How Child Custody Works in Massachusetts

Brockton Family Lawyer Deborah Mason Discusses How Child Custody Works in Massachusetts

In this podcast with Divorce Magazine, our partner Deborah Mason discusses how child custody works for divorcing parents in Massachusetts. She also discusses grandparents’ rights.

Transcript of the above podcast

My name is Diana Shepherd, and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. Joining me today is Brockton family law attorney Deborah A. Mason, who is here to discuss how child custody works for divorcing parents as well as fill us in on grandparents’ rights in Massachusetts. A partner in family law firm Mason & Nasios, LLP, Deborah has more than 30 years’ experience providing legal services to those involved in family law disputes. She also worked with the Department of Children and Families (DCF) from 2007 until 2013; this experience combined with her law practice makes her uniquely well-suited to offer insights into this contentious area of family law. Let’s dive right in.

Diana: What are the most common types of custody arrangements in Massachusetts?  

Deborah: Well, Diana, there are two types of custody in Massachusetts: physical custody and legal custody. Physical custody determines where the children live, and the parent with physical custody will make the day-to-day decisions dealing with the children. Examples of the decisions the parent can make may include how the children dress, what they eat, how much TV they can watch, what time they go to bed, and things of that nature.

Joint physical custody means that each parent has caretaking responsibilities for the children while the children are with them. This could be weekend parenting time, overnight, or a true shared parenting arrangement where the children spend more-or-less equal time with each parent.

Unless there is a good reason to award sole custody – for example, one parent is an addict or in prison or is abusive – the Massachusetts courts are leaning towards shared physical custody arrangements. Sometimes it’s a Sunday to Wednesday type arrangement or a Wednesday to Sunday. This could be a week on or week off, they were different aspects of shared custody arrangements.

An experienced family law attorney can suggest creative shared custody arrangements that suit your unique family’s needs. Overall, however, the focus is always on the best interest of the child and what is the least disruptive for the child.

The second type of custody is legal custody. In joint legal custody, both parents must share in the making of very important decisions involving the child, such as medical decisions, religious decisions, and school/living arrangements. If one parent has sole legal custody, he or she can make all of the important decisions involving the children unilaterally. Unless there is an absolute inability to co-parent, the courts will generally order joint legal custody.

Sometimes, an incident may take place that forces the courts to temporarily take joint away from one parent: this could be legal or physical custody, or both. Examples of this may be that one parent abused alcohol and drove with the child, showing really bad judgment.  Sometimes, the parents cannot make a joint medical or educational decision and the Court needs to break a deadlock.

How does a divorcing couple decide whether sole custody or joint custody is best for their family? 

Deborah: A divorcing couple has to take a hard look at what is actually in the best interest of their children rather than what each parent wants to happen. If the children are used to being with the parent that, say, cooks for the family, is the cleaner of the home, takes them to doctors’ appointments, drives them to school, and things like this, and the other spouse is the parent who coaches teams, attends games, does homework and projects with them, then the parents should discuss how they can live separately from one another but keep their respective roles in the lives of their children.

There’s always a solution that works for families to allow both parents to maintain an active role in their children’s lives. In fact, most children can really thrive after a divorce if they’re allowed to see both parents regularly – especially when the children and young and when both parents are able to co-parent cooperatively. So the parents have to put anger and resentment aside and they have to keep the children’s wellbeing is their highest goal.

Of course, this can be very difficult when the parents are embroiled in a very high conflict custody matter. In this situation, they may need to work with a parenting coordinator or some type of neutral party to create and implement a workable parenting plan.

How does the court in Massachusetts decide who gets primary parenting rights if both parents want it?  

Deborah: In a case like this, Diana, the court will look at what the customary role of each parent has been throughout the course of the marriage. If both parents were very involved with the day-to-day care of the children, or if there are quite a few children to take care of, the courts in Massachusetts will generally lean towards a shared physical custody arrangement.

This is also true in a situation in which the family may not have enough money for the former primary caretaker to stay home and not have to go to work after a divorce. That being said, if one parent was the traditional primary caretaker of the children and the other parent was the primary breadwinner of the family, the Court will take that into account. But this does not mean that some form of shared physical custody would be off the table.

Under what circumstances can primary custody be taken away from the parent to whom they were originally assigned and awarded to the other parent?

Deborah: This situation is a sad one, and it would arise if the physical or emotional welfare of the children were put in genuine danger. It could happen if a parent abuses drugs, if a parent were to abuse alcohol, brings an abusive significant other into the household, alienate the other parent or, in the worst-case scenario, cause a situation that brings the Department of Children and Families into the family.

As a former attorney for the Department of Children and Families, I know that this is the scariest and most serious situation for a parent to find themselves in. If the DCF becomes involved with your family, you need an attorney who knows how to navigate the situation with DCF to prevent you from losing custody of your children. At times, this may actually involve an attorney such as one from Mason & Nasios being involved in both the Juvenile Court and the Probate and Family Court.

Here at Mason & Nasios, we are extremely experienced in representing and guiding our clients through these complex situations. In fact, because of my work with DCF, I have been on both sides of the fence. I’ve been on the defense side of Care and Protection of children cases, working routinely on Fair Hearings involving the Department of Children and Families. And then I’ve had the very unusual and unique experience of having worked for the Department. Add to that 30 years of probate and family law experience at this firm and you have attorneys who have very extensive hands-on experience with all aspects of family law as well as years of experience inside the Department of Children and Families.

Is it possible for both parents to have equal rights and decision-making powers regarding their children – whether or not the children split their time equally between both parents’ homes? 

Deborah: Yes, it is possible for both parents to have joint legal and physical custody even if the children do not divide their time equally between both parents’ homes.

Many clients are very concerned with the perception of the other parent “controlling” the decisions that they may make involving the children, and that parent will not allow this to continue after divorce.

Neither parent should get involved in the day-to-day decisions of the party with the physical custody on any given day. For example, one parent should not dictate that one of the children can’t wear a certain color clothing or that the other child shouldn’t play with a certain type of toy while the children are at the other parents home. Absent a safety concern, you should leave the day-to-day decisions to whoever is the custodial parent that day.

Is there any legal reason why fathers should not be awarded custody of their children just as often as mothers? 

Deborah: Not at all. It is just as likely that the Court would award primary custody to the father as to the mother; the days when the mother would get sole or primary physical custody simply because she was the mother are over.

If you were the one who usually scheduled doctor’s appointments, took the children to the appointments, stayed home from work when the children were sick, or gave up a career in order to be the primary caretaker of the children, then you may have a compelling case for primary physical custody of the children.

Nowadays, however, the children’s primary caretaker can be either the mother or the father. Many women have a more lucrative career than their spouse, and their primary role within the family is as breadwinner. No one should assume that your gender is the predictor of whether or not the Probate and Family Court of Massachusetts will award primary physical custody of a child to you. The court looks at the totality of the situation – including what may be in the best interest of your children. Sometimes, the Court may need the assistance of a neutral third party to help them make that decision.  This is where an Attorney Representing Children (we call those ARC attorneys), a Guardian Ad Litem, or a probation officer interview may come into play. These are highly trained, certified professionals who will come and interview the family, they interview the children, and thereafter they would make recommendations to the Court. This could be recommendations on custody, parenting time, or educational or medical decisions.

At Mason and Nasios, one of our secret weapons is our thorough knowledge of these professionals – which means that we know which professional would be the best fit to achieve the goals of a client. Choosing the right neutral takes experience with this kind of case and knowledge of the Judge hearing the case. We have both.

If one parent is concerned about alcohol or drug use by the other parent, can they get the custody arrangement changed?

Deborah: In some cases, yes, they can. A concerned parent would file a Complaint for Modification in the Probate & Family Court, and the complaint would outline their fears. Based upon this very serious allegation of substance abuse, the parent would be able to go to court with an emergency motion for change of custody. The judge could change the custody temporarily and then schedule a full hearing very quickly. The parent who is alleging the substance abuse could request drug or alcohol testing [of the other parent] at the court.

Sometimes, a change in custody would come about as a result of the Department of Children and Families (DCF) becoming involved with the family. This is a worst-case scenario as the courts give a lot of weight to the decisions that DCF makes, as well as their observations. There would be a lot of hoops to jump through and quite a bit of interaction with the DCF and with the Court, so a client would need an attorney with plenty of experience with this kind of case to successfully guide them through this very complicated process. Your attorney’s goal should be to end any involvement that the Department has with your family – whether that is to prepare for and fight a supported decision of neglect or abuse at a Fair Hearing, or to attend meetings with DCF social workers at your home or at their office. We would be able to assist the client in obtaining records stating what that parent is being accused of, and thereafter we would be able to assist them in cooperating – or not cooperating – with the DCF to protect that client’s children.

Our firm is unique in that we have decades of experience dealing with the DCF and being able to apply their regulations and policies properly to all issues that are in front of the Probate Court. At Mason & Nasios, our goal is to put our clients’ minds at ease, protect them while they go through this stressful process, and ultimately to obtain a great and successful resolution for them in the Probate and Family Court.

Do parents have to resolve their custody issues before finalizing their divorce in Massachusetts? 

Deborah: Yes, they do. Parents must resolve all issues – including custody – before finalizing their divorce in Massachusetts. The full Separation Agreement ( if the matter was settled by agreement)  would set forth the resolution of all issues. If there is an issue that is left outside the agreement or a promise that is not in the agreement, it is deemed to be waived. So, yes, the Judge would have to look closely at anything to do with the children as well as tax issues, property division, and other divorce-related issues.

Deborah, let’s talk about grandparents’ rights for a moment. Under what conditions will a judge award custody to a grandparent in Massachusetts? 

Deborah: This is a tricky question. Because of the extent of the opioid epidemic in Massachusetts, there are many more grandparents taking responsibility for their grandchildren than there used to be. Some grandparents are taking guardianship of the children in an effort to prevent the Department of Children and Families from taking custody of the kids. Some grandparents are being awarded care of the children as what are called kinship foster placements by the Department, and some grandparents are outright adopting their own grandchildren. If the grandparents had traditionally been involved and bonded with the children before the issue, a court is much more likely to give the grandparents care and custody. Regarding financial support for these children, the government can award stipends that to grandparents who assume custody of their grandchildren. Grandparents also have the right to seek child support from parents of children who are placed into their guardianship.

When a grandparent or another third party wants to have custody or visitation rights, do they have to sue the children’s biological parents to obtain those rights?

Deborah: Grandparents have the right to file a petition for grandparent [custody or] visitation, but it is a very difficult suit to win. The court must look at the best interests of the child – but then it goes one step further and the court must consider whether the lack of a relationship with the grandparents will actually cause harm to the child. There must be a proven bond between the child and the grandparents, there has to be a lot of interaction between grandparents and their grandchildren, and proof of the harm to the grandchildren if the relationship does not continue. The courts do not want to step on the rights of parents to make the decision as to whether or not their parents should have time with the child. The courts want parents to have the ability to make decisions regarding their own children.

If the biological parents have lost custody of their children to a third party because of an addiction, incarceration, mental illness, etc., what do they need to do to regain custody?

Deborah: A situation like this would be as a result, most likely, of a Care and Protection action filed with the Juvenile Court by the Department of Children and Families. The parent would have to get into treatment, meet with the department monthly, go through the investigation and the assessment, then attend court and prove what they are doing to stay clean and sober. Unfortunately, the decision can be quite subjective depending on which DCF office you’re dealing with. It is even more complicated when the DCF case ends up putting a parent into probate as well as the juvenile court. The parent who has lost custody will have to jump through a lot of hoops, and they may have to make multiple court appearances – but if they have a demonstrable commitment to remaining clean and sober, an experienced attorney in this field can guide them past the pitfalls to a very favorable outcome.


Diana: My guest today has been family lawyer Deborah A. Mason, co-founder of Mason & Nasios, LLP in Brockton, Massachusetts. She focuses her practice on divorce, child custody and support, visitation/parenting plans, and child abuse/DCF issues. To learn more about how Deborah Mason and her team can help you with your child custody issues, go to www.masonnasiosllp.com

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