By: Christina Pashou, Esq.
Massachusetts recognizes both legal and physical custody, and these are granted on a sole or joint basis.
“Legal custody” refers to major decision making for the child(ren). Sole legal custody refers to one parent having the right to make important decisions regarding the child(ren)'s wellbeing, which include education, medical care and religious practices. Joint legal custody refers to both parents having a shared responsibility to make these decisions for their child(ren) – meaning neither parent can make a unilateral decision on the child’s wellbeing. When parents are married to each other, both parents automatically share legal and physical custody of the children unless and until a court orders otherwise. When the parents are not married to each other, the mother has sole legal and physical custody unless and until a court orders otherwise.
Where a child resides is referred to as “physical custody.” If you and your spouse cannot agree on the physical custody of your child(ren), then this issue will be left for a judge to decide. The Massachusetts Probate and Family Courts determine physical custody based on numerous factors, including, which parent has been the child(ren)’s primary caregiver during the course of the marriage. However, the most important factor courts consider when deciding custody, is the best interests of the child. A judge making a custody determination in a Massachusetts divorce case will be guided by the best interests of the child(ren) involved. As such, custody decisions are based only on the needs of the children and neither parent begins with any greater right to physical custody than the other.
Sole physical custody is when the child(ren) resides with and is under the supervision of one parent, subject to reasonable visitation by the other parent.
Joint physical custody is when a child has “periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.” If a child resides approximately two-thirds of the time with one parent, that parent is generally referred to as primary custodial parent. If a child resides equally, or approximately equally, with both parents, that arrangement is referred to joint physical custody. Massachusetts also allows for “hybrid” parenting schedule options that fall in between these two models, which result in parenting plans that are not based on a fifty percent - fifty percent schedule nor a one third – two third schedule. Such parenting plans will be decided based on the best interest of the child(ren).
It is important to note that each case is unique based on the circumstances of your divorce and most importantly the age of your child(ren). Therefore, although Massachusetts provides guidelines on proposed parenting plans, each case will be decided based on its unique factors.
To speak with a lawyer about divorce or other family law matter, contact Mavrides Law in Boston, Newton, or Quincy, MA. To schedule an initial consultation, call 617-723-9900 or contact the firm at email@example.com