Child Custody
There is nothing more difficult than disputes over child custody, visitation, and support. The courts will assign custodial responsibility based upon what is in the child’s best interest, not according to a system of competing parental rights. The law presumes that fit parents will act in their child’s best interest and if divorcing parents can agree on a custody and visitation schedule, the court will usually accept the parents’ plan. If parents cannot agree about what is in the child’s best interest, the court will make the decision, usually after hearing testimony from the parents and from court-appointed experts. The Massachusetts Probate and Family Courts are charged with protecting the best interests of children and a judge has the power to make virtually any order he or she determines will be in the best interest of the child.
What is the “best interest of the child” standard?
The best interest of the child standard simply means that the court’s analysis of any issue regarding a child will be centered on the child rather than the parents. Parents often think that their rights are paramount. In Massachusetts, the child’s best interest is paramount.
How does a court decide what is in a child’s best interest?
The court hears testimony from the parents and from experts in child development. The court will often appoint a guardian ad litem to investigate and make recommendations to the court about what is best for the child.
What is a guardian ad litem?
A Guardian ad Litem (GAL) is a person – usually an attorney or a mental health professional – appointed by the court to investigate the family situation and to make recommendations to the court with respect to custody and visitation of minor children. The GAL does not advocate for either party. Sometimes a GAL will be appointed for the sole purpose of determining whether or not to waive a child’s patient-therapist privilege.
What is the difference between legal custody and physical custody?
Legal custody refers to the right to make major life decisions, typically in the areas of health, education, and religious upbringing. Physical custody refers to where the child resides.
What are the usual child custody arrangements for divorcing spouses?
There is no such thing as a “usual” custody arrangement. Parents can make whatever arrangements they choose if they can agree, and parenting plans are as varied as the people who make them. In some cases there is a primary custodial parent and the other parent has visitation. In other cases, the parents share custody more or less equally. Custodial arrangements and visitation schedules are highly dependent upon the age of the child and the ability or inability of the parents to cooperate with one another.