HOW DOES THE JUDGE DECIDE CUSTODY?

Judges must decide custody based on “the best interests of the child." The “best interests of the child” law requires courts to focus on the child's needs and not the parent's needs. The law requires courts to give custody to the parent who can meet the child's needs best.

 

HOW DOES THE JUDGE DECIDE WHAT IS IN THE CHILD’S BEST INTEREST?

Judges look at many things to see what is in the child's best interest, such as:

• Will the child have a safe place to live?

• Will the child be well-fed and clothed?

• Will the child be supervised enough?

• Will the child get enough emotional support?

• Which parent has been taking care of the child?

• Does either parent abuse the child?

• Does either parent abuse drugs or alcohol? 

• Does either parent expose the child to domestic violence?

 

IF THE PARENTS ARE NOT MARRIED, HOW DOES THE JUDGE DECIDE CUSTODY?

The mother has sole legal and physical custody of the child if there is no court order about custody.

If you are not married and need a custody order, the judge must:

·      preserve the relationship between the child and their primary caretaker as much as possible;

·      take into account who the child lived with during the 6 months before the custody case began;

·      take into account if the parent has a personal and parental relationship with the child; and

·      take into account if the parent has exercised parental responsibility in the child’s best interest, like providing a  home, making medical appointments, and getting your child to school on time.

The judge can only order shared custody if the parent have:

·      a custody agreement; or

·      successfully exercised parental responsibility together, like making good decisions jointly,  before the case was filed.

 

IF A PARENT ASKS FOR A TEMPORARY CUSTODY ORDER, HOW DOES THE JUDGE DECIDE?

If the parents are married and file for divorce, separate support, or custody, both parents have temporary shared legal custody of their children automatically.

But the court can order temporary sole legal custody to one parent. Then the judge must write down why temporary shared legal custody is not in your child’s best interests.

If the judge decides temporary shared legal custody is not in the child’s best interest, the judge must consider all the important facts including if:

·      any member of the family abuses alcohol or drugs;

·      a parent has deserted the child; and

·      both parents are willing and able to work together to care for your child

The judge must consider all other important facts, not just these.

 

IF I TELL THE JUDGE ABOUT DOMESTIC VIOLENCE, HOW DO THEY DECIDE CUSTODY?

Protecting children from domestic violence is in their best interest.

If you tell the judge there is domestic violence in your relationship with the other parent, the judge must take it into account. Children suffer when one parent abuses the other.

If the other parent has abused you seriously or repeatedly, the judge should not give the other parent legal or physical custody. If the judge decides to give custody to the abusive parent, the judge must have a very good reason. And the judge must explain the reason in writing.

Under this law, the judge should give you sole legal and physical custody if the other parent seriously or repeatedly abused you, even if the other parent never hit your child.

Important

You do not have to have a 209A Abuse Prevention Order to prove to the judge that the other parent abused you.

 

WHAT IF I HAVE A 209A ABUSE PREVENTION ORDER?

A 209A Abuse Prevention Order by itself does not mean the judge will give you sole custody.

But, a 209A order means the other parent has abused you. It is probably not safe for you to make decisions about your child with someone who has abused you.

Also, an abusive person can use shared custody as a way to control and harass you instead of doing what is best for your child. For example, when your child spends time with the other parent, that parent can make it impossible to plan or follow the parenting time schedule.

If your 209A order says the other parent cannot contact you, the judge has a good reason to give you sole legal custody.  The other parent cannot share in making major decisions about your child if they are not allowed to contact you.

If your 209A order says the other parent cannot have contact with your child, the judge has a good reason to order sole physical custody. A 209A order that says the other parent cannot have contact with your child means the judge decided contact with your child is not safe.

If you are married to the other parent and you have a 209A order, the judge can only order shared custody if they write down why they think shared custody will work.

So, if you have a 209A Protective Order against your spouse, the judge can only make you share legal or physical custody if the judge explains in writing why joint custody is a good decision.

However, a judge in a custody case can change a 209A order to allow contact between the other parent and you or the other parent and your child.

 

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.