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Legal Information: Massachusetts

Custody

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Updated: 
March 29, 2019

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.