Child custody in Massachusetts

What the law tells the judge to look at

In the order the law lists them.

1. The judge decides custody based on the child's happiness and welfare. Parents' rights are equal unless a parent has done something wrong (misconduct).Mass. Gen. Laws ch. 208, § 31
2. Whether the child's present or past living conditions harm the child's physical, mental, moral, or emotional health.Mass. Gen. Laws ch. 208, § 31

Other things the judge considers

• Past or present abuse toward a parent or a child counts against the abusive person in every temporary or final custody order.Mass. Gen. Laws ch. 208, § 31A; ch. 209C, § 10(e)
• Parents not married to each other: if custody goes to one parent, the judge should keep the child's bond with the parent who has been the main caretaker, as much as possible. The judge also looks at where and with whom the child lived in the 6 months before the case, and whether each parent has built a parent-child relationship or acted responsibly as a parent.Mass. Gen. Laws ch. 209C, § 10(a)
• For temporary shared legal custody while a divorce or separation case is going on, the judge looks at all the facts, such as alcohol or drug abuse in the family, whether a parent left the child, and whether the parents have been able and willing to cooperate about the child.Mass. Gen. Laws ch. 208, § 31
• When deciding whether to change custody or parenting time, the judge must consider whether a law of another state that bans gender-affirming health care would likely disrupt or stop that care for the child.Mass. Gen. Laws ch. 208, § 56(c)

What the judge may not consider

Another state's law that bans gender-affirming health care, or lets a child be removed because a parent allowed that care, cannot be a reason to change custody or parenting time, unless the parent's conduct would be abuse or neglect under Massachusetts law (Mass. Gen. Laws ch. 208, § 56(a)-(b)). A parent convicted of first-degree murder of the child's other parent cannot get visitation unless the child is old enough to agree and does agree (ch. 208, § 28).

Joint custody

No presumption at trial. The law favors neither shared nor sole custody, except that abuse creates a presumption against custody to the abusive parent. While a divorce or separation case is going on, married parents have temporary shared legal custody unless there is an emergency, abuse, or neglect, or the judge finds in writing that it is not in the child's best interest. For parents who were not married, the judge can order joint custody only if the parents agree, or if they already shared responsibility well before the case and can communicate and plan together.

Domestic violence

If the judge finds a pattern of abuse or one serious incident of abuse by a parent (against the other parent or the child), the law presumes it is not in the child's best interest to give that parent sole custody, shared legal custody, or shared physical custody. The parent can overcome this only with proof that the custody is in the child's best interest. Abuse means causing or trying to cause bodily injury, or making someone afraid of immediate bodily injury. A serious incident includes serious injury, fear of serious injury, or forced sex. A restraining order alone does not prove a pattern or serious incident. If the judge finds abuse and still makes a custody order, the judge must write findings within 90 days on how the abuse affects the child. Parenting time for an abusive parent must protect the child and the other parent, for example with supervised visits, safe exchanges, a batterer's program, no alcohol or drugs, or no overnights. If the judge orders shared custody even though there was a restraining order, the judge must explain why in writing.

Who has custody before a court order

If the parents are not married, the person who gave birth has custody of the child. This stays true after parentage is set by a voluntary acknowledgment or a court, until a Probate and Family Court makes a custody order. The court's self-help page says the birth parent has sole legal and physical custody until a court orders otherwise.

Establishing paternity

How

Both parents can sign a Voluntary Acknowledgment of Parentage. Your signatures must be notarized. You can sign it at the hospital after the birth (no fee there), at the clerk's office of the city or town where the child was born (the clerk may charge a fee), or at the state Registry of Vital Records and Statistics (there is a fee). Once signed, the other parent is a legal parent and is added to the birth certificate. Either signer can cancel it within 60 days of signing. After 60 days it is like a court judgment and can only be challenged in court within 1 year, for fraud, force, or a major mistake of fact. You can also file a Complaint to Establish Parentage (CJD 106) in the Probate and Family Court in the county where the child lives, or ask the Department of Revenue Child Support Services for help.

Form

Voluntary Acknowledgment of Parentage

Cancelling it

Within 60 days of signing, file a notarized rescission with the Department of Public Health or a petition in the Probate and Family Court where the child and one parent live, with notice to the other parent. If you take part in a court case about the child during the 60 days and do not raise it, you lose the right to cancel.

Agency

Massachusetts Department of Revenue, Child Support Services (establishing parentage)
https://www.mass.gov/how-to/how-to-establish-parentage
1-800-332-2733

Changing an order

You can ask to change a custody or parenting time judgment by filing a Complaint for Modification (CJD 104). The judge can change it if there has been a material and substantial change in circumstances since the judgment and the change is needed for the child's best interest. To change a temporary order, file a motion (CJD 400). If both parents agree, you can file the change together.

Law: Mass. Gen. Laws ch. 208, § 28

If the other parent does not follow the order

If the other parent does not follow the order, you can file a Complaint for Contempt (CJD 103) in the Probate and Family Court to enforce the order or judgment. The judge can also order parents in a contempt case to take the co-parenting course. If the problems keep happening, you can ask to change the order.

Law: Probate and Family Court forms for contempt actions; Standing Order 3-23 § B

Grandparent visitation

Yes. Grandparents can ask the Probate and Family Court for reasonable visitation if the parents are divorced, married but living apart, under a separate support order, or if a parent has died, or if the parents were never married and do not live together (parentage must be set, except when the mother's parents ask). The judge must find in writing that visits are in the child's best interest. Court cases also require the grandparents to show that the child would suffer significant harm without visits. No visits are allowed after an adoption by anyone other than a stepparent. File where the divorce, separate support, or parentage case was filed. There is no filing fee.

Custody by someone who is not a parent

A judge can give custody to a non-parent if it is in the child's best interest and both parents (or the surviving parent) consent in writing, or if the parents are unfit (or one is unfit and the other consents). In a divorce, the judge can give custody to a third person if it is for the child's benefit. A person who has lived with and cared for the child as a parent may also ask the court to be named a de facto parent.

Custody and visitation in the order

Yes. A 209A order can give you temporary custody of a minor child. You can ask in the Probate and Family Court or in a District Court. In the Probate and Family Court, the same abuse presumption against custody to the abusive parent applies, and parenting time must protect the child and you. There is no filing fee. The court cannot make you mediate.