If you don’t find the information that you are looking for, or if you have further questions, please feel free to send us your question on our Email Hotline. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
Basic info and definitions
What is custody?
Custody is the legal responsibility for the care and control of your minor child. The judge may give custody of your child to one or both parents. There are two types of custody: legal and physical.
- Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care and religious development.
- Physical custody deals with whom the child will live with on a day-to-day basis.1
1 M.G.L. 208 § 31; M.G.L. 209C § 10
What options are there for legal custody?
A judge may award one parent sole legal custody or both parents shared legal custody.
- Sole legal custody means one parent will have the right to make major decisions about the child’s well-being, including matters of education, medical care and religious development.
- Shared legal custody means that both parents have the right to take part in major decisions about the child’s well-being.1
1 M.G.L. 208 § 31
What options are there for physical custody?
A judge may award one parent sole physical custody or both parents shared physical custody.
- Sole physical custody means the child will live with one parent and be under that parent’s supervision. The other parent will be allowed to have visitation with the child, unless the judge decides that visitation would not be in the best interest of the child.
- Shared physical custody (also called joint custody) means the child will split his/her time between both parents’ homes. The time will be split so that the child will have a lot of contact with both parents.1
1 M.G.L. 208 § 31
What is the difference between custody and visitation?
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.1
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 long-term 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 judge decides.
1 M.G.L. 208 § 31; M.G.L. 209C § 10
Who has custody if there is no custody order in place?
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.1 This means that both you and your spouse have the right to make major decisions about your child’s life.
If the parents were never married, and there is no custody order in place, the mother has sole legal and sole physical custody of the child unless a judge orders otherwise. Unlike most other states, this is true even if paternity (legal fatherhood) has 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. However, as mentioned above, 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.2
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 need the court’s permission first. Go to MA Finding a Lawyer for legal referrals.
1 M.G.L. 208 § 31
2 M.G.L. 209C § 10(b)
Should I start a court case to ask for supervised visitation?
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. Often, 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 the MA Finding a Lawyer page to find a lawyer who can give you legal advice.
Who can get custody and visitation
Who can file for custody?
Generally, both parents are entitled to file for 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.1 Paternity can be established by in court if one parent files a paternity petition in court, or outside of court if both parents sign and file what is called a “voluntary acknowledgment 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?
1 M.G.L. 209C §§ 10(b); 11
Can a parent who committed violence get custody?
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 judge 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.1
For custody purposes, “abuse” means:
- attempting to cause bodily injury;
- causing bodily injury; or
- placing someone in reasonable fear of immediate (imminent) bodily injury.
“Serious incident of abuse” means:
- attempting to cause serious bodily injury;
- causing serious bodily injury;
- placing someone in reasonable fear of immediate (imminent) serious bodily injury; or
- causing someone to sexual relations against their will due to force, threat, or duress.1
Note: Having a 209A abuse prevention order cannot alone be used as proof that the required level of abuse occurred.1
If the child was conceived by rape and the parent was convicted of the rape, this will be enough to prove that there was a serious incident of abuse.2
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.3
1 M.G.L. 208 §§ 31A; 209C § 10(e)
2 M.G.L. 209C § 10(e)
3 M.G.L. 208 §§ 31A; 31; 209C § 10(e)
Can a parent who committed violence get visitation?
A parent who committed violence can get visitation. However, if visitation is granted to the abusive parent, the judge can take the following steps to try to keep you and your child safe:
- order that the visitation be supervised by an appropriate third party, visitation center, or agency;
- order that the exchange of the child take place in a safe setting, or in front of an appropriate adult;
- not allow overnight visits;
- order the abusive parent to not use alcohol or drugs during the visit and for 24 hours before the visit takes place;
- require the abusive parent to attend a batterer’s treatment program;
- require the abusive parent to post a bond (money) to ensure that the child will be returned to you;
- order an investigation by or the appointment of a guardian ad litem or attorney for the child; and
- order anything else that the judge thinks is necessary to provide for your safety and for the safety and well-being of your child.1
1 M.G.L. 208 §§ 31A; 209C § 10(e)
I am the child’s grandparent. Can I get custody?
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:
- get permission from the parents to take custody; or
- prove to a court that the parents are not fit to care for their child1 (which can be difficult to do).
1 See Page v. Page, 329 Mass. 764 (1952); In re Adoption of Carlott, 71 Mass.App.Ct. 1117 (2008)
I am the child’s grandparent. Can I get visitation?
In order to get visitation from the court, grandparents must show that not being able to visit with the child will cause the child significant harm, and in particular, will hurt the child’s health, safety, or welfare.1 The grandparents must also show that visitation would be in the child’s best interests.2
Grandparents can ask the court to order visitation only if any of the following are true:
- one or both parents are dead;
- the parents are divorced;
- the parents are married but are living apart;
- the parents are under a temporary order or judgment of separate support; or
- the parents are unmarried and living apart. (Note: If the paternal grandparents are the ones seeking visitation, the father’s paternity must be established before the grandparents can file for visitation.
The grandparents cannot ask for a visitation order from the court if both parents are:
- living together; and
- refusing to let the grandparents visit with the child.2
1 See Blixt v. Blixt, 437 Mass. 649(2002)
2 M.G.L. 119 § 39D
I am not the child’s parent but I took care of the child as a parent would. Can I get visitation?
A judge may only consider giving you visitation if you can prove that you were what is known as a “de facto parent,” which means that you took on the role of parent on a day-to-day basis. 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.1
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.2
1 See Youmans v. Ramos, 429 Mass.774 (1999)
2 See E.N.O. v. L.M.M., 429 Mass. 824 (1999)
The custody process
What will the court custody process look like?
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.1
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, mediation is generally not a good idea in domestic violence situations due to the imbalance of power between the parties.
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.1
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 legal referrals.
1 M.G.L. 208 § 31
How 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, which the law also refers to as the “happiness and welfare” of your child.1 The judge could look at any factor s/he thinks is important to make this decision but there are a couple of factors that the judge has to consider by law:
- whether or not the child’s present or past living conditions have a negative effect on the child’s physical, mental, moral, or emotional health;2 and
- any past or present abuse committed by one parent against the other parent or against the child.3 (For more information, see Can a parent who committed violence get custody or visitation?)
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
1 See M.G.L. 208 § 31; M.G.L. 209C § 10
2 M.G.L. 208 § 31
3 M.G.L. 208 §§ 31; 31A
4 Family Law Advocacy for Low and Moderate Income Litigants: Chapter 9: Child Custody, 3rd Edition (2018)
5 See Bak v. Bak, 24 Mass.App.Ct. 608 (1987)
Are there any additional factors a judge will consider when deciding custody between parents who were never married?
If the parents were never married, and the judge decides to give sole custody to one parent, the judge is supposed to:
a. keep 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 six 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 responsibly in the child’s best interests.1
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 shared joint responsibility for the child in the past; and
- they can communicate and plan with each other concerning the child’s best interests. 1
1 M.G.L. 209C § 10(a)
Are there any additional factors a judge will consider when deciding temporary custody between parents who are in the process of divorce?
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. (However, this does not mean that they will necessarily have temporary shared physical custody.) When deciding whether temporary shared legal custody would not be in the best interest of the child, the judge must consider:
- whether any member of the family abuses alcohol or 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
1 M.G.L. 208 § 31
If I have moved away from the home, leaving my children with the abusive parent, will this affect my chances of gaining custody?
It is hard to say how each individual judge would consider a situation where a parent fled the home but left the children behind. On one hand, it is likely that the judge will look at who has been the primary caretaker for the child, 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.1 If you have moved away from your child for a significant period of time before filing for custody, 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.2 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 children currently live.
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.
1 Family Law Advocacy for Low and Moderate Income Litigants: Chapter 9: Child Custody, 3rd Edition (2018
2 M.G.L. 208 § 31A
How 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.1 (These costs are accurate as of December 2018.) 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,”2 which is a sworn statement in which you give facts to prove you are a person of low-income.
1 See the Massachusetts Court System website
2 M.G.L. 261 § 27B
Do 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 as well as our Preparing for Court – By Yourself section. 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.
Where can I file for child custody? (Which state has jurisdiction)?
Under a law called the Massachusetts Child Custody Jurisdiction Act, you can only file for custody in the “home state” of the child unless you meet one of the exceptions. The child’s “home state” is the state where your child has lived with a parent or a person acting as a parent for the past six consecutive months. If your child is less than six months old, then your child’s home state is the state where s/he has lived since birth. (Leaving the state for a short period of time does not change your child’s home state.)1
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least six months. (There are some exceptions explained in the next question.)
Here are some examples:
My children lived in Texas their whole lives. We just moved to Massachusetts five months ago. In my case, Texas is my children’s “home state.” If I want to file for custody right now, I will probably need to file in Texas.
My children lived in Texas until we moved to Massachusetts six months ago. Because the children have lived in Massachusetts for six months, Massachusetts is their “home state.” I will likely need to file for custody in Massachusetts (assuming there was no prior case in Texas). However, the other parent can ask Massachusetts to defer to Texas because Texas has more information about my children’s lives that does Massachusetts. It would be up to the judge in Massachusetts.
My children lived in Massachusetts until they left to live with their father in Texas two months ago. Because they haven’t lived in Texas for six months yet, their home state is still Massachusetts. If I want to file for custody, I can file in Massachusetts as long as I haven’t moved out of Massachusetts.
1 M.G.L. 209B § 1
What are the exceptions to the “home state rule?”
If a custody proceeding has already started in a court of another state, and the case has not ended, a Massachusetts court may not be able to hear your case, even if Massachusetts is now your child’s “home state.”1
Even if Massachusetts is not your home state, a Massachusetts court may be able to exercise jurisdiction (decide your case) if:
1. Your child is no longer living in Massachusetts but:
- Massachusetts was your child’s “home state” within six months prior to the start of the custody proceeding; and
- one of the child’s parents currently lives in Massachusetts;
2. No other state has jurisdiction (the power to hear your case) and it is in the best interest of your child for the case to be heard in Massachusetts because:
- you or your child have a significant connection to Massachusetts; and
- there is substantial evidence available in Massachusetts concerning the child’s present or future care, protection, training, and personal relationships.2
Note: 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 six 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 Massachusetts, as long as your child has most recently lived there for at least six 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.2 You can read more about temporary emergency custody in our Parental Kidnapping section - see Can I get temporary emergency custody?
1 28 U.S.C § 1738A(g)
2 M.G.L. 209B § 2(a)
Steps for filing for custody
The exact steps depend on your particular situation, and whether or not you will be filing for custody as part of your divorce or separation action, paternity action, or on its own. However, below are the general steps that you will likely take.
Step 1: File the custody complaint (petition) in court.
To get a custody order from 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 Massachusetts Courts System website. For a list of courthouses in Massachusetts, 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 harm, you can ask to have your address kept confidential. Ask the court clerk how to do this.
If you need immediate temporary custody, visitation, or 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 want to do. Generally, you can do this at the same time you file your complaint.
Step 2: Get the custody papers served on the other parent.
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 proof that you are low-income in the form of an “affidavit of indigency” that was approved by the judge, bring that with you and the fee may be waived.1
For a list of sheriff departments in Massachusetts, 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 s/he doesn’t appear in court.
1 See MassLegalHelp.org
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
Step 3: Appear in front of the judge.
After the complaint is filed, your case will be assigned to a particular judge.
If you filed a motion for temporary orders regarding custody or child support, 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 decision (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 judge 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.1
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.
1 M.G.L. 209A § 3
After the hearing
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