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. Ken lives in a one-bedroom apartment. Ken’s building is pretty run-down. 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. Your ex-spouse may say your home is unfit; however, it is ultimately up to a judge to determine what is best for the child.
Suitable Residence Factor:
You may wonder how the court evaluates the suitable residence factor in determining child custody. It 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. 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”. She also failed to barricade an 80 foot cliff near her home. These were 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 the daughter. The court believed that such a living arrangement put the child in an unfamiliar environment, with the new caregivers and medical providers while the parent was unavailable. That put in question whether it was a suitable residence. The court has also determined that placing a child in a stable home environment or in a clean home has a positive effect on a parent’s hopes for physical custody.
Material advantage does not equal successful child-rearing:
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 Bak v. Bak, the court stated that material advantage and successful child-rearing do not necessarily go hand in hand. The court stated that to base custody determination on material advantage would likely punish the less affluent party. 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 to 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. To determine custody, the court will ultimately base its decision on what is in the best interests of the child.
Contact us:
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? 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.