Separation or divorce can be a challenging and stressful experience and if there are shared children, plans about how to care for them can be some of the most difficult decisions to make.
If the two parents can come to a mutually agreed plan about child custody, then this is by far the best way to proceed. If this is possible, it is still advisable to ensure that the decisions are carefully articulated in a written plan which has been witnessed by the court. A family law attorney can help parents come up with a suitable parenting plan.
Mutually agreed child custody plans may still be modified in future as long as the children’s interests are paramount.
When mutual agreements cannot be amicably be made, the Probate and Family Law court is usually asked to make a decision about how the children should be cared for after the separation of the parents. If this is to be the case, the court will always decide on a plan which puts the best interests of the children first, after consideration of the individual circumstances of each parent and the relationship between the children and their parents.
Difference between legal and physical custody in Massachusetts
In Massachusetts, there is a distinction between legal custody of minor children and physical custody. When the court has been asked to make a decision about child custody it will make a decision about both legal and physical custody and whether each type of custody is to be assigned to a single parent or is to be shared.
Legal custody refers to the right to make decisions about the welfare of each child. This includes decisions about their education, health, emotional, moral and where relevant religious development. Legal custody may be assigned to a single parent or, more commonly, shared between the two parents (joint legal custody).
Physical custody refers to which parent has the responsibility for caring for the children on a day to day basis. If one parent is given physical custody of the children, then the children will spend most of their time living with that parent, although the other parent will be given opportunity to visit the children on a determined visitation plan and the children may also stay with that parent from time to time, such as at weekends or vacations.
Shared, or joint, physical custody is when the children live with either parent for specified periods, i.e. both parents have responsibility for day to day care of the children, including providing them with a suitable home, providing them with food, looking after their immediate welfare, etc.
Of the different potential combinations of legal and physical custody it is most common for both parents to end up sharing joint legal custody while one parent retains sole physical custody. In this situation, the court will devise a visitation schedule that allows the parent without sole physical custody to have visitation rights and when this parent will be able to spend time with his or her children.
Factors the court considers when making decisions about child custody
There is nothing definite that the court takes into account when considering what form of legal and physical custody to decide on apart from the bottom line that whatever arrangements are finally made are made in the best interests of the children.
Factors that the court may consider before making a decision include the following:
- whether there has been a past history of abuse or neglect by one or other of the parents;
- the emotional and psychological bond between the individual children and the parents;
- the ability of each parent to provide a suitable home for the children; this includes providing shelter, food, clothing and any other necessities;
- the physical and mental health of each parent;
- the willingness of each parent to ensure that the other parent has a continuing positive and quality relationship with the children; and
- any other factor that the court deems relevant considering the circumstances.
Presumption to take into consideration both parents’ relationship with the children
The court will generally consider both parents’ interest in their joint children when devising a child custody arrangement unless one or the other parent has had a history of physical or emotional abuse, violence or neglect. The court will often order a temporary custody arrangement while divorce proceedings are taking place which allows joint legal custody. This temporary arrangement may then be modified by the court when the two parents have finalized their divorce and have separated.
Sole custody arrangements are normally ordered if one of the parents has been known to have inflicted violence on the children or on the other parent. The court will also consider the parent to be abusive even if he or she has made an attempt to threaten or made an attempt to physically harm the children.
Modifications to the child custody order
The court prefers that whatever parenting plans that have been ordered are retained as long as possible as it provides a stable arrangement for the children. However, at some time in the future it is quite possible that either parent may decide that the circumstances have changed and that the parenting plan, whether this involves legal or physical custody, or visitation rights, should be modified.
Parents are allowed to file a motion to modify the plan, giving their reasons why they think this should happen. The court will then reassess the original plan that has been in operation and whether the modifications would be in the best interests of the children. As with the original parenting plan, any modifications that are mutually agreed to by the two parents are likely to be more favorably considered by the court than when any change to the plan is challenged by one or the other of the parents.
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