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
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