At Sweeney and Associates, our family law practitioners handle matters involving child custody, parenting time and child support issues. Our attorneys find that for parties who never wed or for parties who have already been divorced, custody and child support issues continue to be an issue.
In order to change a custody agreement, the moving party must show a substantial change in circumstances. Essentially this means a party cannot seek to change custody just because he or she wants to or it would be more convenient. There has to be a legitimate reason for the court to change the current agreement.
It is also important to keep in mind that the standard the court uses is the best interests of the child. Courts do not grant custody or parenting time based on what is best and easiest for the parents, but rather they look at what is in the best interests of the child involved.
There are two types of custody in Massachusetts known as legal custody and physical custody:
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 the parents are married, they share joint legal and physical custody. If the parents 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:
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.
In many cases, our clients have required our assistance to file an Emergency Motion with the court stopping visitations immediately until a hearing can be held with both parties. These cases arise unexpectedly due to unforeseen circumstances, and clients often find themselves navigating a foreign world.
At Sweeney & Associates, LLC we are able to guide our clients through the process and ensure that any and all steps that are necessary to be heard before a judge on an emergency basis are taken. It is important to be prepared BEFORE you file and to ensure that all of the evidence is presented to the court so that you can achieve the best possible outcome. Our experienced trial attorneys are well-versed in presenting evidence to the court when the safety of your children may be at stake.
Please schedule an initial consultation so you can learn more about our services and how we can help you achieve your goals. You may call our firm at (617) 300-0212 or you may contact our family law office online.