In Massachusetts How does a Judge decide Custody if the Parents are not married?
The mother has sole, legal and physical custody of the child if there is no court order and the parents are unmarried. However, going into court you can get a custody order such to either ask that the father seek sole physical custody, or he could look for joint physical custody. Some of the factors that are considered is who is the primary caretaker; who does the child live with prior to the custody case beginning and taking into consideration the relationship with the child and the parents and the parents relationship with each other; some of the responsibilities for what is in the child’s best interest.
Shared custody is less of a presumption where the parents are unmarried, if there is a custody agreement the court can follow that; or if they can show that the parents have exercised the parental responsibilities together before the custody case begins.
If the Parents are both Married, who has temporary custody before going to Court?
Both parents have shared temporary legal custody which means the decision making regarding the child and there is going to be a presumption for that in court. The Court can order temporary sole legal custody to one parent, but the court needs to make a written decision about why the temporary shared legal custody is not in the child’s best interest. There can be examples of that if there is a family member that abuses alcohol, drugs; prescription medication or if the parents deserted the child. Domestic violence are examples of reasons why the judge might not agree for shared legal custody as well.
For Shared Physical Custody, if you are married and have not gone to Court.
Not only is there shared legal custody, but there is also shared physical custody and until you go to court and if you are married, you both have the right to live with your child and make decisions about your child’s life. You can file sole physical custody including, on a Temporary Motion or even on an Emergency Motion.