The care and control of a child is called custody. There are two parts to custody:  legal custody and physical custody. 

Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing – schooling, religion, medical care, etc.

Physical custody means that a parent has the right to have a child live with him or her.

Sole custody means only one of the parents makes decisions for the child.

At the outset, parents start with joint custody rights and responsibilities. Courts can determine custody and issue custody orders in a divorce or other proceeding involving the children.

Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities and/or control and custody of the children.  Joint custody works well if you live near the other parent, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive lawsuit. Custody cases are the cruelest and most destructive types of litigation. They are expensive both emotionally and financially. 

The legal standard used to decide who will get custody is what is in the best interests of the children. In Massachusetts, certain doctrines, presumptions and considerations govern the custody decision, but in the end it comes down to the judge’s judgment. As a practical matter, each judge sees each situation differently. 

Historically, children were considered by the law to be the property of their parents.  Eventually, as men went to factories and worked long days, women were left in the home to care for the children. The courts responded with the “Tender Years Doctrine”.

Custody of children, particularly those under the age of seven, was usually awarded to mothers based on this doctrine. The theory was that mothers had a special bond with young children and only mothers knew intuitively how to care for young children. The only way for a father to win custody back then was to prove that the mother was unfit, meaning that she was unable to care for the children properly, or abused or neglected them.

Times have since changed. More women are in the workforce. More homes have two working parents. More men are participating as primary caregivers or co-caregivers for the children. Research has shown that fathers make just as good parents for young children as mothers do. The courts have acknowledged this and eliminated the “Tender Years Doctrine”.

In Massachusetts, the age and sex of the children are considered by the court, but there are several other factors considered as well. 

Generally, each of the Massachusetts Probate & Family courts will look at the following factors in deciding who gets custody: 

• Parental rights – parents must be shown to be unfit before children will be given to somebody else

• Continuity –  stability and routine is a key component in addressing the best interests of the child

• Children’s preference – the older the children, the more weight the judge will give their preference

• Other factors – custodian’s age, health, wealth, religious beliefs, conduct, type of home, location of residence, etc.

Massachusetts has also enacted the presumption in favor of joint custody. This means that the court typically finds that joint custody is in the best interest of the child, unless one party proves it is not.

More and more, the parenting plan removes the winner-loser approach of custody and visitation. Ideally, both parents work together, to achieve the child’s best interests. A well-written parenting plan addresses each parent’s rights and responsibilities in detail.

No matter where you live in Massachusetts, contact the family law attorneys from The Massachusetts Family Law Group.  We represent every sort of custody, visitation or parenting plan matter you could ever imagine.  We offer 5AM and weekend appointments at our offices in Dedham, Andover, Worcester, Springfield, Plymouth and on Cape Cod.

From here, you may want to view a Child Visitation Record or Child Care Checklist.

We accept all major credit cards and offer a 30-minute no-obligation initial consultation.  Contact us to schedule an appointment, or call (800) 910-DIVORCE.