In Massachusetts Child Custody Cases, who gets Custody of the Child (children)?
The Probate and Family Court determines physical custody based on a variety of factors. The standard is the best interest of the child or children. One of the more important factors is who has been the child or children’s primary caregiver during the course of the marriage and that means who does the day to day activities with the children. Nowadays it is more often that it be more shared than traditional.
What is the difference between Joint Physical Custody and Sole Physical Custody?
There is “Legal Custody” which means making the major decisions regarding the minor child(ren). Generally, if the parties are married, there is a presumption that it be “Joint Legal Custody” but not always. If the parties are unmarried that presumption does not necessarily apply.
Usually, with legal custody it deals with four major components; including decisions regarding the child(ren)’s religious upbringing, major medical care of the child, schooling and extracurricular activities. The physical custodian, the primary caretaker or who has sole legal custody, is not typical in Massachusetts, but it is becoming much more frequent than it used to be.
“Joint Physical Custody” is where parents share either equal or nearly equal parenting time. It is done by an Agreement, although the Court can make that as an Order and it would be determined on what is in the child(ren)’s best interest.
If there is a Dispute about who should be the primary caretaker or should have Sole Physical Custody, the Courts will determine that based on a variety of factors. If the children are older, having an ARC Attorney being assigned to the children, there can be a Guardian Ad Litem (“GAL”) that will write a report and make recommendations and factors such as the bond between the parent and the child. Again, who is the primary caretaker throughout the child’s life, how is the child doing in school and pediatrician. A variety of collaterals can sometimes be looked at to help give a less biased opinion than family members or friends.
Can Visitation be Denied if Child Support is not Paid Timely?
The answer is No. Visitation and parenting time is different than child support. You can file a Contempt action if a party is not paying child support, but you cannot deny visitation. The parent cannot get more visitation or parenting time just because they are paying child support.
Can my Children decide which Parent they want to Live with?
The answer typically in Massachusetts is No. However, the older the child is, the more mature the child is, the greater weight the Courts can provide that child. Children are not allowed in the Court room. Most often letters from the children are not allowed. However, sometimes children can have an attorney appointed to them and it is called an “ARC Attorney”, the ARC Attorney can make the child’s preference known.
In addition, a GAL (Guardian Ad Litem) can be appointed and can interview the children and put down what the children want in the GAL’s report. Sometimes what is called a” Family Service Officer or Probation Officer” can speak to the child or children.
Generally, the reasons they don’t want the children to be in court is they don’t want the trauma of the Court case, putting the children in the middle of things, and also sometimes having undue influence in terms of a child writes a letter or talks in front of the parent; which typically the Courts finds it more reliable if they are able to have that outside of the parents presence when they talk to an ARC Attorney, GAL or Probation Officer.