Custody & Visitation

Custody is the term used to determine where the children live legally, as well as some logistical issues, depending on the type of custody arrangement:  sole or joint. 

At the beginning of the case, the court will issue a temporary order of custody, deciding where the children will live and how they will split their time with the parents during the case.  Usually the court seeks to preserve the status quo, meaning that most of the time the children will remain where they are, and whatever arrangement you and your spouse have worked out will remain in place.  If temporary custody (or visitation) is hotly disputed, you will have a hearing (a short trial) where your attorneys will provide evidence and the judge will make a decision.

While your case is ongoing, it is essential that you keep a Child Visitation Record and provide other documentation of how your children divide their time, as well as problems and concerns that arise about parenting. 

Any Probate and Family Justice sitting in Worcester County must follow a legal standard when making a cutody decision.  This standard is called the best interests of the child.  By doing what is best for the child – and not what is best for either parent – the judge focuses on the important issues and eliminates the unimportant ones.  Typically, the significant factors considered when making a determination include:

1. The current residence of the child and the overall effects of changing the residence;
2. The relationship between the parents and the child;
3. The care or concern delivered by each parent;
4. Emotional and financial stability of the parents;
5. How each parent treats the other (including any instances of domestic violence and/or drug or alcohol problems in the home);
6. Expressed desires of the (older) child.

“The Tender Years” Doctrine, which assumes any child under the age of six was presumed to be better-off with their mother, has long been abolished and there is no presumption that one gender is better suited to have custody.  Judges look at all the evidence and rule on the four forms of custody, though many have been known to be creative in using combinations of each of the following:

Legal Custody:  To have legal custody of a child is to have the right to make all the decisions about a child’s upbringing, including decisions for the child regarding education, health care, religion and their general welfare.  Sole legal custody is when only one parent can make the decisions.  Joint legal custody awards the right to both parents.

Physical Custody:  Where the child resides most often.  Sole physical custody is when a child lives with one parent, and the other may have visitation rights.  Joint legal physical custody occurs when a child is able to reside with each parent for a substantial amount of time during the course of the calendar year.

Sole Custody:  This means that only the custodial parent has physical and legal custody of a child, and the non-custodial parent has visitation rights.

Joint Custody:  Joint, or shared custody, means parents who don’t live together have shared decision-making responsibilities for, and/or physical control and custody of their children.  This could be joint legal custody, joint physical custody, or both.

Our Boston team reports that judges all over the Commonwealth are moving away from the term custody as it perpetuates a winner-take-all proposition.  Of late, the courts have encouraged both parents to be actively involved the upbringing of children, and accordingly, the concept of a customized parenting plan sets forth the terms of that joint parenting agreement.

The most litigated issue relating to custody and visitation revolve around the parenting schedule.  When both parents begin to map out a tentative schedule, the considerations include: when you each have free time you could spend with your children; what the work hours of both parents are; child supervision after school and on weekends; ability to work from home and methods for minimizing daycare and child-care costs.

In addition to your schedule of daily life, you will need to create a holiday and vacation schedule.  You have complete freedom when creating this schedule.

While you will be creating a schedule that is tailored to your situation, there are some important basics to keep in mind:

1. Children need routines and a home base
2. Children of different ages have different needs and, needs change
3. When making the transfer maneuver between homes, what items will travel back and forth with your children?
4. When and how will you want to work out changes to the schedule?
5. Who will be responsible for dealing with the school on matters such as homework and returning notes back and forth?