rights are embodied in legal custody. The closest the appellate courts have come is probably O’Connell v. Greenwood, in which the Appeals Court held:
As the father asserts for the first time here, there may be instances where one parent’s actions do not violate specific components of an order for shared legal or physical custody and yet, in the aggregate, so fully and completely seek to exclude the other parent from the child’s life that they violate the very premise on which the order is based. We do not resolve the issue because it was not raised in the trial court and it was not the theory on which the case was pleaded or tried.
Nevertheless, we make two observations. First, a court order for parents to share custody with one another provides both of them with clear notice that they have “equal rights and responsibilities regarding major decisions” in the child’s life. A parent whose actions flout this clear and unequivocal right is not immune from a court’s equitable powers simply because each particular act is not among those listed in the custody order. Where one joint custodian has clearly undertaken a campaign to exclude the other from making major decisions in the child’s life, a contempt judgment may conceivably be warranted.
The Massachusetts divorce statute defines physical custody as follows:
“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
The Massachusetts Child Support Guidelines offer additional insight into “sole” or “primary” physical custody entails, where they provide “[t]hese Guidelines based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.”
Unlike some states, there is no presumption in favor of shared physical custody in Massachusetts. Indeed, for unmarried parents, the Massachusetts statute provides that a court shall only enter an order of shared physical custody if “the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.”
Probate and Family Court judges have broad discretion to fashion physical custody and parenting time orders on a case by case basis. Generally, the single biggest consideration in making orders relative parenting time is the roles each parent played in the child’s life prior to their separation. The parent who was the child’s primary caregiver prior to the commencement of the legal action is generally favored by the judge once the case commences, however, it is not unusual for judges to modify the parenting schedule in response to events in the parties’ and/or children’s lives.
If you spend a day watching self-represented individuals argue custody and visitation issues in Probate and Family Court, a certain pattern emerges: one parent accuses the other of misbehaving around the children, only to have the accused parent deny the allegation and accuse the first parent of an equally serious misdeed. A judge’s day is full of such ambiguous “he-said/she-said” scenarios. In a typical custody and visitation dispute that does not involve allegations of physical or sexual abuse, the attorney must break out of the “he-said/she-said” construct by developing and delivering clear, persuasive evidence of a parent’s conduct to a judge. A skilled family law attorney understands the tools and techniques available for developing evidence, the specific legal standards that dictate custody cases, and the idiosyncratic “unspoken rules” that make a particular argument more or less likely to succeed when presented to a judge.
Meanwhile, in custody cases involving allegations of physical or sexual abuse against a parent, a competent attorney is essential to navigate the complex intersection between criminal proceedings, Department of Children and Families investigations, and the Probate and Family Court. Unlike financial issues, which can be preserved on paper and often revisited at a later date, issues relating to custody and visitation can be extremely time-sensitive. Knowing how and when to address immediate child-related issues and events is crucial. If a serious incident has occurred involving your child and the other parent, you may not have much time. Consult an attorney immediately.
Our blogging attorneys have written extensively about child custody in Massachusetts on the Lynch & Owens Blog. We have reviewed specific areas of custody law, such as grandparent visitation in Massachusetts, and the law surrounding the relocation and removal of children from Massachusetts to other states, including the impact of recent removal cases in Massachusetts. Our blogs include Attorney Nicole K. Levy’s ground-breaking blog series, Four Common but Incorrect Assumptions about Legal Custody in Massachusetts.
Our blogs cover controversial issues involving child custody, such as the poor treatment of child sex abuse victims in Massachusetts probate and family courts, and whether Massachusetts granted custody rights to convicted rapists.
Our blogs have also answered specific questions, such as whether a 16-year old child can decide which parent he or she wants to live with, when a step-parent may be awarded custody of a child following a biological parent’s death, and whether a court will prevent contact between a child and a former babysitter following an adulterous affair between the babysitter and children’s father.
Our blogs are not limited to married parents either; we have blogged on the process for establishing paternity in Massachusetts, and reviewed whether an unmarried person must obtain a court’s permission to move out of a Massachusetts with a minor child.
Our attorneys also cover court-related subjects, such as how probate and family court judges punish parties for dishonesty in custody cases, and the impact of unnecessary litigation and misconduct in custody cases. Our blogs have touched on procedural issues, such as “home state” jurisdiction in interstate custody cases, as well as practical information, such as changes to the Massachusetts law requiring divorcing parents to attend the Parent Education Class.
We have covered the progress of legislation potentially affecting child custody in Massachusetts, such as the proposed shared custody statute, the Massachusetts Child-Centered Family Law, in its original and amended forms.
We have written extensively on the Department of Children and Families (DCF), reviewing what parents should know if they are contacted by DCF, or are subject to a 51A investigation for alleged abuse or neglect of a child. Likewise, we have covered the blurry legal distinctions between corporal punishment, spanking and child abuse in Massachusetts. Our coverage of DCF extends to the news, including reviewing and commenting on news stories covering DCF, appellate decisions impacting DCF and Massachusetts’ status as the state with the highest rate of child abuse and neglect in the United States.
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If you need legal representation in a child custody case, please call us at (781) 741-5000. An attorney from our office will evaluate your claim during a free one-hour consultation. We will help you navigate your legal issue with care, diligence and strong, cost-effective client service.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. You are invited to contact our office. Contacting the office does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. This blog is considered an advertisement for The Law Office of Lynch & Owens, P.C. The Massachusetts Rules of Professional Conduct broadly govern all advertisements and communications made by attorneys and law firms in the Commonwealth. Generally, legal websites and any other content published on the internet by lawyers are considered a type of communication and an advertisement, according to the Comments to Rule 7.2.