Massachusetts Criminal Defense Attorney

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Child Custody: The Basics

Raising children with your ex-spouse, partner, significant other, or acquaintance can be very stressful. Often each parent has their own ideas of how they want to raise their child. This can range from styles such as free-range to helicopter parenting and anywhere in between. Parents often find themselves at odds over the child’s religious upbringing, which school system the child should attend, what kinds of extracurricular activities are appropriate, and other various day to day decisions that a parent must make.

There are two types of custody in Massachusetts known as legal custody and physical custody. Legal custody gives the parent the right to make major life decisions for the child including religious upbringing, medical treatment, and education. Physical custody determines with whom the child will live. Generally, both parents will have shared legal custody where they have to communicate and make decisions together about major decisions in the child’s life. If the parents cannot agree, then the court will make the decision for them after hearing both sides. In only rare circumstances will a parent lose legal custody. A parent can lose legal custody when there has been sexual abuse or severe physical abuse of the child.

Physical custody tends to be the issue parents fight over the most. Both parents love their child and while they want what is best, they often cannot agree on what that is for the child. Courts can award joint physical custody where the child spends equal amounts of time at each parent’s home such as Monday morning to Thursday morning at one home and Thursday morning to Monday morning at the other parent’s home. The court will only award joint physical custody in cases where the parents agree to it and can effectively communicate with each other. If the parents cannot get along, the court will determine which parent will have sole physical custody meaning where the child’s primary residence will be and which parent will have parenting time (formerly known as visitation).

If you have never been to court before and therefore there is no court order determining who has custody, then Massachusetts law states that if theparents are married, they share joint legal and physical custody. If theparents were never married, then the mother has sole legal and physical custody even if the father’s name is on the birth certificate. A father will only have custodial rights in Massachusetts if he files the appropriate paperwork in court and the court enters an order granting him custody rights. In the case of a same sex relationship where the parties were never married, only the biological mother will have sole legal and physical custody of the child until there is a court order stating otherwise.

If the parents cannot agree on a custody arrangement, the court will decide the custody issue based on the best interests of the child. The court will consider a variety of factors including:

  • Primary caretaker of the child
  • Where the child resided over the past six months
  • Substance abuse issues
  • Physical, emotional, and verbal abuse directed at the child
  • Relationship between parent and child
  • Child’s overall well-being including physical, mental, and emotional health
  • Parents ability to communicate and/or if either parent attempts to alienate the child from the other parent

If you are having a custody issue, we can help you. Depending on the facts and circumstances of your case, we will discuss the best way to proceed. In some cases, an Emergency Motion for custody needs to be filed. Those kinds of cases include physical abuse or substance abuse by a parent that puts the child’s immediate safety at risk. An emergency motion can be filed and acted upon by the court in a single day. If the court agrees that the child’s health, safety, or well-being is at risk, they can terminate parenting time until both parties appear in court which is usually within a couple of days. Once all the parties appear in court, both parents will have an opportunity to explain the issue and the outcome they are seeking.

In other cases, we can file a Motion for Temporary Orders. This type of motion is often filed with a Complaint for Divorce or by a parent who was not married to the child’s mother to establish an initial custody agreement. A Motion for Temporary Orders can be filed for a hundred different reasons and include when one parent is seeking to vacation with the child out of state, seeking to change the child’s primary residence for purposes of education, wants the child to participate in an extracurricular activity that the other parents does not, or wants the child to participate in certain religious services.

If the court has already entered a custody agreement, a parent can file a Complaint for Modification if the agreement is not working out. The parent will have to show a substantial change in circumstances in order to change the custody agreement. A substantial change in circumstances could be that one parent has a substance abuse problem, has a new job and is never home to care for the child, or has met someone new and wants to move out of state with them.

There is a metaphor sometimes used in family services at the courthouse that really helps parents understand the importance of co-parenting and it is as follows: Raising a child is like running a business. If the two business partners, or parents in the case of a child, cannot communicate and get along with each other, the business will go bankrupt. The same thing happens to the child if all they see is hostility and negativity between their parents. That is why we advocate for resolutions that addresses the issue but does not drive a further wedge between the parents.

Our goal at Sweeney & Associates is to resolve your custody issues in a manner that allows you to successfully co-parent your children. While that is not always possible because of the actions of the other parent, we do our best to handle your case in a way that is conducive to that goal. We recognize that when the court case is over, you will still have to communicate with your child’s other parent. Sometimes that communication is limited to text message or email communication, but communication is always necessary when co-parenting a child.

If you have questions about child custody, divorce, or another family law issue contact Sweeney & Associates for a free consultation. Contact us at (617) 328-6900 or by email at mail@rsweeneylaw.com.

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