Massachusetts Legal Custody, Sole Versus Shared
The issue of custody and visitation in divorce and other family law cases can be heart wrenching. While financial issues tend to complicate cases with higher incomes and larger assets, facts and circumstances relevant to child custody determinations can be complex any divorce for paternity case.
In Massachusetts, when we say child custody, we are actually talking about two different things. Here we are talking about legal custody. Legal custody has to do with major decision-making for a minor. Legal custody is nearly always shared between the parties. In fact, for a probate and Family Court judge to issue an order of sole custody, that is giving major decision-making exclusively to one parent, the judge would need to find that shared legal custody would not be in the child’s best interests.
The issue of sole legal custody ordinarily arises in cases in two distinct scenarios. The first scenario is when there is significant misconduct by one parent. To rise to the level of significant misconduct there would typically be some level of abuse, neglect, and or abandonment of the child. Also relevant is whether there is a history of the parties being unable to make cooperative decisions concerning the child. If these factors are all present in your case, there may be a viable argument for sole legal custody.
The other scenario in which sole legal custody comes up is when one party has been the predominant caretaker of the child and feels the other parent is ill suited to make any parenting decisions. The argument usually is that the party seeking sole legal custody has by and far been the parent who has taken the child to all doctors appointments, attended all school events, cared for the child nearly exclusively from birth through whatever age at which the determination is occurring. The argument here is not necessarily that the other parent is incapable of making parenting decisions, just that the parent has never opted to do so and that introducing him or her into the process at this point poses too great a risk for the child’s well-being. This is generally a losing argument. While in every case is different and the facts and circumstances involved in this scenario may be so extreme as an argument for abandonment could be made in good faith, that normally is not the case. The argument that he or she has never played this role is generally in adequate in this scenario. That’s because, even in those cases where such allegations are true, through this legal process, things change. Roles change, legal responsibilities change, and time management changes. The courts of you, reflective of our view as a greater society, is that although one party may not have made these decisions in the past, so long as he or she is capable of cooperating to make the decisions, a level of collaboration and cooperation is expected.
Before we move on to physical custody, it is important to note that asserting a claim for sole legal custody can be a provocative and controversial step in the eyes of the court and the other party. That said I highly caution you in making such a request unless and until you have met with a competent divorce or family law lawyer. in short, it may work against you to seek sole legal custody if your case is weak. And, in the alternative, if you have a strong case, you must take steps in the litigation to preserve your claim for sole legal custody. You also would want to make such a claim without negatively impacting the remainder of your case.