In any family law case involving minor children, the court must determine which parent the children will reside with, how major decisions affecting the children will be made made, and the frequency, duration and conditions dictating the non-custodial parent’s parenting time. Although the precise legal standards can differ for legal proceedings involving non-parents seeking custody (such as a petition for guardianships or grandparent vitiation), in the cases involving biological parents, a judge generally has wide discretion to enter orders pertaining to custody and parenting time consistent with the “best interests of the child”.
The primary statutes controlling custody determinations in Massachusetts fall under the divorce statute, the law affecting children of unmarried parents, and the Massachusetts guardianship statute. In cases involving biological parents, the law recognizes two forms of custody: legal custody and physical custody.
Under the Massachusetts divorce statute, shared legal custody is defined as the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” Further, the divorce statute provides that in entering a temporary order in a divorce case, married parents shall have shared legal custody of a child unless the judge finds that shared legal custody is not in the best interests of the children. In contrast, the Massachusetts statute affecting children of unmarried parents provides that a court shall only enter an order of shared legal custody if “the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.”
Massachusetts law is ambiguous regarding what specific rights are embodied in “legal custody”. While the definition of “legal custody” purports to guarantee the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare”, it is unclear what this really means in practice. Although many judges seem to associate legal custody with the right to access a child’s medical and educational records, the statutory definition of legal custody, as well as other statutes, suggests that an order of sole legal custody to one parent shall not prevent the other parent “shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child” unless there is a specific threat to the child’s best interests.
In the context of a child’s religious upbringing, legal custody is often overshadowed by first amendment issues arising out of each parent’s freedom to practice religion. In the medical context, legal custody is easily confused with issues relating to a minor’s capacity to consent to medical treatment, and confidentiality issues, such as the confidentiality of a child’s communications with his or her therapist. Meanwhile, educational issues are routinely dictated by physical custody, where the choice of a child’s public schooling is typically driven by the location of the primary custodian’s residence.
The Massachusetts appellate court cases focusing on legal custody have generally focused on defining when shared legal custody is inappropriate; namely, when parents demonstrate an inability to communicate regarding child-related issues. The cases tell us virtually nothing about what specific rights are embodied in legal custody. The closest the appellate courts have come is probably O’Connell v. Greenwood, in which the Appeals Court held:
As the father asserts for the first time here, there may be instances where one parent’s actions do not violate specific components of an order for shared legal or physical custody and yet, in the aggregate, so fully and completely seek to exclude the other parent from the child’s life that they violate the very premise on which the order is based. We do not resolve the issue because it was not raised in the trial court and it was not the theory on which the case was pleaded or tried.
Nevertheless, we make two observations. First, a court order for parents to share custody with one another provides both of them with clear notice that they have “equal rights and responsibilities regarding major decisions” in the child’s life. A parent whose actions flout this clear and unequivocal right is not immune from a court’s equitable powers simply because each particular act is not among those listed in the custody order. Where one joint custodian has clearly undertaken a campaign to exclude the other from making major decisions in the child’s life, a contempt judgment may conceivably be warranted.
The Massachusetts divorce statute defines physical custody as follows:
“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
The Massachusetts Child Support Guidelines offer additional insight into “sole” or “primary” physical custody entails, where they provide “[t]hese Guidelines based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.”
Unlike some states, there is no presumption in favor of shared physical custody in Massachusetts. Indeed, for unmarried parents, the Massachusetts statute provides that a court shall only enter an order of shared physical custody if “the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.”
Probate and Family Court judges have broad discretion to fashion physical custody and parenting time orders on a case by case basis. Generally, the single biggest consideration in making orders relative parenting time is the roles each parent played in the child’s life prior to their separation. The parent who was the child’s primary caregiver prior to the commencement of the legal action is generally favored by the judge once the case commences, however, it is not unusual for judges to modify the parenting schedule in response to events in the parties’ and/or children’s lives.
When should you hire an attorney in a custody dispute?
If you spend a day watching self-represented individuals argue custody and visitation issues in Probate and Family Court, a certain pattern emerges: one parent accuses the other of misbehaving around the children, only to have the accused parent deny the allegation and accuse the first parent of an equally serious misdeed. A judge’s day is full of such ambiguous “he-said/she-said” scenarios. In a typical custody and visitation dispute that does not involve allegations of physical or sexual abuse, the attorney must break out of the “he-said/she-said” construct by developing and delivering clear, persuasive evidence of a parent’s conduct to a judge. A skilled family law attorney understands the tools and techniques available for developing evidence, the specific legal standards that dictate custody cases, and the idiosyncratic “unspoken rules” that make a particular argument more or less likely to succeed when presented to a judge.
Meanwhile, in custody cases involving allegations of physical or sexual abuse against a parent, a competent attorney is essential to navigate the complex intersection between criminal proceedings, Department of Children and Families investigations, and the Probate and Family Court. Unlike financial issues, which can be preserved on paper and often revisited at a later date, issues relating to custody and visitation can be extremely time-sensitive. Knowing how and when to address immediate child-related issues and events is crucial. If a serious incident has occurred involving your child and the other parent, you may not have much time. Consult an attorney immediately
In Massachusetts, child support the amount and duration of child support is dictated by the Massachusetts Child Support Guidelines. In most cases, a parent who is granted primary physical custody of a child will be entitled to child support from the non-custodial parent. Massachusetts last revised its Child Support Guidelines on August 1, 2013. Most observers agree that the most significant changes in the 2013 Guidelines involved a reduction in the amount paid to a custodial parent under a basic order, as well as reductions in support orders for non-custodial parents who have parenting time more than 33% of the time.
Under the previous Guidelines, a custodial parent with significant income was arguably “penalized” for working – their weekly child support would be substantially reduced in proportion to his or her own earnings. The 2009 Guidelines place a much greater emphasis on the non-custodial parent’s income. As a result, a custodial parent who sees his or her gross annual income rise or fall by more than $10,000 might only see a $5 or $10 per week change in his or her child support under the Guidelines.
When should you hire an attorney in a child support action?
Experienced family attorneys are typically cautious when discussing whether they can be helpful to an individual in a typical child support proceeding. The starting point, in every case, is to acknowledge that judges give great weight to the Massachusetts Child Support Guidelines, and only deviate from the Guidelines in certain circumstances. That said, factual scenarios do exist that make a judge less likely to follow a “Guideline order” in certain cases, and the Guidelines themselves contain numerous opportunities for offsets and increases in consideration of factors such as the cost of medical insurance, extraordinary travel expenses, and/or the existence of a separate alimony order.
Moreover, when one parent owns his or her own business, has a second job, or is unemployed or underemployed, it raises the question: how should the court calculate the parent’s income? A qualified attorney is often necessary to answer these questions.
The Massachusetts divorce statute provides that a Probate and Family Court “may assign to either husband or wife all or any” property owned by either party. As such, all property acquired by either party at any time, including property acquired before the marriage, is subject to division as part of a divorce. However, there are numerous considerations that judges consider in entering a final division of assets. These include:
[T]he length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony … [as well as] the present and future needs of the dependent children of the marriage [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.
Although it is widely acknowledged that the length of the marriage is often the most important element in a court’s asset division, each of the factors above can have a major influence on which assets a judge elects to assign to each party as part of a divorce.
When should you hire an attorney in connection with the division of assets?
Complicating factors in an asset division that frequently arise include hard-to-value assets, significant marital debt, real estate and title related issues, and hidden and/or complex assets. If your divorce involves any of these factors, or if you are uncertain about how you or your spouse’s assets should be valued and divided, you should consult a qualified family law attorney.
In 2011, the Massachusetts Alimony Reform Act became law. The Act changed almost every element of alimony in Massachusetts, including:
- Created separate and clearly defined alimony categories;
- Set limits on duration of alimony orders;
- Allowed for the termination of alimony at retirement;
- Allowed judges to change alimony orders when ex-spouses cohabitate with new partners;
- Created new factors for judges to consider in creating alimony orders; and
- Allowed judges to exercise more discretion in alimony cases based upon individual circumstances.
When should you hire an attorney in connection with the alimony?
Although the Massachusetts alimony statute provides a basic formula for alimony, there are numerous factors that require the assistance of an attorney in an alimony case. These include the interplay between alimony and child support, each party’s earning capacity and work history, the availability of assets for division, and tax considerations. In most instances, the complexities surrounding alimony in Massachusetts require parties to seek assistance from a qualified probate and family attorney.