Child Custody

In this guide, we will discuss the details about Custody law.


Who Can File For Custody?

Married: 

  • Either or both parents can file for custody.

Not Married:

  • The father must prove that he is the father.
  • Either or both parents can file for custody.

Who Has Child Custody Before The Court Decides?

Married:  

  • Both parents will have equal rights to make major life decisions about the child.  
  • Both parents have equal physical and legal custody until separation, or until the court decides. 

Not Married:  

  • The mother will have sole legal and physical custody until the court decides.

Types of Custody Arrangements

1. Sole Legal Custody: 

  • one parent has the right and power to make decisions about the child  
  • these decisions can include ones about school/education, medicine, and religion 

2. Shared Legal Custody:

  • both parents have the right and power to make decisions about the child.  
  • these decisions can include ones about school/education, medicine, and religion.

3. Sole Physical Custody: 

  • the child lives with one parent. 
  • if the court says “yes,” the other parent may have parenting time.

4. Shared Physical Custody:   

  • the child has a plan that allows them to live with both parents

What Is Parenting Time?

Parenting Time gives the parent who does not have physical custody time to spend with or visit the child.

How Are Child Custody and Parenting Time Decided? 

The court will look at what is in the best interest of the child (also known as “the Best Interest” test). Some things the court may look at are: 

  • How the child is doing in school (academically and socially).
  • Parents’ history of: drug use or abuse.
  • The child’s relationship with their parents and family.
  • If one parent has been the caregiver.

My Spouse/Partner Wants To Move Away With Our Child

If You Have Joint Custody: 

The court will look at the Best Interest test 

 

If There Is No Custody Order:  

The court will use two tests to make this decision 

1. First, they will look at the Real Advantage test  

  • Under this test the court will decide if there is an “advantage” to the parent such as a job or family support  

2. Second, the court will look at the Best Interest test 

 

(Content Adapted from Mass.gov: https://www.mass.gov/child-custody-and-parenting-time)


How Do I File For Custody?

Before filing for custody, your child must have lived in Massachusetts for at least 6 months. This is called the home state advantage rule. 

How To File 

In-person at the Probate and Family Court

By mail 

 

Suffolk Probate and Family Court

24 New Chardon St.

Boston, MA 02114

(617) 788 - 8301

M-F 8am – 4:30pm

Communities Served: Boston, Brighton, Charlestown, Chelsea, Dorchester, East Boston, Hyde Park, Jamaica Plain, Revere, Roslindale, South Boston, and Winthrop.

 

Middlesex Probate and Family Court

208 Cambridge Street 

Cambridge, MA 02141

(617) 768- 5800

M-F 8am – 4:30pm

Communities Served: Acton, Arlington, Ashby, Ashland, Ayer, Bedford, Belmont, Billerica, Boxborough, Burlington, Cambridge, Carlisle, Chelmsford, Concord, Dracut, Dunstable, Everett, Framingham, Groton, Holliston, Hopkinton, Hudson, Lexington, Lincoln, Littleton, Lowell, Malden, Marlborough, Maynard, Medford, Melrose, Natick, Newton, North Reading, Pepperell, Reading, Sherborn, Shirley, Somerville, Stoneham, Stow, Sudbury, Tewksbury, Townsend, Tyngsborough, Wakefield, Waltham, Watertown, Wayland, Westford, Weston, Wilmington, Winchester, Woburn.

 

New Bedford Probate Court

505 Pleasant Street

New Bedford, MA 02740

(508) 999-5249

M-F 8am-4:30pm

Communities Served: Attleboro, Fall River, New Bedford, Taunton, Acushnet, Berkley, Dartmouth, Dighton, Easton, Fairhaven, Freetown, Mansfield, North Attleborough, Norton, Raynham, Rehoboth, Seekonk, Somerset, Swansea, Westport.

 

(Content Adapted from Mass.gov: https://www.mass.gov/child-custody-and-parenting-time)


Forms to File for Each Situation (you can search the internet for each form name/number):   

Are you married and also want a divorce? 

  • If yes, then you can file for custody of your child at the same time (See Divorce Pamphlet for forms)  

Are you married, but don’t live with your spouse? 

  • If yes, then you can file for custody of your child and child support at the same time.  
      • Complaint for Separate Support (CJD 102)  o Certified Copy of Civil Marriage Certificate
        • A certified copy comes from your town or city’s clerk or by the registrar of vital records  
      • Affidavit Disclosing Care of Custody Proceedings (OCAJ-1 TRC IV)  

Are you unmarried, but your name is not on your child’s birth certificate? 

  • If yes, then you must file: 
    • Complaint to Establish Paternity (CJD 106) 
      • A copy of the child’s birth certificate (If the child was born in MA, you can get this from the Registry of Vital Records) 
    • Affidavit Disclosing Care or Custody Proceeding (OCAJ-1 TRC IV)  

 Are you unmarried, but there is already a court order saying you are the father, or you and the other parent signed an agreement of paternity? 

    • If yes, then you must file: 
      • Complaint for Support-Custody-Parenting Time (CJD 109)  o A Voluntary Acknowledgement of Paternity  
        • This is a document signed by the mother and father to establish legal paternity. 
        • Signing the document is voluntary  o Affidavit Disclosing Care or Custody Proceeding (OCAJ-1 TRC IV)  

 

(Content Adapted from Mass.gov: https://www.mass.gov/child-custody-and-parenting-time)