Know the Laws: Massachusetts
UPDATED November 9, 2012
State-specific information about custody in Massachusetts.
To get a custody order from a court, you will need to start by filing a “complaint” in the Probate and Family Court in your county, or perhaps the county where your child is living, if that is different. You can download the form from the MA Courts System website here. For a list of courthouses in MA, go to our MA Courthouse Locations page
On the complaint, you will be asked to provide your address. If you do not want the other parent to know your address because you fear physical harm, you can ask to have your address kept confidential. Ask the clerk of court (the person in charge of keeping records) how to do this. You will also be asked to fill out an affidavit (a sworn statement) giving information about where your children are living, any legal action that has been filed in court concerning these children, and the names of all people who claim a right to custody of these children. This form is called an Affidavit Disclosing Care and Custody Proceedings.*
If you need help from the court right away to determine temporary custody, set up a visitation schedule or decide on child support, you will need to file a motion for temporary custody, visitation or support. Be sure to tell the clerk if this is what you are looking for. Generally, you can do this at the same time you file your complaint.
* See MassLegalHelp.org
Next, you will need to give notice to the other parent that you have filed a complaint for custody. This process is called “service of process.” This is done by having a third party who is 18 or older (generally a constable or sheriff) hand copies of the legal papers to the other parent. There is generally a fee for this service but if you have an affidavit of indigency (proving you are low-income) that was approved by the court, bring that with you and the fee can be waived.*
For a list of sheriff departments in MA, go to our MA Sheriff Departments page.
After the papers are served, be sure to get back the proof of service form from whoever serves the papers and be sure to bring that paper to court. That signed form is your proof that the abuser was served in case he doesn’t appear in court.
* See MassLegalHelp.org http://www.masslegalhelp.org/domestic-violence/chapter12-probate-court
After the complaint is filed, your case will be assigned to a particular judge. All of your court dates will generally be scheduled with your assigned judge.
If you filed a motion for temporary orders, the court will set a date for a temporary order hearing. The temporary order you receive will stay in place until another order replaces it. It may be replaced by another temporary order, or by the judgment you receive after your final hearing. Before this hearing, you may be asked to meet with a probation officer or a motion mediator. The mediator will try to help you and the other parent come to a temporary agreement. If you do reach an agreement, the judge will review it and then it will become a court order, unless the court finds that the agreement will not be in the best interests of the child.
Note: You are not required to reach an agreement with the other parent, and the probation officer and/or motion mediator have no authority to make an order that you do not agree with. Also, if you are afraid of the other parent, or if you are seeking (or have) a 209A abuse prevention order (a restraining order) against the other parent, you do not have to meet with the mediator in the same room as the other parent.
Again, it is best to talk to a lawyer before starting this process, or at the very least have a lawyer look over your papers before you file them, so you can make sure you are not making any mistakes. For more information, go to MA Finding a Lawyer.