Massachusetts Divorce Law...

Massachusetts Law - Who Gets Custody?

In awarding custody, the court will attempt to determine what is in the best interest of the child.

It may award custody to either parent, both parents, or neither parent.

However, in Massachusetts, there is a strong tendency to award sole physical custody to one parent and legal custody to both parents.

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The court will also look for signs of spousal abuse or child abuse and will weigh that in awarding custody. If there is sustained abuse or even a single serious incident of abuse, the court will presume that the abusing parent should not have sole custody, shared physical custody, or shared legal custody.

It there is an abusive situation, the court may order visitation, but it will consider:

• Ordering the exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
• Ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
• Ordering the abusive parent to pay the costs of supervised visitation;
• Prohibiting overnight visitation;
• Requiring a bond from the abusive parent for the return and safety of the child.
• Ordering an investigation or the appointment of a guardian ad litem for the child.

In considering shared custody, the court will consider whether the parents can work together in respect to the children.

If the parties desire shared custody, they submit a plan to the court, including details of key decisions, and a method for resolving future disputes.

Section 28, 31, 31A.

Cases:

Vaughn (1996) 664 NE2d 434 (The court stated that a judge should not award physical custody to a husband who abused his wife, at least not without strong offsetting factors.)

Zatsky (1994) 627 NE2d 474 (After the marriage fell apart, but before divorce, the wife began to see the man who became her second husband. She took vacations with him and allowed him to share her bedroom when he stayed overnight at the former marital home. Nonetheless, the court awarded the wife physical and legal custody of the two minor children. The court found that the wife had been a nurturing mother and had been able to subordinate her emotional needs to those of the children.)

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