When people contact me regarding divorce issues, oftentimes the first sentence I hear from them is I’m getting divorced and I want to get custody of my children. I have heard this from both Moms and Dads. Assuming there has not been a history of abuse, Mass. Gen. Law c. 208 sec. 31 says: “In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.” For those of you who don’t know, there are two types of custody, legal and physical. Legal custody is defined as “the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” This post will focus on physical custody. Physical custody is different in that it deals with the day to day supervision and care of the child(ren). In the past, the mother very often got custody of the children because they were the mother and primary caretaker. In recent years however, Massachusetts judges have really begun to embrace parental equality as mandated by statute and there is far less bias toward awarding physical custody to mothers. This could be due to the changing faces on the bench or it could be because more and more fathers are taking active parenting roles and fighting for custody of their children or more likely a combination of the two. Also, keep in mind a large number of cases settle prior to trials before a judge; in those cases, oftentimes, fathers agree to the mother having physical custody (or a majority of the parenting time) with the children.
When the decision is left to the court (as opposed to being agreed to by the parties), there are no mandatory factors listed in the statute, but here are factors that judges take into consideration by virtue of past case law. These factors include: age, sex and stage of development of the child; child’s present state of adjustment in home, school, and community; present and prior interactions of the child with parents, siblings, extended family members or other person who significantly affects the life of the child; the expressed preference of an older child and the wishes and real motivations of potential custodians; the mental and psychosocial health and status of the child and the parents; evidence of each parent’s home environment; a comparison of the economic, physical and emotional environments of the potential custodian including their educational backgrounds, employment circumstances and proposed child care plans; history of domestic violence, alcohol or drug abuse by a parent and its effect on the child; also the comparisons of the capacity of potential custodians to foster growth and development to promote education of the child, to give affection, love, guidance, and moral and spiritual training, and to cooperate with, provide access to and foster affection and respect in the child for other caregivers in the child’s life. In practice, the courts put a lot of weight on disrupting the child’s life as little as possible, because divorce is such a disruptive process in the first place; therefore all other things being equal, if the court needs to decide between one parent who is still living in the child’s school district and another who is not and the child is well adjusted and settled there, it is likely that the court will decide that the child will remain living with the parent lives in a place where the child will not have to switch schools, etc. and uproot their lives even more. For older children, the court also give great weight to the where the child wants to live.
Bottom line: Parents are the only ones that really know what is in the best interest of their child(ren) and YOU (the parents) have options in the process and the outcome of your divorce or custody dispute. Look at your divorce from your child’s perspective and make the best decisions you can for their lives. You want to be able to look back and know that you did your best for your children. That you didn’t let your emotions control you actions and did not use the divorce or custody of your children just to get back at your ex. If you can put your love for your child(ren) before anger at your soon to be ex, you can choose what is best for the kids together. Alternatives to a litigated divorce/custody case, such as mediation and collaborative law can help you do this.
If you would like to learn more about all your alternatives in such matters, please contact me.