Making decisions about how to care for dependent children on separation or divorce can be one of the most challenging and stressful experiences. Child custody decisions must be part of any separation agreement which needs to be submitted to the Probate and Family Court before a divorce petition can be approved, so it is important to understand what is involved from a legal point of view in Massachusetts.
Legal and physical custody explained
Massachusetts recognizes two main different types of child custody. These are legal and physical custody.
Legal custody means having the right to make decisions about the child’s welfare. This means being able to be part of making decisions about the child’s health care, education, moral upbringing, religious affiliation and involvement as well as any other important factor affecting the child’s upbringing. It is standard practice for courts to prefer that both separating parents share joint legal custody as long as this does not have any negative effect on the child’s welfare. Massachusetts family courts always consider the ‘best interests of the child’ whenever decisions about child custody are brought before them in a divorce settlement.
Physical custody is different from legal custody, even though courts still prefer that both parents agree on the decisions which are made. Physical custody means the decisions made about where the child physically lives and which parent the child lives with most of the time. If one of the two parents has the main responsibility for looking after the child, i.e. has physical custody of the child, it doesn’t mean that the other parent cannot be involved. There are various options in physical custody that may work. Again, the court will be considering the ‘best interests of the child’ in whatever arrangements are made.
Sole custody
When one parent is granted sole custody, it means that that parent has the sole right to make decisions about the child, together with the responsibility to provide a physical home for that child. If this is a decision which the court has ordered then it means that they have considered many factors regarding the ability of each parent to continue looking after the child as well as the relationship the child has with each parent and any other factors such as the intention of that parent to foster a continuing relationship between the child and the other parent.
Sole physical custody usually involves making decisions about visitation rights for the other parent unless there has been a history of serious domestic or child abuse prior to the break-up of the marriage. To decide that a single parent should be given sole custody of a joint child is not taken lightly by the courts and only after consideration of the ‘best interests’ of that child.
Note that when there is more than one dependent joint child involved, there may be different custody decisions made for the individual children, although courts will generally tend to prefer that all the joint children stay together, unless there is considerable evidence that other arrangements are better.
Visitation and other rights
In some situations, both parents may decide that dependent children can be looked after in a shared arrangement, i.e. the children stay with one parent for a period of time, then stay with the other parent for a similar period of time. This shared physical custody may also be regarded as acceptable by the court when the arrangement is presented as part of the separating parents’ settlement agreement.
This isn’t an easy arrangement to make work and in most cases where a separation or divorce is taking place, one parent takes on most of the day to day physical care of the dependent child or children but allows the other parent to visit the children, or more commonly look after the children for a shorter period of time on a regular basis. The court will prefer that a visitation schedule is drawn up if it is decided that physical custody will be given to one of the two parents to allow access to the children by the other parent and that a continued relationship can be maintained.
Examples of visitation schedules may include weekends or a single day, vacation periods, etc., but as with other aspects of child custody and asset distribution, these must be specified in the separation agreement for the court to agree to a divorce petition.
Cohabiting parents do not have the same rights as married parents in Massachusetts
Unless the court decides otherwise, two parents who are not married do not share the same rights as married parents. Legally, the mother will be given sole legal and physical custody of the dependent joint children unless the parents are married. If the unmarried father wishes to challenge this custody decision, he must be able to prove paternity before the court grants him a share or sole legal and physical custody dependent on the overriding concern the court must have to consider the ‘best interests’ of the children.
Note that cohabiting parents also do not have the same rights that a married couple has in relation to such matters as alimony (spousal support), child support and asset distribution on separation. For example, in Massachusetts, the court will consider the entire assets of a married couple when it makes a decision about asset distribution. This includes any assets acquired before marriage and individual assets acquired during marriage, including bequests or inheritances.
The court uses an assessment of marital assets to decide on an ‘equitable’ distribution of those assets on divorce. This equitable division of assets is not available to unmarried couples who separate. The fact that division of assets cannot be assured or enforcement of alimony or child support for separating cohabiting couples may significantly affect the partner (in this case almost always the mother) who looks after the children after separation.
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