Physical and Legal Custody
In Massachusetts there are two forms of child custody: physical custody and legal custody. When a parent has physical custody that parent assumes the role of primary caretaker and he/she exercises the routine day-to-day decision making. In other words, physical custody refers to where the child primarily lives. Whereas legal custody pertains to parental decisions regarding the child's welfare in matters of education, medical care, emotional, moral and religious development. Within each form of child custody parents will have either “sole” or “joint/shared” custody. Typically, one parent has sole physical custody and both parents share legal custody. In this arrangement the child will live with one parent who will assume the day-to-day care and decision making for the child (sole physical custody) and both parents will make decisions together on important issues in the child's life (joint legal custody). Where one parent retains sole physical custody, the non-custodial parent will usually have reasonable visitation with the child.
Married and Unmarried Parents – Who has custody?
Married couples share an equal claim to the custody of their children. Absent a court order, married parents share physical and legal custody when separated and it should not be assumed that the mother automatically retains custody of the children. However, the mother does retain sole physical and legal custody over a child born to unmarried parents. Thus, until a parent is legally acknowledged as the father there is no legal requirement for the mother to allow visits. Although absent a genuine concern for the welfare of the child, the denial of visits will reflect poorly on the mother.
Best Interests Standard
To determine which parent should be given primary physical custody of a minor child the court will decide which parent will promote the child's best interests. In so doing, the court has discretion to consider a wide range of evidence. However, often the court will award custody to the parent who is the child's primary caretaker. If there are mitigating factors that would put the child at risk if left with the primary caretaker, such as substance abuse, DCF involvement, domestic abuse, or mental illness then the court may place the child with the other parent. Often when it is not clear who is the primary caretaker or if there are concerns that the child is at risk, the court will likely appoint a guardian ad litem or family services officer to investigate.
Please call Lambert Legal for a free no-obligation consultation. We are experienced Massachusetts custody lawyers and we look forward to speaking with you about your custody case.