The Child Custody Order Process in Massachusetts
When couples decide to separate, or when a separation occurs because one of the partners decides to quit for reasons of their own, one of the more difficult sets of decisions that has to be made is what to do about shared children. Who should they live with? Who will look after them and provide the care and attention as well as the financial means to keep them healthy and happy? Can both parents care for them? Who has the right to spend time with the children? These questions come up whenever couples separate and are often difficult questions to solve to the satisfaction of each parent and to the children themselves.
Much depends on why and how the parents separate. If they can do so cooperatively and in a constructive fashion, there may be no need to depend on the Family Court. It may still be a sensible idea to talk things over with a lawyer and put an agreement about looking after the children post separation or divorce in writing. Things can change if either or both partners remarry or form new relationships and arrangements purely made by word of mouth can cause confusion and misunderstanding. It is usually the children, unfortunately, who are affected the worse when this happens. A written agreement made with the help of a family law attorney can help prevent future problems. If there is future disagreement or dissatisfaction with the way things turn out, then one or both parents can turn to the Family Court to issue a child custody order.
Legal and physical custody in Massachusetts
The two components of child custody that the court makes a decision on are:
- a) physical custody; and
- b) legal custody.
Physical custody is the arrangement in which the child(ren) are cared for physically, i.e. who they live with and who cares for them on a day to day basis, puts a roof over their heads, feeds them, makes sure they are educated, takes them to the doctor or hospital when they are sick etc. It doesn’t mean that the other parent doesn’t have visiting (parenting) rights or time with the child, and it is possible to have joint physical custody, too.
Legal custody is the right to have an influence on the wellbeing of the child, make joint decisions about their welfare, education, health, vacations, etc., even if the child is not actually living with this parent. A parent may be given sole physical custody and legal custody or either component may be shared, according to the decisions made by the Family Court in the best interests of the child.
The main determinants of a child custody order
When the Family Court is involved and one or other parent has filed a child custody order, the court will make a careful decision about child custody based on what it considers the best interests of the child(ren). The only other criterion that the court looks at is the residence status of the child(ren). They must have been ordinarily resident in the state for the previous 6 months at least.
Child custody orders issued in Massachusetts are not cast in stone
Child custody orders are not expected to be modified abruptly. The court can grant a temporary child custody order quite quickly if necessary, e.g. if one or another of the parents have experienced domestic violence, especially if this involves child neglect or abuse and is in some sort of potential or actual danger. The court may also consider changing or modifying a child custody order previously issued if there is good supporting evidence supplied which supports an application for a modification, e.g. new relationships, financial hardship, moving out of state or overseas.
The child custody process in Massachusetts
The child custody process, specifically what you as a parent do to get a child custody order made by the court, affects how long it takes for the court to issue a child custody order. More long lasting child custody orders do take time, but the court can make a decision faster if you present sufficient evidence that convinces the court that you are the best person to care for your children, i.e. this choice is in the best interests of your children. Your attorney can help you obtain evidence to submit with your application for a child custody order.
Note that in Massachusetts, there are different provisions for married couples and unmarried couples. If a married couple separates or divorces, either or both parents can have sole or shared physical and legal custody depending on what the court decides is int the best interests of the child. In the case of an unmarried couple, the mother automatically has sole right to retain custody of the child unless there are very good reasons in the court’s view why this should change.
The parent who wishes to file for a child custody order must obtain an affidavit which contains as much evidence as possible explaining why you think you would be the best person to have custody of your child. This information could include explaining how you can provide:
- a safe, comfortable place for your child to live in;
- suitable and sufficient food and clothing;
- the medical care and attention when they need it;
- supervision of their safety and behavior;
- their educational needs;
- daily physical and emotional support.
To support your affidavit, you may be able to ask other people who know you and your family to also provide an affidavit explaining why they may consideryou the best person to take custody of your child. These people should preferably have some standing in the community, such as teachers, medical professionals, etc. They may need to attend court to testify if theyhave submitted affidavits.
All affidavits must be signed in front of a lawyer or notary to say that the information they contain are correct.
An investigator may be assigned by the court called a GaL (Guardian ad Litem) or a Family Service Officer who can ask you and the other parent questions and make enquiries about the relationship you have had with your children. You can ask the court to appoint such a person if you think this may help your case.
Each child custody order decision is unique, just as each family’s circumstances and reasons for break up are unique. This makes it hard to give a precise time line on how long a decision may take once you have filed for a child custody order.
Having an empathetic and knowledgeable family law attorney to help you with preparing an affidavit and filing your request for a child custody order is probably the best way of achieving a favorable decision made as quickly as the court will allow. In Winchester MA, contact the Law Offices of Richard Mucci at 781-729-3999.