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Legal Information: Massachusetts

Custody

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Updated: 
March 29, 2019

If a custody order is already in place, can I get it changed?

You can file to have your current custody order changed (modified) 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.1

There are many reasons why a parent may file to have an order modified. Some examples of situations where a parent might file to have an order changed are:

  • 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.2

1 M.G.L. 208 § 28
2Family Law Advocacy for Low and Moderate Income Litigants: Child Custody: Chapter 16 Modifications, 3rd Edition (2018)

Can I change the state where the case is being heard?

To modify a custody order, you usually need to go to the court that issued the order, even if you have moved. Generally, once a court has jurisdiction (the power to hear the case), that court will keep jurisdiction over all future custody decisions. In some situations, if you and your child have moved, you can ask the court to change the jurisdiction to the new state, or county, that you are in. For more information, see our Changing a final custody order section of our general Custody page. Trying to change the venue (location) of a case can be complicated and if you have moved to a new state, we recommend that you talk to a lawyer for help and advice. Go to the MA Finding a Lawyer page to find someone who can help you.

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

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;
  • require you to get permission from the judge or the other parent before taking your child out of state; or
  • 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 leave something of value (known as posting a bond) to ensure that you will return the child to Massachusetts.1Note: If your custody order specifically does not allow you to take your child out of the state without permission from the judge 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.2

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 you are allowed to be outside Massachusetts while that order is in effect. However, a temporary emergency order may be difficult to get, especially if there is an ongoing custody case in Massachusetts. 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. For legal referrals, go to our MA Finding a Lawyer page and select the state you plan to flee to. For more information about what you would have to prove to get temporary custody, please see Can I get temporary emergency custody? on our Parental Kidnapping page.

If you are planning to move out of Massachusetts permanently, you will most likely have to apply in court to change (modify) 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 changed to allow both you and the other parent time with the child while living far apart. The judge will decide if the child can leave Massachusetts (based on what the judge believes is in the child’s best interests). When making this decision, the judge will likely consider:

  • how the move could make your child’s life better (including any improvement in your life that may benefit the child); and
  • the possible negative effects that the move could have on your child (including not being able to visit with the other parent on a regular basis).3

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

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

Generally, the parent without custody (the non-custodial parent) 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, the judge can order that the address on the child’s records be kept confidential if:

  • you have custody and you have any type of restraining order against the non-custodial parent; or
  • keeping the current or prior address of you or the child private is necessary to ensure the health, safety, or welfare of you or the child.1

If keeping your address confidential is a concern of yours, remember to bring this to the attention of your lawyer or the judge before the court case ends.

1 M.G.L. 208 § 31