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Know the Laws: Massachusetts

UPDATED November 28, 2016

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State-specific information about custody in Massachusetts.

After the hearing

back to topIf a custody order is already in place, can I get it changed?

Possibly.  You can file to have your current custody order modified (changed) if there has been a material and substantial change in circumstances since the order was issued, and changing the order will be in the best interests of the child.*  Most modification actions are brought because one parent wants to relocate to a new state or county that is far away, visitation arrangements are no longer working, or the parent who has custody is not meeting the child’s needs.**

Generally, you will file a complaint for modification at the probate and family court that issued your original custody order.  The hearing may be similar to previous custody hearings, but you will have to prove a material and substantial change in circumstances has occurred.**

* M.G.L.A. 208 § 28
** Massachusetts Continuing Legal Education, Inc. "Family Law Advocacy for Low and Moderate Income Litigants: Child Custody" (2008)

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back to topCan I change the state where the case is being heard?

If you move to another state, you may be able to change the state where the custody case is being heard.  However, cases generally remain in the court where they began, especially if a lot of time has already been devoted to the case.  It may also depend on whether or not the other parent agrees or disagrees with the transfer.  This is a complicated issue, so it may be best to contact a lawyer if this applies to you.  See our MA Finding a Lawyer page to find a lawyer or legal services organization near you.

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back to topIf there is a custody order in place, can I take my kids out of the state?

It depends.  Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says.  The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address the issue at all.   If you do want to leave for a short period of time and the other parent does not consent, the judge may require that you post a bond (money) or other type of security to ensure that you will return the child to MA.*  Note: If your custody order specifically does not allow you to take your child out of the state without permission from the court or the other parent, and you do so anyway and violate the order, there is a chance that you could be charged with either contempt of court, parental kidnapping, or both.**

If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to.  Getting a temporary order will mean that you have legal custody of your child for the time being, and therefore it is OK to be outside Massachusetts, while that order is in effect.  However, this is difficult to get, especially if there is an ongoing custody case in MA.  We strongly suggest that you talk to a lawyer in the state you plan to flee to before arriving there if this is something you are thinking about doing.  Go to MA Finding a Lawyer for free and paid lawyers.  For more information about what you would have to prove to get temporary custody, please see Can I get temporary emergency custody?

If you are planning to move out of MA permanently, you will most likely have to apply in court to modify (change) your custody order.  If the other parent has visitation rights, or if you share custody with the other parent, the visitation order would have to be re-worked to accommodate the fact that you would be living far away.  It will be up to a judge to decide whether or not the child can leave MA (based on what the judge believes is in the child’s best interests).  When making this decision, the judge will likely consider the possibility that the move will improve your child’s life (including any improvement in your life that may benefit the child), and the possible negative effects that it could have on your child, including not being able to visit with the other parent on a regular basis.***

* M.G.L.A. 208 § 30
** See M.G.L.A. 265 § 26A
*** See Pizzino v. Miller, 858 N.E.2d. 1112 (Mass. App. 2006)

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back to topCan a parent who does not have custody have access to the child’s records?

Generally, the non-custodial parent (the parent without custody) can have access to the child’s academic, medical, hospital or other health records.   Awarding sole legal or physical custody to one parent will not prevent the other parent from accessing the child’s records.  However, if the parent with custody has any type of restraining order against the non-custodial parent or if revealing the present or prior address of you or the child is necessary to ensure the health, safety or welfare of you or the child, the court can order that the address on the records be kept confidential from the non-custodial parent.*  If this is a concern of yours, remember to bring this to the attention of your lawyer or the judge before the court case ends.

* M.G.L.A. 208 § 31

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