Know the Laws: Massachusetts
UPDATED November 9, 2012
State-specific information about custody in Massachusetts.
Custody is the legal responsibility for the care and control of your child (under 18 generally). The court may give custody of your child to one or both parents. There are 2 types of custody: legal and physical.
A court may award one parent sole legal custody, or both parents shared legal custody.
A court may award one parent sole physical custody, or both parents shared physical custody.
Joint custody is another term used to refer to “shared custody.” Both mean the same thing. A court or your lawyer may use these terms interchangeably.
Visitation allows a parent to visit with his/her child. How often the visits take place, where the visits take place, and whether or not the visits need to be supervised by another adult, will all be determined by the court.*
Unlike legal custody, visitation does not give a parent the right to make major decisions about the child’s well-being, including education or medical care matters. A parent must have either sole or shared legal custody in order to make those decisions.
Unlike physical custody, a child will not live with a parent who has visitation rights. However, the child may be able to have overnight, weekend, or even longer visits with the parent, depending on what the court decides.
* M.G.L.A. 208 § 31; M.G.L.A. 209C § 10
Getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
It depends. If the parents are married and have not gotten a custody order, both spouses automatically share legal custody of the child until a judge says otherwise.* This means that both you and your spouse have the right to make major decisions about your child’s life.
If you were never married, and there is no custody order in place, the mother has custody of the child whether paternity (legal fatherhood) has or has not been established by the father. Paternity can be established by signing and filing a voluntary acknowledgment (usually done at the hospital at birth) or by a judge’s order after either parent files a paternity petition in court. Once paternity is established, the mother is still considered to have custody, unless and until the father files for and receives shared or sole custody in court.** However, if you are considering moving out of state with your child, and the other parent disagrees, please talk to an attorney who specializes in custody to figure out whether or not you can do so without the court's permission. Go to MA Finding a Lawyer for legal referrals.
* M.G.L.A. 208 § 31
** M.G.L.A. 209C § 10(b)
Technically, the judge can give custody to either the mother or the father, or can give shared custody to both parents after paternity is established. However, the judge will only give shared custody to both parents if the parents agree or if they have shown the ability to communicate with one another and plan with each other in a way that will be helpful for the child. If this is not the case, the judge will give one parent sole custody. When deciding who gets sole custody, the judge is supposed to try to maintain the relationship between the child and the parent who has been the primary caretaker of the child. The judge will also consider which parent the child lived with in the 6 months immediately before the custody hearing and whether either parent or both parents have established a close, parental relationship with the child, or has acted as a parent in the child’s best interests.*
* M.G.L.A. 209C § 10(a)
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to MA Finding a Lawyer to seek out legal advice.
Generally, both parents are entitled to seek sole or shared custody from the court. However, if the parents are unmarried, the father must first establish paternity (legal fatherhood) before seeking legal custody of his child.* Paternity can be established by a judge if one parent files a paternity petition in court, or outside of court if both parents sign and file what is called a “voluntary acknowledgement form.” You can read more about paternity and how to establish it on MassLegalHelp.org.
Grandparents may also be able to seek custody of their grandchildren in certain circumstances. See I am the child’s grandparent. Can I get custody or visitation of the child?
* M.G.L.A. 209C §§ 10(b); 11
A parent could get custody or visitation even if he was abusive.
When making a decision about temporary or permanent custody, the judge will take into account evidence of past or present abuse committed by one parent toward the other parent or toward the child. If the court finds that there is a pattern of abuse or that a serious incident of abuse has occurred, the court will assume it is not in the best interest of the child to be placed in the custody of the abusive parent, unless the abusive parent can show otherwise.* Note: Having a 209A abuse prevention order cannot alone be used as proof that the required level of abuse occurred.
If temporary or permanent custody is given to the abusive parent, either in a custody action or as part of a 209A abuse prevention order, the court has to explain in writing why the custody order is in the best interest of the child, even though the other parent was abusive. This written explanation must be done within 90 days.**
If visitation is granted to the abusive parent, the judge can take the following steps to try to keep you and the child safe:
It depends on various factors. We suggest talking to an attorney for advice on your situation. Go to our MA Finding a Lawyer for free and paid legal referrals.
Grandparents may seek custody (temporary or permanent) of their grandchild if they believe that the child is at risk living with their parents. In order to gain custody, the grandparents need to:
Maybe. If you have lived with the child, participated in the child’s life, and taken care of the child in a significant way, the court may decide that you are what is called a “de facto parent” and give you visitation rights if it is in the best interests of the child.*
A “de facto parent” can also be a person who has no blood relationship with the child, such as the same-sex partner of the child’s mother. A court may decide it is in the best interests of the child to continue a relationship with this de facto parent, even if the legal parent disagrees.**
* See Youmans v. Ramos, 711 N.E.2d 165 (Mass. 1999)
** See E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999)
Yes. As part of your 209A order, the judge can award you temporary custody of your child.*
If you already have a 209A order in place and it does not grant you temporary custody, you can likely file to have your order modified (changed) to include this provision. There will most likely be another hearing, and the abuser will have the opportunity to appear in court to argue against your request. However, instead of filing to modify the order to include a temporary custody provision (which will expire when the 209A order expires), you may want to file a separate petition for custody. We strongly suggest that you consult with a lawyer first to help decide what is best for you. Go to MA Finding a Lawyer for legal referrals. For more information on how 209A orders, please see our MA Abuse Prevention Order page.
* M.G.L.A. 209A § 3(d)
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
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:
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
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
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
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.
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:
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.
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)
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.
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)
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
You can seek a child support order if you are raising your child and living separately from the other parent. It does not matter whether you are married or unmarried.*
If you are unmarried, before the court can issue a child support order, the father’s paternity (legal fatherhood) has to be established.** The father and mother can voluntarily acknowledge paternity together by signing and filing an acknowledgment of parentage, or you can seek to have paternity established by a court order.***
Child support can be filed for as part of a divorce action, a separation action, a custody action, a paternity action, or it can be filed for on its own. You can also receive a temporary child support order as part of a 209A abuse prevention order.****
* M.G.L.A. 209C § 9; M.G.L.A. 208 § 28; M.G.L.A. 209 § 37
** M.G.L.A. 209C § 11
*** M.G.L.A. 209C § 2
**** M.G.L.A. 209A § 3(e)
A parent is obligated to support his/her child until the age of 18 at least, and until the age of 21 if the child is still living with a parent and primarily dependent upon that parent.*
* M.G.L.A. 209C § 1; M.G.L.A. 208 § 28
Child support payments are calculated according to the MA Child Support Guidelines, available here. For more information on how to get your child support order enforced once you have the order, visit the MA Child Support Enforcement website.