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Child Custody


There are four forms of child custody with which you should be familiar:


Sole Legal Custody -- one parent will have the right and responsibility to make major decisions regarding the child's welfare, for example, where the child goes to school, what religion the child will be raised in and what sort of medical care the child should receive.


Shared Legal Custody -- continued mutual responsibility and involvement by both parents in major decisions regarding the welfare of the child.


Sole Physical Custody -- a child will reside with and be under the supervision of one parent, with reasonable visitation granted to the other parent unless the court determines that visitation would not be in the child's best interests.


Shared Physical Custody -- a child will have periods of residing with and being under the supervision of each parent.  For example, a child will spend four days with mom and the next four days with dad.  Another example of shared physical custody is if brother lives primarily with dad and sister lives primarily with mom.  


By far the most common arrangement is shared legal custody, with primary physical custody with one parent or the other.  Sole legal custody may be appropriate if communication between the parties has completely broken down, one parent has abandoned the family, or if there are domestic violence or substance abuse issues within the family.  Although currently less common, many creative shared physical custody arrangements are possible if the parties can agree and the best interests of the children are served.


When divorcing parents cannot agree about parenting arrangements for their children, a prolonged custody conflict has only two predictable results.  First, the intense conflict between the parents that usually attends a child custody battle is likely to be very disruptive and upsetting to the child.  If at all possible, it is usually best for the children if the parents, and not a judge, make decisions about parenting arrangements after a divorce.  Second, a parent gearing up for a child custody battle must be prepared to pay substantial legal fees and will likely also be required by the Court to pay for some or all of the cost of a guardian ad litem.   A guardian ad litem (or "GAL") is an independent lawyer or mental health professional appointed by the Court to investigate the situation and submit a report and recommendations to the judge.


If a child custody conflict is unavoidable, then the standard that a judge uses to determine with which parent a child will live is "best interests of the child".  In order to make this determination, a judge will consider many factors, including which parent has been the primary caregiver in the past, the quality of each parent's relationship with the child, and which parent has the economic, physical and emotional capacity to better meet the child's current and future needs.


Contrary to popular belief, the mother does not always win custody of the children after a contested child custody trial.  With fathers and mothers more equally involved in child-rearing and with both parents having work schedules to consider, in many situations there can be a legitimate dispute about which parent should have primary responsibility for the children after a divorce.  The law in Massachusetts is that parents have an equal right to the custody of their children, and judges are increasingly making decisions based not upon the gender of the parent, but upon an examination of the quality of a child's relationship with each parent, and an assessment of each parent's capacity to effectively nurture the child.





Important Note:
The Probate and Family Court requires all divorcing parents of minor children to take a parent education class on the effects of divorce on children.

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