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
What are the steps for filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
2. Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.
To find out more about how the process works in your area, please contact a lawyer. Please visit our MA Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
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)