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Legal Information: Massachusetts

Custody

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Updated: 
March 29, 2019

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:

  • alive;
  • married;
  • 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)