Legal Custody vs. Physical Custody in Massachusetts: What’s the Difference? 2024

Understanding the difference between legal custody vs. physical custody in Massachusetts is critical to winning a child custody case. If you are a parent preparing to go through a custody battle, a parent going through a divorce, or need help modifying your current custody agreement, you should speak with an experienced child custody lawyer.

Legal Custody

Legal custody refers to the authority to make major life decisions for the child. This could be schooling, health care, religious activities, extracurricular activities, and anything else related to the child’s life.

Legal custody could be sole or shared between parents. While parents are married, they are both involved in the decision-making for the child. When they divorce, the courts usually prefer to maintain this joint decision-making status. This preference goes back to the understanding that fit parents have a fundamental right to make decisions on how their child is raised. It’s up to the divorcing parents to create a custody plan and present it before the court for approval.

Sole custody can be awarded if one parent is deemed to be unfit. This could be because there is a history of abuse, domestic violence, mental illness, assault, or abandonment. Sole custody may also be awarded in cases where it’s clear parents will not come to a resolution during their divorce. Sometimes, joint custody could lead to a never-ending battleground between parents, with the child caught in the middle.

Physical Custody

Physical custody refers to the child’s physical living location. A parent with physical custody will provide the child with the basic needs, including food, water, and shelter. This can also be sole or shared between parents.

Shared custody means the child equitably splits their time with each parent. The child has two homes and is engaged/involved with both parents. Many times, the court will presume that shared physical custody is the better option for the child, and it’s up to the parent to convince them otherwise. Shared custody is not always split 50-50. For example, some arrangements allow the child to spend the weekdays with one parent and the weekend with the other.

Sole custody can be appropriate if the parents live far apart from each other, making it difficult for the child to travel back and forth, or if one parent has instability in their home, hindering their ability to provide for the child. Even when sole custody is awarded, courts will typically try to ensure the other parent has necessary continuing contact with the child. In practice, the other parent often has the child for summer vacations, long school breaks, etc.

Parenting Plan

Parents can create a parenting plan that outlines how they will ensure the child’s needs are met. The plan can be presented before the court for approval, and items such as custody and visitation could be outlined within it. An experienced child custody lawyer can help parents create a valid plan that will be accepted by the court.

FAQs

Q: What Does Shared Legal Custody Mean in Massachusetts?

A: Shared legal custody in Massachusetts means that both parents are involved in the decision-making on the child’s behalf. They both share the responsibility of making major life decisions such as the child’s education, religion, and health care. There are pros and cons to this form of custody. Pros include the promotion of continuity and collaboration between parents. Cons could be difficulties in communication, increased conflict, or logistical challenges. An experienced child custody lawyer can be helpful in navigating these challenges.

Q: Who Has Legal Custody of a Child in Massachusetts?

A: Both parents share legal custody of a child in Massachusetts, provided the child was born to wedded partners, and there is no outstanding court order stating otherwise. If you file for sole custody of the child, you and your spouse will maintain legal custody until the court issues an order. If parents are not married, the mother has sole legal and physical custody unless a court order says otherwise. This is true even if the father has formally acknowledged paternity.

Q: How to Get Sole Legal Custody in Massachusetts?

A: To get sole legal custody in Massachusetts, you must first determine if you are eligible. If you were married to your spouse at the time of the child’s birth, you have assumed custody. If you were never married, you must establish paternity first before the father can ask for child custody. The mother always has custody, whether married or not. Also, the child must have lived in Massachusetts for at least six months before you can file for custody.

Q: What Type of Custody Is Ideal for a Child?

A: The type of custody that’s ideal for a child depends on the circumstances of the living situation and needs of the child. A custody arrangement that works for one child may not work for another. There is one form of custody that courts generally like to award, and it’s joint legal custody. This allows each parent the responsibility to make decisions regarding the child’s life. Allowing both parents a say in the child’s life is ideal but may not be available in every situation.

Q: What Can Make a Parent Unfit in Massachusetts?

A: Any history of drug abuse, domestic violence, mental disability, sex crimes, or other criminal activity could force a court to deem a parent unfit. If the parent demonstrates an unwillingness to be in the child’s life or avoids parental responsibilities, that could make them unfit. In some cases, a court could elect an evaluator to visit the home and assess the living situation. Close friends, family members, and other witnesses could provide testimonies influencing the court’s decision.

A Legal Team Ready to Help

Child custody is a complex legal topic. Each state has its own unique laws surrounding it, and Massachusetts is no different. If you are a Massachusetts resident and need help better understanding custody laws, you should speak with an experienced attorney.

At Farias Family Law, P.C., you can lean on our qualified legal team for help. We have a demonstrated history of helping clients understand their rights under Massachusetts child custody laws. We are committed to exploring every legal avenue available to you. With our experienced support, you can trust that your rights will be protected and that you will get the solution you deserve. Contact us today at one of our offices to speak with a member of our team.