How do I get or change a custody or parenting time order?

Also in
Show Endnotes
By
Massachusetts Law Reform Institute
Reviewed
Reviewed
Text

Most of the time, you ask for custody and parenting time by filing a case in a Probate and Family Court. The type of case you file depends on whether or not you are married to the other parent of your child.

To change a custody order, you also need to file in Probate and Family Court. You must show the judge your family’s situation changed in important ways since the order was made. The law calls this kind of change a “significant change of circumstances.”

Not ready to file for an order? Learn more about custody, parenting time, and visitation.

If you need a custody order right away because of domestic violence, you can file a 209A Complaint for Protection from Abuse. If you also need visitation, you must file the 209A in Probate Court and Family Court.

Widgets
How do I ask for custody or parenting time if I am not married to my child's other parent?

If there is no court order naming the father, you ask for custody or parenting time as part of a complaint to establish paternity.

If there is a court order naming the father, or if there has been a voluntary acknowledgement of paternity, unmarried parents can ask for custody or parenting time by filing a complaint for support-custody-parenting time (Ch. 209C).

These cases can take a long time to go through the system.  If you need a custody or parenting time decision right away, you can ask for a temporary order.

Most of the time, your child must have lived in Massachusetts for at least 6 months immediately before you file for custody.

Learn more about how to file these cases on the Probate and Family Court website.

If you need to get a custody order right away, because of domestic violence, file a 209A Complaint for Protection from Abuse and ask for custody in the complaint. See How do I get or change a custody order as part of a 209A?

How do I ask for custody or parenting time if I am married to my child's other parent?

If you have decided to get a divorce, you can ask for custody or parenting time as part of a divorce complaint. 

If you do not want a divorce but want to live separately from your spouse, you can ask for custody, parenting time and support as part of a complaint for separate support.

These cases can take a long time to go through the system. If you need a custody or parenting time decision right away, you can ask for a temporary order.

Most of the time, your child must have lived in Massachusetts for at least 6 months immediately before you file for custody.

Learn more about how to file these cases on the Probate and Family Court website.

If you need to get a custody order right away, because of domestic violence, file a 209A Complaint for Protection from Abuse and ask for custody in the complaint. See How do I get or change a custody order as part of a 209A.

What if I need to change a custody order right away because of domestic violence?

You may be able to get a change a custody order as part of a 209A restraining order. See How do I get or change a custody order as part of a 209A restraining order?

What if I need to change a custody or parenting time order right away?

If you need to change a custody or parenting time order right away, you must show the judge that your child’s health or safety is in danger. And that this dangerous situation happened after the court issued the order you need to change.

If you need to change a custody order right away because of domestic violence, file a 209A Complaint for Protection from Abuse and ask for custody in the complaint. See How do I get or change a custody order as part of a 209A restraining order?

Custody and parenting time orders are either temporary or final. Final orders are also called judgments.

If your order is a "temporary order," you can go back to the Probate and Family Court and file a "motion" asking for a change. Write on the motion form why you and your child need the change.

If your order is a "judgment," you can go back to Probate and Family Court and file a Complaint for Modification. You will need to show that the situation has changed a lot and that your child now needs a different kind of custody order or parenting time arrangement. 

This kind of case can take a long time. If you need to change the order quickly, you can file a Motion for Temporary Orders. You can ask the judge for a temporary custody or parenting time order that makes the changes that you need. You will need to show that there is some kind of emergency that makes it important for your child's situation to change so quickly. 

Learn more about filing these papers on the Probate and Family Court website.

What if I do not need to change the custody or parenting time order right away?

If you need to change a final custody or parenting time order because of significant changes in circumstances, but it is not an emergency, you can file a Complaint for Modification. For example, one parent may have moved since the custody order was issued, so the original custody and parenting time orders might not make sense anymore.

What if both parents agree to change the custody or parenting time orders?

If both parents agree about how the judgment or order should be changed, you may be able to file a “joint petition” with the court. You will need to file your written agreement and some other forms. See the checklist of forms that you need to give the court on the Probate and Family Court website.

You do not need to serve a summons.

You only have to go to a hearing if the judge orders one. If the judge does not order a hearing, they will read the agreement and other papers and make a decision.

Learn more at How to change a judgment or order by agreement.

What else should I think about before starting a case for custody or parenting time?

Only start a case in court if you need a court order. For example, even without a court order, a mother who is not married to her child's father has sole legal and physical custody, unless and until a court orders otherwise. 

Once you start a case, the other parent can bring up other issues that concern them, like custody or child support or domestic violence. If you file a case, the other parent can file their own case to respond to yours.

Even if you are not worried about health or safety, the other parent might be.

If you are not sure if you need to file a case, talk to a lawyer.

Resource Boxes
More Resources
Get help filling out forms
Probate Court: help filling out forms

The Court Service Centers can help you fill out Probate Court forms, by Zoom, phone, or in person.

Some Probate Courts have Lawyer for the Day programs. Contact the court directly to see if your court has one.

Learn more about finding a lawyer.

Was this page helpful?