Tom and Ted are siblings who are one year apart. Their parents are going through a divorce and have been separated for a year, with Tom and Ted staying primarily at their mother’s home and visiting their father twice per week, with overnight visits at least once per week. The parents in this case will deal with the issue of keeping siblings together. Tom recently overheard something troubling: his father, during a fight with his mother, said that he would ask the Court to split up the boys, “so that at least [he] would have custody of one of the kids.”

Tom is very concerned—he is really close to his brother Ted, and he can’t imagine growing up in separate households. Will Tom’s concerns be weighed during the Court’s considerations regarding which parent should have custody of the children?

Legal and physical custody is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”[1]

In order to resolve issues of custody, the Massachusetts Probate and Family Courts will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. One of those factors is the preference to keep siblings together as a family unit. Although keeping siblings together is just one factor considered by the Court, the preference typically is to try to allow siblings to live together, so as to allow them to develop a healthy familial relationship.

In one case, the judge split up identical twin children, awarding custody of one girl to the mother and the other to the father, after the mother petitioned for a divorce modification. [2] The father appealed, and the Appeals Court found no justification for the judge’s order to separate the twins. In that case, the guardian ad litem noted that the separation was detrimental to the children and that the girls should be reunited. The court held: “the judge failed to make specific or detailed findings based on evidence within the record, apart from the children’s own statements of preference, that separating the twins is in their best interests. In ordering their separation, the judge failed to consider powerful evidence which abundantly and unyieldingly supported their continued placement together. Instead, his articulated reasoning manifests an excessive reliance upon the preferences of two eleven year old children as to which parent each would like to live with.” [3] The Appeals Court vacated the trial judge’s order.

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[1] Mass. Gen. Laws ch. 208 s. 31

[2] Ardizoni v. Raymond, 40 Mass. App. Ct. 734 (1996).

[3] Id., at 741.