Kelly and Ken are divorced and share custody of their three minor children. Kelly maintains a modest, but clean and safe home in a small town, while Ken lives in a one-bedroom apartment. Ken’s building is pretty run-down, and it is located in an area of a large city known for its high crime rates. Kelly is concerned that Ken cannot provide a suitable residence to the parties’ children when they visit with him. First, she is concerned about the children’s safety in Ken’s neighborhood and building; second, she is concerned that the lack of an extra bedroom means the children’s sleeping arrangements are less than ideal. Kelly wishes to petition the court for sole physical custody of the children.

Custody Factors

When addressing issues of custody, the Probate and Family Court judge will look at various factors to determine which parent would be most suitable to have primary physical or legal custody of a child. Making these decisions based on the “best interests of the child standard,” the factors considered are the fitness of the parent, children’s preference, and home environment, among others. In these cases, even if your ex-spouse says your home is unfit, it is ultimately up to a judge to determine what is best for the child.

Suitable Residence Factor

When considering the suitable residence factor in determining child custody, the court may consider whether the living conditions would affect a child’s physical, mental and emotional health. For example, in Ventrice v. Ventrice, the Court reversed a custody award because the judge did not consider the children’s living situation. In that case, the ex-wife’s negligent attitude towards her home environment and safety forced the judge to reverse the initial award. The Court found that the ex-wife’s home was “dirty and unkempt” and she failed to barricade an 80 foot cliff near her home, all things that were not in the best interest of her children.

Additionally, the Massachusetts courts have held that a residence where a child would be taken care of by many different adults would not be in the best interest of the child. In Hunter v. Rose, the Court awarded custody to the parent with a stable job and flexible work hours, rather than to parent who had lived in four different residences in less than one year, with no nearby relatives and five different care providers for daughter. The court believed that this living arrangement would put the child in unfamiliar environment with new caregivers and medical providers while the parent was unavailable, thereby putting in question whether it was a suitable residence. Also, the Court has determined that if the child were to be placed in a stable home environment or in a clean home, this would have a positive effect on a parent’s hopes for physical custody.

On the other side of the coin, the Courts have also held that simply giving a child a high standard of living does not mean custody should be awarded to the parent whose lifestyle allows for a higher standard. For example, in one case, Bak v. Bak, the Court held that stating that material advantage and successful child-rearing do not necessarily go hand in hand. To base custody determination on material advantage would likely punish the less affluent party, the Court stated. In other words, even if your home is nicer than your spouse’s, this in and of itself is not a reason to award custody for you.

However, it is important that the income and resources of a parent are sufficient to provide a proper standard of living and suitable residence for the child. In the hypothetical scenario above, the Court will consider whether it is in the best interests of the children to stay with Ken, in light of the lack of space, safety considerations, and other potential issues with the standard of living that Ken may offer. Of course, the living arrangements will be only one of many different factors that the Court will consider in determining which party should have custody, ultimately basing its decision on what is in the best interests of the child.

If you need more information about issues of child custody or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and our experienced family law attorneys will respond to your phone call or submission promptly.