Nancy and Nick are married but separated. Nancy lives in the marital home with the couple’s daughter, Nicole, who is nine years old. Nancy has been Nicole’s primary caretaker since Nicole was born. As such, Nancy believes she is automatically entitled to full legal and physical custody of Nicole. Is Nancy correct?
Not necessarily. Massachusetts does not recognize the presumption that the primary caretaker of a child is entitled to custody.

Generally, the court will consider matters of custody by examining what is in the best interests of the child. The best interests of the child standard includes many factors. The court considers the presence of all relevant factors in its custody orders, and each factor may be weighted differently from the others, depending on the individual facts of the case.

Naturally, one factor for the Court to consider is which parent has served as the primary caregiver of the child(ren). The Court reviews this factor to determine not only which parent has undertaken the bulk of child-rearing responsibilities, but also with which parent the child(ren) formed deeper and stronger bonds. However, being the primary caregiver does not always mean the parent will receive custody. The Court will scrutinize the level of care provided by the caregiver parent, and it will ultimately decide whether continuing that care is in the best interests of the child(ren).

In one case, the Court considered custody of a minor child whose primary caregiver had been the mother, but whose father had extensive visitation with the child and took care of the child well during his time with her. The Court looked at factors such as the lack of structure in the mother’s home and the unwillingness of the mother to share information with the father and involve him in key decisions regarding the child. The judge also noted that on several occasions, the mother engaged in conduct which was not in the child’s best interests, including driving her without a car seat and allowing her to sleep in bed with the mother and her boyfriend. The judge, by contrast, noted that the father engaged the child in educational and stimulating activities, and that he cared for her everyday needs whenever the child was with him. The judge ordered that, despite the mother being the child’s primary caregiver, the father should have custody; the Appeals Court affirmed. [1]

While being the primary caretaker is one factor in custody determinations, it is one of many factors considered by the Courts. If you have questions regarding custody, it is advised that you seek the advice of experienced counsel. Should you wish to schedule a free consultation with our office, you may 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.

[1] In re Custody of Zia, 50 Mass. App. Ct. 237 (2000).