Many divorcing couples have been there…arguments get heated, regrettable words are spoken, and one (or both) of the spouses threatens the unthinkable: to “take the kids away” from the other parent.
Legal custody and physical custody of children are 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.”
During the divorce proceedings, it is recognized in Massachusetts that both parents have a right to temporary legal custody. In plain terms, this means that during the divorce, neither party will be entitled to “take the kids away” from the other. (Some important exceptions to note here: the court may order sole temporary custody in the event of abuse, neglect, or emergency conditions.)
In determining custody matters for a final court order on the merits of the case, however, there is no presumption for either shared or sole custody by the courts. If custody is contested by one or both parents, the parties will need to submit to the court their plans regarding the following:
- the child’s education;
- the child’s health care;
- procedures for resolving disputes between the parties with respect to child-raising decisions and duties;
- and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations.
The court will review the custody implementation plans submitted by the parties. The court may accept the plans, modify the plans and issue a joint custody plan, or order a plan for sole custody to one of the parents.
Joint legal custody is not necessarily presumed to be the best choice, either, as the Massachusetts Supreme Judicial Court has noted in the case of Yannas v. Frondistou-Yannas. In that case, a father appealed a judgment which granted primary physical custody of his minor children to the mother, granted joint legal custody to both parents, and authorized the mother to take the children to Greece to live there. The father argued that Massachusetts supports a presumption of joint legal custody, and that joint custody is also required by the U.S. Constitution. The Court disagreed. “There is no apparent reason to believe that joint physical custody is presumptively preferable in all child custody disputes. The matter of physical custody is appropriately left to the judge for determination unfettered by any presumption in favor of joint physical custody. There is also no reason to conclude, as the husband suggests, that joint physical custody is required by constitutional principles of right-to-privacy or due process of law or that a “clear and convincing” standard of proof should be imposed on anyone seeking custody other than joint physical custody.”
It is important to note that, contrary to popular belief, there is no “preferred parent” by the Massachusetts Probate and Family Courts. Absent any misconduct, the rights of the parents are held equal by the courts. A parent is not automatically preferred to receive custody of the children because of his or her gender; in fact, the Massachusetts courts have long done away with the common law presumption that a father was entitled to the care and custody of his children in the event of a divorce. (Under English common law, that was the case. Massachusetts, however, has rebutted this idea as early as 1890. Likewise, mothers are not presumed to become the primary caregiver of a child simply by way of being mothers.
So, if neither sole custody nor shared custody is preferred, then how does the court decide? In order to resolve issues of custody, the court 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. Some examples:
- Has one parent acted as the primary caregiver to the child in the past?
- What are the needs of the child, and in what ways will each parent be able to care for the child and meet those needs?
- Is there a history of abuse by either parent?
- Is there a history of alcohol or substance abuse by either parent?
- Has either party ever deserted the child?
- Do the parents have a history of being able and willing to cooperate in matters related to child-rearing?
If your spouse is threatening to “take away your children,” or you are facing custody matters, it is imperative that you discuss the unique facts involved in your family’s matter with a knowledgeable family law attorney. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
 Mass. Gen. Laws ch. 208 s. 31
 Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985)
 See King v. DeManneville, 5 East. 221, 102 Eng.Rep. 1054 (Kings Bench, 1804).