Mediating Child Custody Disputes


Under Massachusetts law, probate judges are guided by the best interests of the child in granting custody and awarding child support. By statute, there are several child custody options from which to choose. Skilled family law attorneys can educate divorcing parties about the various shared custody plans. Divorce lawyers guide clients through the tumult of a marital break-up. They help parties collaborate on visitation to achieve the optimal custodial arrangement for the divorcing couple’s family.

Consider the following scenario. Dan and Evelyn met in college and married when they graduated 15 years ago. The couple have two children. Frank is 12 years old and his younger sister, Grace, is six.  Evelyn blames their marital woes on Dan’s stressful job situation. She claims his working long hours have disrupted the family’s home life and fears he is abusing alcohol to cope. Dan attributes the breakup to the couple marrying young and falling out of love. He suspects Evelyn may be having an extramarital affair. Both parents are active in their children’s school and activities. Dan coaches Frank’s Little League team and Grace is very close to Evelyn, doing needlepoint and other hobbies together.

Dan moved out of the family home and is renting a condominium closer to his office. The two spouses barely speak to each other . Each parent wants joint legal custody and sole physical custody of the children.


Child Custody Plans

The statutory child custody options include sole legal custody and shared legal custody. Other options include sole physical custody and shared physical custody. Sole legal custody empowers one parent to make major decisions concerning the children’s welfare. Religious upbringing, education choices, and medical care are among decisions made by the sole legal custodial parent. Under a shared legal custody arrangement, both parents are mutually responsible and involved in decision-making in the aforementioned areas. Also, both parents oversee the children’s moral and emotional development.

Sole physical custody is a child custody option in which the children live with one parent who supervises them. This arrangement presumes reasonable visitation by the other parent unless the court deems such contact not in the child’s best interest. In a shared physical custody arrangement, the child resides with, and is supervised by, each parent at designated times. Shared physical custody is intended to provide the child  consistent and frequent interactions with both parents.

Factors courts consider when evaluating whether to grant sole physical custody include the parents’ work schedules (a mark against Dan in our scenario) and who tends to the children’s everyday needs. Those needs include feeding them, seeing that they get to public and religious schools and taking them to medical appointments.

Where possible, courts favor joint physical custody so that both parents can maintain an ongoing relationship with their children. Dan and Evelyn must attend parenting classes, which may help them overcome visitation issues.


Visitation Schedules

Regarding visitation, each family’s circumstances are unique. There is no one-size-fits-all template. The best interests of Frank and Grace will be the court’s governing situation. The children’s need for parental attention and oversight are not identical. Frank may need more time for after-school activities, whereas Grace may require more parental time. As a 12 year old, Frank may have some say in his preferred custodial situation, but a court would not be bound by Frank’s wishes.


Supervised Visitation

Dan’s possible drinking problem could prompt the court to order supervised visitation with Frank and Grace to ensure they are not in an abusive environment. Ideally, the third party present when Frank and Grace visit Dan is someone the kids are comfortable with and on whom Dan and Evelyn can agree. Failing that, supervising centers are available and agencies in the Commonwealth offer supervisory services.


Guardian ad Litem

If Dan and Evelyn are unable to work out their custody and visitation dispute, the court could appoint a guardian ad litem. Often a social worker, lawyer or therapist, the guardian ad litem prepares a written report with visitation and custody recommendations. Judges are not bound by the report’s findings, but accord them due weight.

Other issues that experienced family law attorneys address in custody situations include how many phone calls Dan can have with the kids when they are staying with Evelyn and vice versa. Because Evelyn and Dan are barely on speaking terms, divorce lawyers might agree to provide Frank with his own cell phone so that the other parent can call the child directly.

If you have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Interested in learning more about mediation? Check out our article on mediating marital home issues.