Going through a child custody and visitation procedure can be contentious and confusing. Here are explanations of custody and visitation laws.
Child Custody Through a Court Order
There are two types of custody – legal and physical. Legal custody gives you the right to make important decisions for your child’s future, such as medical care, education, and religion. Legal custody can be sole (one parent) or joint, often called “shared” custody (both parents). Physical custody is the responsibility to care for your child on a daily basis, and can be sole or joint.
If you and/or your spouse file for custody, you can create your own agreement outlining how your plans for your child’s future, which a judge will look over and possibly turn into a court order, or, if you cannot agree, you will go through one or more hearings for the court to make a decision. The judge will base the final decision on your child’s best interest and will look at factors such as living conditions, which parent was the primary caretaker, the relationship of each parent to the child, and past or present abuse. When granting custody to one parent, the judge will usually try to keep the child’s standard of living and relationship with the primary caretaker the same. You can ask the judge to modify a court order if the situation has significantly changed and if the modification is in the best interest of your child.
It is possible that a judge will grant sole or joint custody to an abusive parent, but the judge must have a good reason and must provide a written explanation within 90 days of the decision. Generally, if there are patterns of abuse or a serious incident involved, the court will decide it is in the child’s best interest to grant custody to the non-abusive parent.
Child Custody Without a Court Order
In Massachusetts, you and your spouse share custody if you are married and living together. If you were never married, the mother has custody, and the father must establish paternity if he wishes to file for legal or physical custody. The court will only give shared custody to both of you if you can communicate well and plan together about your child’s upbringing.
Visitation
Visitation and custody are decided separately, so if one parent is granted sole custody, the second parent may still receive visitation rights. The judge may decide visits are only to take place at certain times, at certain locations, or with supervision (which is often temporary). If the court grants visitation rights to an abusive parent, a judge may put provisions in place, for example, supervision, safe locations for the exchange of the child, alcohol or drug treatment programs, or whatever is necessary to ensure the safety of everyone involved. The court can also decide to give visitation rights to a “de facto” parent, someone who has played a key part in the child’s life and who has the child’s best interest at heart (for example, the same-sex partner of the mother, or a dedicated aunt). Visitation rights should be strictly followed as they are a court order, and they do not automatically give you the right to make decisions or the right to physical custody.
Call us today to discuss your situation with our attorneys.