Child Custody During Divorce in Massachusetts

Massachusetts allows divorcing parents the option of sole legal custody, shared legal custody, shared physical custody, or shared physical custody of minor children. In determining custody, the court follows the rule of what is best for the child(ren). In deciding the child(ren)'s best interests, the court looks at all relevant facts, including any indication of moral turpitude.

Types of Child Custody - Chapter 209: Section 31

Sole legal custody - one parent has sole 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 - both parents make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.
Sole physical custody - the child(ren) resides with and is under one parent's supervision but has visitation with the non-custodial parent, unless the court determines that such visitation would not be in the best interest of the child(ren).
Shared physical custody - child(ren) resides with and is under the supervision of each parent on a periodic schedule; however, that physical custody may be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

Temporary Custody

Absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; however, the judge may enter an order for temporary sole legal custody for one parent if written findings show that shared custody would not be in the best interest of the child.

In determining whether temporary shared legal custody is in the best interest of the child, the court shall considers all relevant facts including, but not limited to, whether any family member abuses alcohol or drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters regarding the child.

Contested Custody

At trial, if the custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, must submit to the court at trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

At trial, the court will consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order in conjunction with the accepted shared custody implementation plan submitted by either party or by the parties jointly. Alternatively, the court may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent.

An agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

Talk with an Attorney

If you face child custody issues in Massachusetts, the courts determine custody based on the best interest of the child. You and your spouse can share either legal and/or physical custody. Talk with an experienced attorney regarding the issues of your case.

Thinking About Divorce?