Determining Physical Custody vs. Legal Child Custody in Massachusetts
When child custody is an issue as a result of divorce, parents will need to make important decisions regarding their children’s legal and physical custody status. Legal custody describes which parent has the right and responsibility to make major decisions regarding the child’s welfare and upbringing. Physical custody concerns where and with which parent a child primarily resides and is typically awarded subject to a parenting schedule that includes parenting time with both parents. Shared physical child custody in Massachusetts allows a child to share time among both parents.
Parents who are unable to agree about how to assign or share legal and physical child custody in Massachusetts need to submit these issues for the Probate and Family Court to decide. These issues tend to be the most highly litigated, and among the most difficult to resolve.
A Podcast on How Child Custody Works in Massachusetts
High-Conflict Child Custody Cases in Massachusetts
While all child custody cases are emotional and charged, when one or both parents have, or are alleged to have, parenting deficits, the analysis as to how to share parenting time and custody become that much more complicated. There are times when a minor child may need to have a voice in her parent’s disputes over child custody. Unfortunately, this situation takes place more often in high-conflict child custody cases, when parents fail to communicate effectively about a child, or when one or both parents are accused of abuse or neglect of a child, or accusations of substance abuse have surfaced that are impacting the ability the safely parent. There are specific professionals that are commonly used in the Probate and Family Court to assist the Court in giving the child a voice in a high conflict custody case. If you need help resolving a child custody case, whether high-conflict or not, the trusted family lawyers at Mason & Nasios will work to support and protect both you and your child’s best interests.
Guardian ad Litem in High-Conflict Child Custody Cases
A Guardian ad Litem (GAL) may provide a voice to a child and represents the child’s best interest in a contested child custody case. In determining what constitutes a child’s best interest, the GAL will substitute her own professional judgment, after a thorough investigation, in order to give the Court information that may not be practical or possible to provide in the course of a trial. For example, a GAL may be appointed to investigate and report to the Court on the issue of parenting time, legal and/or physical custody, and in doing so would interview and/or observe the child in a number of settings. A GAL is often appointed when there are allegations of drug or alcohol abuse, questionable parenting, or physical or emotional abuse of the child. The GAL’s work properly includes review of relevant case documents, as well as interviews with family, the children and collateral persons, such as doctors, social workers, therapists, teachers or daycare providers. At the conclusion of the investigation, the GAL must prepare an unbiased report that includes the facts uncovered together with summaries of interviews. These reports will typically also include specific recommendations relating to parenting time and child custody in Massachusetts, depending upon the specific inquiry the Court has requested. Whereas a GAL report is likely to be included as a trial exhibit, so too, the GAL may be called to testify about the investigation work.
The expense of a GAL is often shared by both parties and can be quite expensive. In rare cases, a Judge can appoint a GAL and request that the Commonwealth of Massachusetts pay for the expert. The GAL is either a mental health expert or an attorney with experience and expertise in high conflict child custody cases. Both are certified and trained in Guardian Ad Litem work. Determinations of a GAL have the potential to carry substantial weight with a Court.
ARC Attorney: Providing a Voice to a Child in Massachusetts
An ARC Attorney provides a voice to a child as well, but has a role substantially different from a GAL. “ARC” is an acronym for Attorneys Representing Children. An ARC attorney is a trained and certified volunteer for the Court who, unlike the GAL, MUST represent to the Court the wishes of the client, the child. At times, should there be any type of real or perceived conflict between the wishes of more than one child in a sibling group, the Court will appoint separate ARC attorneys for different children. The child enjoys the same privileged relationship with his or her ARC attorney as an adult client and his or her attorney. The ARC attorney does not consult with the parents and does not share the confidences of his or her child client with parents.
ARC attorneys are obligated to advocate for a child client’s position during negotiations among counsel and also during Court hearings. ARC counsel are only appointed at the discretion of the Court and are not appointed for every case. An ARC attorney does not investigate or file a report and will not substitute his or her judgment for what he or she feels is in the best interest of the child. For this reason, a child ought to be mature and articulate enough to assist counsel and to state a position.
Rights & Obligations of Unmarried Couples in Massachusetts
A party who seeks a custody order of a child who was born to unmarried parents will do so through an action for Custody-Support-Parenting Time in the Probate and Family Court, in the county where the child and one of the parents resides. Separate, individual complaints are required for each child in a sibling group.
According to G.L. c. 209C, §1, which governs paternity cases in Massachusetts, “Children born to parents who are not married to each other shall be entitled to the same rights and protections as all other children.” This means, among other things, that the Massachusetts Child Support Guidelines (as amended from time to time) are applicable in paternity cases for the purpose of ascertaining the correct amount of child support to be paid in support of the child.
During the course of a paternity case in Massachusetts, the court has the authority to determine legal custody and physical custody of children, as well as make reasonable orders for the payment of child support, maintenance of health insurance and responsibility for uninsured medical expenses.
Prior to any adjudication of paternity, or voluntary acknowledgment of paternity, the mother has custody of a child who is born out of wedlock (G.L. c. 208 §10). Once a Complaint is filed, however, the Court has the discretion to enter appropriate orders of legal and physical custody, in accord with that child’s best interest. The court will consider the child’s recent history, including information about who was the child’s primary caretaker.
Contact the Experienced Child Custody Lawyers at Mason & Nasios in Plymouth County
Determinations of child custody in Massachusetts should be made in accordance with the needs of the child. Whether you need an initial order of child custody, are looking for a modification of an existing order, or would like to pursue a contempt action to seek compliance with an order that isn’t being properly followed, the child custody attorneys at Mason & Nasios have extensive experience managing child custody, visitation, and paternity matters for clients in Southeastern Massachusetts. If you need help with your child custody case, whether it follows from a divorce or paternity matter, contact the skilled child custody attorneys at Mason & Nasios. Schedule a free case evaluation at our offices in Brockton and Falmouth today. We service clients in Barnstable, Bristol, Norfolk and Plymouth Counties, and beyond.