Overview of custody, parenting time and visitation

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Massachusetts Law Reform Institute

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.

This article has information about how the law addresses child custody and parenting time (visitation). It will help you think through the legal issues you will need to consider 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. The judge will decide about custody and parenting time.

Every case is different. This article has general information only. Talk to a lawyer to learn more about your situation.

Ready to ask for or change a custody or parenting time order? Learn more.

What are the different kinds of custody arrangements?
  • One parent can have physical custody while they share legal custody with the other parent.
  • One parent can have legal custody while they share physical custody with the other parent.
  • Parents can share both legal and physical custody.

Sole physical custody

Sole physical custody means 1 parent is responsible for giving your child a home and taking care of them.

The other parent still gets parenting time. The court can decide the parenting time arrangement is not in your child’s best interest.

Shared physical custody

Shared physical custody means both parents are responsible for giving your child a home. Each parent is responsible for taking care of your child. Shared physical custody often means the child moves between living with each parent, approximately the same amount of time. For example, moving between the parents every other week. But it can take different forms as long as your child has frequent and continued contact with both of you.

Sole legal custody

Sole legal custody means only 1 parent has the right and responsibility to make major decisions about your child's welfare. Major decisions are about things like

  • medical care, including therapy,
  • education, including special education services,
  • discipline, and
  • religion.

Shared legal custody

Shared legal custody means both parents have the right and responsibility to make major decisions about your child's welfare. Parents decide together about major things like

  • medical care, including therapy,
  • education, including special education services,
  • discipline, and
  • religion.
If I haven't been to court, who has custody of the children?

If you have a court order about custody, the order says who has physical and legal custody.

If you don't have a court order, custody depends on if you are married to the other parent.

If parents are married to each other:

Both parents share legal and physical custody of the children unless and until a court orders otherwise.

If you or your spouse file a court case to ask for custody, both of you still share legal custody until the court makes an order.

If 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.

A mother might need to get a court order that says she has custody if her child’s father:

  • tries to keep her from having their child live with her, or
  • tries to keep her from making decisions about their child’s welfare.

For example

A mother may need to show the police a custody order if she needs their help to get her child back from the father.

Which courts make custody, parenting time and visitation decisions?

In Massachusetts, Probate and Family Court judges make most custody and parenting time decisions. Custody and parenting time decisions can be part of a larger case, like a divorce case. Or the case can be only about custody or parenting time. Probate and Family Courts also handle abuse prevention restraining order (209A) cases, and they can make custody and visitation decisions in a 209A restraining order case.

District Courts and the Boston Municipal Court (BMC) also handle 209A cases. They can make a custody order as part of a 209A case, as long as the Probate Court hasn't already made a custody order. But District Courts and the BMC can't make visitation orders as part of a 209A case. Only the Probate and Family Court can make a visitation order in a 209A case.

What's the difference between parenting time and visitation?

The Probate and Family Court always used to call the time children spend with a parent they do not live with "visitation." In July 2015, the Court changed the words they use on their forms to "parenting time." The Court says that parenting time "lets a parent who doesn't have primary physical custody spend time with or visit their child." 

The Court still uses the word “visitation” for supervised visitation and grandparent visitation. The Court has not changed the word “visitation” in 209A restraining order cases. Probate & Family Courts can make visitation orders in these cases, but only if the plaintiff asks for one.

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

Judges must decide custody and parenting time based on “the best interests of the child." The “best interests of the child” law requires courts to focus on the child's needs and not the parent's needs. The law requires courts to give custody to the parent who can meet the child's needs best.

Judges look at many things to see what is in your child's best interest:

  • Will your child have a safe place to live?
  • Will your child be well-fed and clothed?
  • Will your child have enough supervision?
  • Will your child get enough emotional support?
  • Which parent has been taking care of your child (has been the primary caretaker)?
  • Does either parent abuse your child?
  • Does either parent abuse drugs or alcohol?
  • Does either parent expose your child to domestic violence?
If a married parent asks for a temporary custody order, how does the judge decide?

If married parents file for divorce, separate support, or custody, both parents have temporary shared legal custody of their children automatically.

But the court can order temporary sole legal custody to one parent. Then the judge must write down why temporary shared legal custody is not in your child’s best interests.

If the judge decides temporary shared legal custody is not in your child’s best interest, the judge must consider all the important facts including if:

  • any member of the family abuses alcohol or drugs,
  • a parent has deserted your child, and
  • whether the parents have a history of not working together to care for your child.

The judge must consider all other important facts, not just these.

If the parents are not married, how does the judge decide?

The mother has sole legal and physical custody of your child if there is no court order about custody of your child.

If you are not married and you need a custody order, the judge must:

  • preserve the relationship between the child and their primary caretaker as much as possible;
  • take into account who the child lived with during the 6 months before the custody case began;
  • take into account if the parent has a personal and parental relationship with the child; and
  • take into account if the parent has exercised parental responsibility in the child’s best interest, like providing a home, making medical appointments, and getting your child to school on time.

The judge can only order shared custody if the parents have:

  • a custody agreement; or
  • successfully exercised parental responsibility together, like making good decisions jointly, before the case was filed.
What if there is domestic violence?
Parenting time, visitation and child support - what's the connection?


  • who do not pay child support can still have parenting time or visitation.
  • who do not have parenting time or visitation can still be ordered to pay child support.

If a parent

  • pays child support, they do not automatically have parenting time or visitation.
  • has parenting time or visitation, they do not automatically have to pay child support.

If a parent does not

  • pay child support, they can still have parenting time or visitation.
  • have parenting time or visitation, the court can still order them to pay child support.

The amount of parenting time a parent has can affect the amount of child support. 

What is a parenting time schedule?

Often you and the court decide on a parenting time schedule. An example of a parenting time schedule is:

  • 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
  • once a week after school on Wednesdays from 3:00 P.M. until 6:00 P.M.

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

If parents can communicate easily, sometimes you will not need a parenting time schedule. Instead your parenting time can be flexible and you can arrange visits between yourselves. This is called "reasonable parenting time."

If communication between you and the other parent is not good, it is almost always best to have a detailed parenting time schedule so you do not have to be in constant contact to try and agree about the schedule. This is particularly true in cases where there has been domestic abuse.

The law does not say which parent must provide transportation for parenting time or visitation. So, you need to come up with an agreement about transportation. If you cannot agree, the court can make an order that says who is responsible for transportation in your case.

What is supervised visitation?

Sometimes, it may not be safe to leave your child alone with a parent during visitation. In these situations, the court can order supervised visitation. Learn more about supervised visitation.


What if the other parent tries to control my parenting?

Shared legal custody means you have the responsibility to make big decisions about your child together. Big decisions include things like where your child should go to school, medical care including therapy, and the religion your child should be raised in. The smaller day-to-day things like what a child wears to school or what toothpaste they use are generally not big decisions.

If you have shared or sole physical custody, you make the day-to-day decisions when your child is with you. You choose your child's babysitter. And you decide what your child wears, eats, and watches on TV. The other parent makes these decisions when your child is with them and when they have parenting time or visitation.

Even with big decisions, you do not have to do what the other parent wants just because you share legal custody. If the two of you cannot agree on something, either of you can go back to court and ask a judge to decide.

If the other parent goes to court about small decisions like what your child wears, the judge may think that is wasting the court’s time. You can ask the judge to order the other parent to pay you for wasting your time and the court’s time.

If the other parent keeps bothering you about day-to-day decisions, you may need to go to court and ask the judge to change your custody order to sole legal custody.


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