Legal Information: Massachusetts


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October 24, 2018

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.1  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:

  1. whether or not the child's present or past living conditions negatively affect his/her physical, mental, moral or emotional health;2
  2. 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?) and
  3. if the parents were never married, and the judge decides to give custody to one parent, the judge is supposed to: 
        a. try to maintain 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 6 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 as a parent in the child’s best interests.4Note: 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 exercised joint responsibility for the child in the past and that they can communicate and plan with each other concerning the child's best interests.

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.  When making this decision, the judge must consider whether any member of the family abuses alcohol, 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.2

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?5
  • 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).6

1 M.G.L.A. 208 § 31; M.G.L.A. 209C § 10
2 M.G.L.A. 208 § 31
3 M.G.L.A. 208 §§ 31; 31A
4 M.G.L.A. 209C § 10(a)
5 See Massachusetts Continuing Legal Education, Inc. "Family Law Advocacy for Low and Moderate Income Litigants: Child Custody" (2008)
6 See Bak v. Bak, 511 N.E.2d. 625 (1987)