Child Custody Laws

Will child custody always go to the mother?

No. The Massachusetts General Laws, as well as the Case Law, indicate that in the absence of misconduct, the rights of the parties shall be deemed to be equal. However, the courts will generally look to what is in the best interests of the child, as well as what arrangements the parties had in effect prior to the filing of the divorce. For example, if the mother stayed at home and took care of the child while the husband worked, then in all likelihood the court will continue that arrangement. Accordingly, which parent is deemed to be the child’s “Primary Caretaker” is always an important consideration.

What is the difference between physical custody and legal custody, and what is shared legal or joint legal custody?

Physical custody simply refers to the parent with whom the child or the children reside. Legal custody on the other hand, refers to which parent will have the right to make major decisions on behalf of the child or children. Accordingly, a parent who has legal custody will have the right to determine all major life decisions, including elective major medical procedures, religious upbringing, school, etc. When parties have shared legal custody, also known as joint legal custody, the parties must consult and agree on all major life decisions for the children. Because child custody often permanently affects the relationship between a parent and a child, when the parents are unable to agree, the court will conduct an extensive inquiry in order to determine what is in the “best interests of the child”. In making such a determination, the court will frequently appoint at “Guardian Ad Litem (GAL)” to investigate issues relating to child custody and visitation, and to report back to the court. The GAL will interview the parties, talk to witnesses, talk to the children, and in some cases may interview the children and parents together, obtain medical records, school records, etc., and will then usually make a recommendation to the court. If a party does not agree with the recommendations of the GAL, the matter can proceed to trial; however, judges often, but not always, place enormous weight on the recommendations of the GAL. Oftentimes a recommendation of a GAL can be challenged based on bias, lack of experience, failure to interview critical witnesses, or an otherwise less than thorough investigation.