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How do I file for custody?

 

How do I ask for a custody order from a court?

You have to start a case in a Probate and Family Court to get an order that gives you custody of your child. You can go to the Probate and Family Court in the county where you live, or to the Probate and Family Court in the county where the other parent lives. You need to file a form called a "complaint."

If you are married to the other parent

You can get court-ordered custody by filing a Complaint for Divorce or a Complaint for Separate Support:

  • File a Complaint for Divorce if you want to divorce your spouse. You can ask for custody of your child at the same time.
  • File a Complaint for Separate Support if you live apart from your spouse or you want to live apart from your spouse. You can ask the court for custody of your child and get support from your spouse.

If you are not married to the other parent

You can get a custody order by filing a Complaint to Establish Paternity or a Complaint for Support - Custody - Visitation:

A Complaint to Establish Paternity asks the court to name the father of the child. You can ask for custody with this complaint. First, the court has to decide that the other parent is in fact the father of your child. After that, the court will decide custody.
File a Complaint to Establish Paternity if:

  1. the father’s name is not on the child’s birth certificate;  and
  2.  there is no court judgment that he is the father.

File a Complaint for Support - Custody - Visitation if:

  1. you and the father signed a Voluntary Acknowledgement of Parentage or
  2. there is a court judgment that he is the father.

How to file the complaint

The steps are the same for filing the different complaints:

  1. Go to the Probate and Family Court.
  2. Go to the clerk's office.
  3. Ask for the complaint form that you want.
  4. Fill out the complaint form and give it back to the court.
  5. You also need to get a "summons" from the clerk. A summons is an official court paper that tells the other parent that the court will have a hearing on your complaint. See a sample summons.
  6. You need to "serve" a copy of the complaint on the other parent. You need to get a sheriff or constable to give the form and the summons to him.
  7. It might be months before you get a final custody order.
  8. If you need a custody order right away, you can file a Motion for Temporary Orders. This is a way to get a temporary order of custody while you wait for your case to work its way through the court system.

Read Probate and Family Court for more information.

Can I get custody under a 209A Protective Order?

If you have survived domestic violence, sometimes you can get a custody order as part of a 209A Protective Order (a restraining order). It depends on whether there is already a custody order in Probate and Family Court.

You can file a Complaint for a 209A Protective Order in a Probate and Family Court, a District Court, or a Boston Municipal Court.

You can get custody from any of these courts as part of a 209A Protective Order.  But if the Probate and Family Court has already ordered custody for your child, no other court can change that order. A judge in a District Court or Boston Municipal Court cannot give you custody as part of a 209A Protective Order if there is a current Probate and Family Court order about custody.

A Probate and Family Court custody order overrides a 209A custody order from one of the other courts.

Only Probate and Family Courts can change existing Probate and Family court custody orders. The Probate and Family Court can also change custody orders from other courts.

Some District Court and Boston Municipal Court judges and clerks tell women that they have to go to Probate and Family Court to get a 209A protective order when children are involved.   You have the right to get a 209A order from a District Court or Boston Municipal Court to protect you from abuse. If you feel it is unsafe to wait to get to the Probate and Family Court, tell the judge or clerk that you need a 209A protective order to keep you safe and that you will go to the Probate and Family Court about custody later.

Read 209A Protective Orders for more information about where and how to get a 209A Protective Order.


Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last updated October 2009


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