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Know the Laws: Massachusetts

UPDATED November 28, 2016

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State-specific information about custody in Massachusetts.

The custody process

back to topWhat will the court custody process look like?

It depends.  Most of the time, after one or both parents file for custody in court, the parents (possibly with their attorneys), can come to some sort of agreement about child custody.  If they can agree, the judge will review that agreement and, under most circumstances, turn it into a formal court order.*

Sometimes, parents cannot come to an agreement. In that case, the judge might order the parents into mediation, where a mediator tries to get you and the other parent to come to an agreement.  However, this is generally not a good idea in domestic violence situations.

If the parents still cannot agree, or the judge does not order mediation, then there is a trial, where both parents can present evidence and witnesses to strengthen their case.  There may be one hearing or a series of hearings.  At trial, if one or both parents are asking for shared custody, both parents (together or separately) will be asked to submit a plan that details how custody will be shared, including where the child will live, plans for the child’s education and health care, ways to resolve disputes between the parents regarding child-raising decisions and duties, periods of time that the child will live with each parent, etc. The judge may use the plan(s) to decide what will go into the final custody order or the judge can reject the plans and issue a sole legal and physical custody award to either parent.*

At the end of the trial, the judge will decide who will get custody and what other terms will go in the custody order.  If you think that your case is headed for trial, we strongly suggest that you get a lawyer to represent you.  Custody cases can be complicated and it is best to have someone in court by your side who can help you through the process.  See our MA Finding a Lawyer page for more information on how to find a lawyer in MA.

* M.G.L.A. 208 § 31

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back to topHow will a judge make a decision about custody?

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.*  The judge will look at any factor s/he thinks is important to make this decision. There are some factors that the judge has to consider by law:

  1. whether or not the child's present or past living conditions negatively affect his/her physical, mental, moral or emotional health;*1
  2. any past or present abuse committed by one parent against the other parent or against the child;*2 (For more information, see Can a parent who committed violence get custody or visitation?) and
  3. if the parents were never married, and the judge decides to give custody to one parent, the judge is supposed to: 
        a. try to maintain the relationship between the child and the parent who has been the primary caretaker of the child, if possible;
        b. consider which parent the child lived with during the 6 months immediately before the custody hearing; and
        c. consider whether one or both parents have established a close, parental relationship with the child, or acted as a parent in the child’s best interests.*3 Note: In order to grant joint custody to parents who were never married, the judge can only do so if the parents agree or the judge finds that the parents have successfully exercised joint responsibility for the child in the past and that they can communicate and plan with each other concerning the child's best interests.
If the parents are divorcing, generally they are considered to have temporary shared legal custody while the divorce is pending unless the judge orders otherwise.  When making this decision, the judge must consider whether any member of the family abuses alcohol, drugs, or has deserted the child; and whether the parties have a history of being able and willing to cooperate in matters concerning the child.*1

Although the following factors are not specifically included in Massachusetts law, some other things that a judge might look at in any custody case include:
  • Who has been the primary caretaker for the child?
  • Is the child doing well in his/her current situation?
  • How is the child performing in school?
  • Where would the child go to school if living with the other parent?
  • How much quality time can each parent spend with the child?*4
  • Depending on the age and maturity of the child, the judge might consider the preference of the child (but this is never a deciding factor).*5
* M.G.L.A. 208 § 31; M.G.L.A. 209C § 10
*1 M.G.L.A. 208 § 31
*2 M.G.L.A. 208 §§ 31; 31A
*3 M.G.L.A. 209C § 10(a)
*4 See Massachusetts Continuing Legal Education, Inc. "Family Law Advocacy for Low and Moderate Income Litigants: Child Custody" (2008)
*5 See Bak v. Bak, 511 N.E.2d. 625 (1987)

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back to topIf a judge denies a request for custody, does s/he have to explain why?

The law says that if a judge grants temporary or permanent custody to an abusive parent, either in a custody action or as part of a 209A abuse prevention order, the court must enter written findings explaining why the custody order is in the best interest of the child, even though the other parent is/was abusive.*

* M.G.L.A. 208 §§ 31; 31A

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back to topIf I have moved away from the home, leaving my children with the abusive parent, will this affect my chances of gaining custody?

Maybe.  It is likely that the judge will look at who has been the primary caretaker for the child when deciding who the child should live with, which means the judge will look to see who has been and who is currently spending the most time with the child, feeding the child, taking the child to school, etc.*  If you have moved away from your child for a significant period of time, it may be harder to argue that you have been the child’s primary caretaker.

However, it is important to remember that a judge will take into account past or present abuse committed by one parent against another parent.**  Therefore, if you have moved away to escape abuse, you can explain to the judge why it was necessary for you to leave the home where your child currently lives.

Note: Before leaving the home without your children, we strongly suggest that you consult with a lawyer (if at all possible) for advice on how this could affect your chances of getting custody based on the facts of your particular situation.

* Massachusetts Continuing Legal Education, Inc. "Family Law Advocacy for Low and Moderate Income Litigants: Child Custody" (2008)
** M.G.L.A. 208 § 31A

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back to topHow much does it cost to file for custody?

There is a $115 fee to file for custody, visitation, or paternity.  If you are filing for custody as part of a divorce, the fee is $215 to file for divorce.*  If you cannot afford the filing fee, ask the clerk if you can apply to get the fee waived.  This will require filling out an “affidavit of indigency,”** which is a sworn statement in which you give facts to prove you are a person of low-income.

* See the Massachusetts Court System website
** M.G.L.A. 261 § 27B

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back to topDo I need a lawyer?

You do not need a lawyer to file but it is highly recommended that you get a lawyer if you can, especially if the other parent has one. Custody cases can be complicated, and it is helpful to have someone guide you through the process.

If you cannot afford a lawyer, you may be able to find free or low-cost legal help in your area on the MA Finding a Lawyer page.

If you plan to file for custody on your own, you may want to read the informational manual called Representing Yourself in a Civil Case on the Massachusetts Courts website.  Even if you plan on representing yourself, you may want to consider having a lawyer review your papers before you file them.  Avoiding mistakes as much as possible will help save you time and may improve your chances of success.

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back to topWhere can I file for child custody? (Which state has jurisdiction)?

Generally, you can file for custody or file to modify a final custody order in your child’s “home state.”  MA will qualify as your child’s “home state” if:

  • Your child has lived in Massachusetts with you or the other parent, or a person acting as a parent, for 6 consecutive months immediately prior to the start of the custody proceeding. (Note: It is OK if you or your child are temporarily absent from MA during the six-month period).*
Note: If a custody proceeding has already started in a court of another state, and the outcome of that proceeding is pending (has not happened yet), a Massachusetts court may not be able to hear your case, even if MA is now your child’s home state.**

Exceptions to the “home state rule”: Even if Massachusetts is not your home state, a Massachusetts court may be able to exercise jurisdiction (decide your case) if:
  • Your child is no longer living in but MA was your child’s “home state” within 6 months prior to the start of the custody proceeding MA (and the child’s parent currently lives in MA);
  • No other state has jurisdiction (the ability to hear your case), and it is in the best interest of your child for the case to be heard in MA because you or your child have a significant connection to MA and there is substantial evidence available in MA concerning the child's present or future care, protection, training, and personal relationships.***
Moving Concerns:
  • If you and your child recently moved from Massachusetts to another state, generally you cannot file for custody in that new state until you have lived there for at least 6 months (unless you qualify for “temporary emergency custody”—see below). Until then, you or the other parent may be able to start a custody action in MA, as long as your child has most recently lived there for at least 6 months.
  • If you and your child recently moved from another state to Massachusetts, generally you cannot file for custody in MA until you have lived there for at least 6 months (unless you qualify for “temporary emergency custody”—see below). Until then, you or the other parent may be able to start a custody action in the state you moved from, as long as your child has most recently lived there for at least 6 months.
Temporary emergency custody can be granted in a state that is not your child’s home state if it is necessary to keep your child safe from abuse or other danger.***  See Can I get temporary emergency custody? for more information about what it is and who can file for it.

* M.G.L.A. 209B §§ 1; 2(e)
** 28 U.S.C.A. § 1738A(g)
*** M.G.L.A. 209B § 2(a)

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