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Child Custody and Visitation

 

Overview
Which courts make custody and visitation decisions?
What are the different kinds of custody arrangements in Massachusetts?
If I haven't been to court, who has custody of the children?
What standards or rules do judges use to make custody decisions?
Visitation
Visitation schedules
Reasonable visitation
Transportation during visitation
Supervised visitation
Visitation when one parent has abused the other
How can there be visitation if I go to get a restraining order or if I already have one?
No visitation
Visitation and child support - is there a connection?

Overview

Going through a separation or divorce, or leaving an abusive relationship, is not easy. Your life is disrupted, and if you have children, their lives are disrupted, too. If you have children, the legal, financial, and emotional issues are even more complicated. It is a stressful time for children.

The purpose of this booklet is to give you information about how the law addresses child custody and visitation. It will help you think through the legal issues you will need to consider to resolve questions such as:

Where will the children live?

Whom will they live with?

Who will make important decisions about their lives?

How can the children have contact with the parent they are not living with?

If the parents cannot agree on how to resolve these questions, they can go to court, and the judge will decide about custody and visitation. This booklet will give you information about how judges make these decisions.

When using this booklet it is very important to remember that every case is different. This booklet provide general information only. It is not a substitute for individual legal advice.

If you need advice about how to proceed in your particular situation, especially if both parents do not agree about ending the relationship, or if you are trying to leave an abusive relationship, you should talk to a lawyer.

Which courts make custody and visitation decisions?

Most custody and visitation decisions are made by judges of the Probate & Family Court. Custody and visitation decisions can be part of a larger case, such as a divorce case, or the case can just be about custody or visitation. The kinds of cases that Probate & Family Courts handle which can include custody or visitation issues are "family law" cases, such as divorces, cases involving determination of paternity for children whose parents are not married to each other, child support cases, and legal separations. Probate & Family Courts also handle abuse prevention restraining order (209A) cases, and they can make custody decisions in a 209A restraining order case.

District Courts and the Boston Municipal Court also handle 209A cases, and as part of a 209A abuse prevention order, those courts can make a custody order.

It is important to remember that if a Probate & Family Court has previously made a custody order, when a District Court or the Boston Municipal Court make a 209A order, the order cannot include a custody order.
Also, if the parties in a 209A case are later involved in any case in the Probate & Family Court that involves the children, any custody order in the later Probate & Family Court case "supercedes" (that is, replaces) the prior 209A custody order.

What are the different kinds of custody arrangements in Massachusetts?

There are different types of custody arrangements which are appropriate in different situations. These custody arrangements are defined by law:

Sole legal custody

Sole legal custody means that one parent has 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.

Shared legal custody

Shared legal custody means 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.

Sole physical custody

Sole physical custody means that a child resides with and is under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court decides that such visitation would not be in the best interest of the child.

Shared physical custody

Shared physical custody means that a child has periods of residing with and being under the supervision of each parent, and that physical custody is shared by the parents in such a way that assures the child frequent and continued contact with both parents.

If I haven't been to court, who has custody of the children?

When the parents are married to each other, both parents share legal and physical custody of the children unless and until a court orders otherwise. When the parents are not married to each other, the mother has sole legal and physical custody unless and until a court orders otherwise. This is so even if the father has formally acknowledged paternity.

What standards or rules do judges use to make custody decisions?

In a custody dispute between the child's parents, the court awards custody based on what it decides is "in the best interests of the child." While the best interests of the child standard sounds vague and general, it is nonetheless a child-centered standard, as it requires courts to focus on the child's needs, and not the parent's needs. The law requires courts to make their custody decisions by awarding custody to the parent whom it decides can best meet the child's needs.

The law says that in making an order or judgment concerning 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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral, or emotional health."

If married parents file for divorce or custody, they automatically have temporary shared legal custody of their children, but the court can award temporary sole legal custody to one of the parents if it makes written findings that temporary shared legal custody is not in the child's best interests.

If the court is going to make a decision about whether temporary shared legal custody, it must consider "all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parents have a history of being able and willing to cooperate in matters concerning the child."

Also, if the court intends to award temporary or permanent shared legal custody or temporary or permanent shared physical custody, and there has been or is an abuse prevention restraining order, the court must make written findings to support such a shared custody order.

The law says that in issuing any custody order courts must consider evidence of past or present abuse toward a parent or child as a factor against the best interests of the child.

If the court finds or decides that there has been a pattern of abuse or a serious incident of abuse, then there is a rebuttable presumption that it is not in the best interest of the child to be placed in the sole legal or physical custody, shared legal custody, or shared physical custody with the abusive parent.

This presumption means that if the court decides that a pattern or serious incident of abuse has occurred, then the court must assume that it not in the best interests of the child to be placed in the custody of the abusive parent. Rebuttable means that the abusive parent has the right to rebut (that is, challenge) the presumption.

For children born to unmarried parents, the mother of the child automatically has custody unless a Probate & Family Court orders otherwise. The Probate & Family Court can award shared legal or shared physical custody only if the parents agree or if the court finds that the parents have successfully exercised joint responsibility for the child prior to the beginning of the case and have the ability to plan and communicate with each other concerning the child's best interests.

Visitation

Usually, when one parent has physical custody, the other parent has visitation with the children.

Visitation schedules

Often there is a visitation schedule. An example of a visitation schedule is:

visits every other weekend from Friday at 6:00 P.M. through Sunday at 3:00 P.M. and on alternating weekends on Saturday from 9:00 A.M. until 5:00 P.M. and one mid-week visit after school on Wednesdays from 3:00 P.M. until 6:00 P.M.

This is just an example of a visitation schedule. Your visitation schedule should be based on the needs of the your child and the daily schedule of each parent.

Reasonable visitation

If parents can communicate easily, sometimes they will not need a visitation schedule. Instead the parents will leave visitation flexible and arrange visits between themselves. In visitation agreements and court orders this is referred to as "reasonable visitation."

If communication between the parents is not good, it is almost always best to have a detailed visitation schedule so that the parents won't have to be in constant contact to try and agree of visits each week.

Transportation during visitation

The law does not say which parent must provide transportation during visits.  It does not say which parent must provide transportation to or from visits.

So, the parents need to come up with an agreement about transportation.

If they are not able to agree, the Court can make an order saying who is responsible for transportation in your case.

Supervised visitation

In some situations, it may not be safe for the child to be left alone with a parent during visitation. In these situations, supervised visitation can be arranged. Supervised visitation means that a third party - preferably someone that both parents can agree on and whenever possible someone the child is comfortable with - stays with the visiting parent during visits and makes sure that the child is safe and the visiting parent acts appropriately. Generally, the supervisor can stop the visit if he or she has reason to believe that the child is not safe during the visit.

There are supervised visitation centers and other agencies that provide supervised visitation in Massachusetts.

Supervised visits can be appropriate when the visiting parent has an alcohol or drug abuse problem, or another problem that suggests they could put the child in danger if left alone with the child.

Visitation when one parent has abused the other

If there has been violence between the parents, often it is not safe for the parents to have contact with each other during visitation. Sometimes abusive parents will use visitation as a way to continue to have contact with and control over the other parent.

In some situations, your child may be at risk during visits with a parent who has been abusive to you. In those situations, consider supervised visits.

If you have been a victim of violence by your child's other parent and you have agreed to visitation or the court has ordered it, you can make visitation safer for yourself and the child by considering the options below:

  • Have a clear visitation schedule

When there has been domestic abuse, it is important to have a clear visitation schedule. A clear visitation schedule will make it possible for visits to take place without the parents having to be in constant contact with each other.

A good way to avoid contact with an abusive parent during visitation is to have a third party - that both parties trust and can agree on - pick up and drop off the child before and after visits. If visits are supervised, one parent can drop off the child at the place where the visits are to take place and leave before the other parent arrives.

  • Choose a third party through whom communications about the visits can made

Even with a visitation schedule, there will be times when there must be communications about the visits. It is often best in domestic violence situations that the parents need not have the communications directly. A good way to avoid this is to choose a third party that the parents can each contact if either party needs to change the visitation plans. This allows parents to deal with changes without having to be in direct contact.

  • Ask For Supervised Visits

Often, it is important for the child's safety that visits between a child and a parent who has abused the other parent, be supervised. This is because in many situations, where a parent has abused another parent they have or will abuse the child. Also, in many situations a child has been frightened or traumatized by seeing the abuse of their parent and will feel unsafe in the presence of the abusive parent unless someone else is there.

If your child's other parent will not agree to one or more of these arrangements, and you believe they are necessary for your or your child's safety, you can ask the court to order these things.

If the court has decided that one of the parents is an abusive parent, the court must provide for the safety and well-being of the child and the safety of the abused parent in ordering visitation.

The law says that when making a visitation order for an abusive parent, the court may consider:

  1. ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
  2. ordering visitation supervised by an appropriate third party, visitation center, or agency;
  3. ordering the abusive parent to attend and complete to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
  4. ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
  5. ordering the abusive parent to pay the costs of supervised visitation;
  6. prohibiting overnight visitation;
  7. requiring a bond from the abusive parent for the return and safety of the child;
  8. ordering an investigation or appointment of a guardian ad litem or attorney for the child;
  9. imposing any other condition that is deemed necessary to provide for the safety and well-being of the child, and the safety of the abused parent.

How can there be visitation if I go to get a restraining order or if I already have one?

If you go to get a restraining order, the restraining order can be designed to fit your safety needs and still allow for visitation. For example, if you want the children to visit the other parent or have contact with the other parent, you can ask the judge handling the restraining order case to order that the "no contact" part of the restraining order apply to you but not to the children.

If you have a restraining order against your child's other parent, and you have agreed to, or the court has ordered, visitation between the child and the other parent, YOU CAN HAVE THE RESTRAINING ORDER AND VISITS CAN STILL TAKE PLACE. You can keep all of the protections that you need in the restraining order, and make only those changes in the order needed to allow visitation. You should consult a lawyer or a domestic violence advocate for information on how to do this. If you need to change the restraining order so that visits can take place, either the court that ordered the visitation or the court that granted the restraining order can make those changes in the restraining order. You may need to file a "motion to modify" the restraining order.

When a court handling a restraining order case designs the order so that the abusive parent can have contact with the children, this is NOT the same thing as giving the abusive parent visitation rights. Under the law, courts are not supposed to give visitation rights (that is, legally enforceable visitation rights) to a defendant in a restraining order case. Visitation rights can only be established in a family law case such as a divorce or custody case or a case involving determination of paternity for children whose parents are not married to each other. Visitation rights can only be established in a Probate & Family Court.

No visitation

In some rare situations, it may be in the child's best interest not to have any contact with one of the parents. An example is when the parent has abused that child and the child, even in a supervised visit arrangement, would be traumatized by seeing that parent. Orders denying one parent any visitation are rare but they are made when necessary to protect the child.

Visitation and child support - is there a connection?

As a general rule, child support payments and visitation rights are not connected. A person paying child support is not automatically entitled to visit a child. At the same time, failure to pay child support will not automatically stop visitation rights.

Courts grant visitation rights when a judge determines that visitation is in the best interests of the child. Courts make child support orders by applying the Massachusetts Child Support Guidelines.


Produced by Massachusetts Law Reform Institute
Last updated September 2010


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