The Probate and Family Law Court only intervenes and makes decisions for divorcing parents about child custody as a last resort in Massachusetts. The court prefers that parents come to a workable agreement themselves and include their proposed arrangements in a separation agreement. However, realistically, making decisions which both parents can agree to about the welfare of their children can be difficult, especially if the reasons why the breakup is occurring are due to an irreconcilable relationship.
If child custody arrangements must be determined by the court, then the court will do so in the best interests of the children concerned. But what exactly does the “best interests of the children” actually mean and how does the court interpret this statement. This article hopes to shed some light on this important topic.
Before the Family Law Court intervenes, what can couples do to decide on child custody in Massachusetts?
The court’s opinion is that when couples come to an arrangement by themselves amicably, or with the help of third parties, and cement the arrangements in the form of a legally binding agreement, then this may be the best for the shared children. But what can couples do when their marriage or civil union is falling apart and separation and divorce looks as if it is inevitable? At this point it should be pointed out that the following suggestions do not apply if there is a history of abuse, either spousal abuse or child abuse in the relationship. It is most likely that if this is the case that the spouse who is the victim in this relationship seeks legal assistance as soon as possible. Evidence of serious mental and/or physical abuse will almost always mean that the court will be involved in helping to make a decision about child custody arrangements.
In non abusive situations, couples may approach marriage counseling services for help in resolving their differences. This may involve meetings with a marriage or divorce counselor who can act as a mediator. Separations and divorces are complex and challenging experiences and there is usually more than just child custody arrangements to consider. What constitutes marital (i.e. shared) assets and how these should be distributed can almost be as difficult a decision to make as child custody.
In some circumstances, where only one parent is seeking a divorce, the best option for that person is to seek legal help from an experienced and sympathetic divorce attorney to work through the best options looking forward.
Once it has been determined that decisions cannot be made cooperatively, the court can be requested to intervene
One or both parents can file a request for the court to make a decision about child custody arrangements in an impending divorce. This decision should not be taken lightly as once the judge has come to a decision, both parents must comply with the child custody order, including any associated orders such as for child support and spousal support. The court’s child custody order is not entirely cast in stone as it is recognized that, in time, situations change. Ex spouses re-marry or form new relationships; one or the other may decide to move further away from the household where the children are mainly cared for, financial opportunities may tilt the balance of the financial security available to care for the children. Modifications to a child custody order may be made in the future if the court determines that these are still in the “best interests of the children”.
The Massachusetts court’s standard for the best interests of the children
In Massachusetts law, General Law G.L. c. 208, § 31, determines that “the happiness and welfare of the children shall determine their custody”. Final decisions about individual cases of child custody are made by a judge after many different factors are carefully considered. If there is more than one child in the family to consider, what is in the best interests of one child may not be in the best interests of the other(s). What is in the best interests of the children in one family may not be in the best interests of children in another family whose parents are divorcing.
So, what criteria does the judge use in determining exactly what is the best interests of each child in a child custody decision? The following are the main factors considered:
- the age and sex of each child;
- the individual health needs of each child;
- the relationship between the children and each of the parents;
- whether there has been any history of spousal or child abuse, physical or mental;
- each parent’s individual emotional and physical health;
- the fitness of each parent to provide care for the children following a divorce;
- religious and cultural beliefs involved;
- the preferences of any child who is considered mature enough to give their opinion.
As part of making a decision about child custody, the judge will have interviewed both parents and considered their preferences, although these may not necessarily mean that either parent or both parents will get exactly what they wanted. The judge will have to decide whether one parent has the primary responsibility for physical custody of the children or the children spend time being looked after alternately by each parent. Sole physical custody with visitation and vacation rights is the most common arrangement, assuming that the divorcing spouses continue to live in close enough proximity so that the relationship between the children and both parents can continue.
The court considers that unless there has been a history of abuse, it is in the best interests of the children for both parents to have joint legal custody, which means that decisions about continuing educational needs, religious and cultural considerations and health should be made jointly, even if the responsibility for physical custody is largely given to one or the other parent, irrespective of whether this is a female or male parent.
An experienced Massachusetts divorce attorney can provide valuable legal advice prior to a court’s involvement
Once the Family Law court is involved, it can be hard to reverse the request for the court to intervene, so if at all possible, one or preferably both parents should consider asking a family law attorney to provide legal advice. Even if the court is finally the best option left, the attorney can still help the parent(s) with the court process and final decision making. In the event that modifications are requested sometime in the future, again an attorney can provide advice about how to frame this in a request to the court.