How to show the judge it is in your child's best interest for you to have custody or parenting time

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

Judges decide which parent should have custody based on your “child’s best interest.” They give custody to the parent who meets your child’s needs best.

If you want the judge to give custody to you, you must show them it is in your child’s best interest for you to have custody. You show the judge by presenting evidence.

Similarly, a judge makes parenting time decisions based on what is in the child's best interests.

This "how to" covers common ways that you can show a judge that custody and parenting time is in a child's best interest. 

Widgets
How do I use affidavits to support my motion for custody?

When you file a motion for custody, you can also file an "affidavit.”

An affidavit is a signed statement. You write in your affidavit what you have seen and what you have heard. Give examples. When you sign it, you swear that everything in the affidavit is true to the best of your knowledge.

Your affidavit is one way to show the judge why you should have custody. Describe how you meet your child’s needs, like providing your child with:

  • a safe and comfortable place to live,
  • medical care,
  • proper food and clothing,
  • the supervision they need,
  • help meeting their educational needs,
  • daily care, and 
  • emotional support.

Sometimes both parents have done some of these things. But you may have to argue you have done most of these things. This is sometimes called being the “primary caretaker.”

If the other parent harms your child in any way or puts your child at risk, make sure you can give the judge specific examples of when the other parent:

  • abused you or your child,
  • abused drugs or alcohol,
  • exposed your child to domestic violence.

You can also tell the judge in an affidavit if the other parent has not had any not had any contact with the child for a long time.

You can use affidavits from more than one person.

In a motion hearing, judges usually do not hear from witnesses, so it is useful to get affidavits from other people to show the judge why you should have custody.

Note

Tell people who give you their affidavits, they may also need to come to court to testify.

How do I testify it is in my child’s best interest for me to have custody?

When you “testify” in court you talk about your own experiences and you answer questions. When you testify you swear you are telling the truth.

You will have to testify to the judge about why you should have custody. Describe how you meet your child’s needs, like providing your child with:

  • a safe and comfortable place to live,
  • medical care,
  • proper food and clothing,
  • the supervision they need,
  • help meeting their educational needs,
  • daily care, and
  • emotional support.

Sometimes both parents have done some of these things. But you may have to argue you have done most of these things. This is sometimes called being the “primary caretaker.”

If the other parent harms your child in any way or puts your child at risk, make sure you can give the judge specific examples when the other parent:

  • abused you or your child,
  • abused drugs or alcohol,
  • exposed your child to domestic violence.

You can also tell the judge if the other parent has not had any not had any contact with the child for a long time.

Collect any records and documents that show you should have custody and bring them to court with you.

How do I present witnesses to testify that it is in my child's best interest for me to have custody?

Your “witnesses” are people who can testify about your relationship with your child and the way you care for your child. They describe how you meet your child’s needs.

They know you and your child. When they “testify” in court they talk about the things they know about you and your child. And they answer questions. When they testify they swear they are telling the truth.

Some people you can ask to be witnesses are:

  • Teachers,
  • Child care workers,
  • Therapists,
  • Doctors, nurses, medical assistants,
  • Social workers,
  • Police,
  • Family members,
  • Neighbors and friends.

Witnesses can testify about how you provide your child with:

  • a safe and comfortable place to live,
  • medical care,
  • proper food and clothing,
  • the supervision they need,
  • help meeting their educational needs,
  • daily care, and
  • emotional support.

If the other parent harms your child or puts your child at risk and a witness knows about it, they can testify about:

  • the other parent abusing you or your child.
  • the other parent abusing drugs or alcohol.
  • the other parent exposing your child to domestic violence.
  • the effects of the other parent exposing your child to domestic violence.

The witness can also tell the court if the other parent has not done things to take care of your child, like coming to school conferences, events and doctor's visits.

Talk with possible witnesses to see if they have evidence that shows you should have custody.

  • Ask them to come to court with you to testify.
  • If they do not want to go to court, you can send them a "subpoena." If you subpoena them, they must go to court.

Important

You need to know what your witness will say when they testify. Talk to them before you subpoena them.

What documents and records can I submit to show it is in my child's best interest for me to have custody?

You may be able to give the judge records or documents that show you should have custody. They can be:

  • Medical records,
  • A therapist’s or social worker’s records,
  • Police reports,
  • School records,
  • Your child care provider’s records,
  • Supervised visitation center records, or
  • Department of Children and Families records.

These are examples of records that other people or organizations keep. If you want the judge to see these records, you may need to subpoena the person or organization. In the subpoena, tell them exactly which records they should bring with them to court. 

Important

Know what is in the records before you subpoena them to court.

Read about more about subpoenas.

How do I ask the judge to order an investigation to show it is in my child's best interest for me to have custody?

Guardian ad Litem (GAL) and Probation Officer investigations

The judge can appoint a “Guardian ad Litem” (GAL) or Probation Officer (Family Service Officer) to investigate your case.

GALs are social workers, lawyers, or other people who have been approved to investigate custody cases. Probation Officers are court employees who investigate custody cases when the judge orders them to.

GALs and Probation Officers should not make up their minds about who should have custody before they start work on your case.

When GALs and Probation Officers investigate, they make a written report to the judge. The report has the facts they found from their investigation. They might also recommend who should have custody. You can require that they testify in person.

If the judge appoints a GAL or Probation Officer, cooperate. Give them names and contact information of the people they ask for. Also give them names and contact information of people who think giving custody to you is in your child’s best interest.

Asking for a GAL or Probation Officer investigation

You can ask the judge to appoint a GAL or a Probation Officer to help decide which parent should have custody. File a motion that asks the judge to appoint a GAL or order the Probation Department to investigate. If the other parent asks for custody, you can respond by asking the judge to appoint a GAL.

The GAL or Probation Officer talks to both parents. They also talk to other people who know your child, like relatives, teachers, therapists, medical providers, and day care providers. And the GAL or Probation Officer may also talk with your child. They report to the judge in writing. If there is a trial, they should testify.

You may not agree with the GAL or Probation Officer. They may think that the other parent should have custody. Before you ask for a GAL or Probation Officer to investigate your case and report to the judge, think about how strong your case is. Judges do not always agree with the GAL or Probation Officer, but they pay a lot of attention to their report.

Cost of a GAL or Probate Officer investigation

GAL investigations and evaluations do not have a fixed cost. The cost is different from case to case. It can be $3,000 to $20,000. It could be even more.

If the judge appoints a Probation Officer to investigate, the state pays the cost.

If the judge appoints a GAL, the judge decides who will pay for the investigation. Sometimes parents split the costs. Other times one parent pays the entire cost. If you and the other parent cannot afford to pay for a GAL investigation, ask the judge to order the state to pay for it.

The parent who pays for the investigation does not get to control it. An investigator's job is to be fair, get information, and recommend what is best for your child.

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?