CHILD CUSTODY

When determining child custody or parenting time, the court considers what is in the best interest of a child. There are many factors taken into consideration including the child’s well-being, the child’s school, community engagement, the child’s relationships, history of abuse, who has been the primary caregiver, and the child’s preference depending on their age. 

Either party can file a petition in the Probate and Family Court however, if the parties are not married, the father’s paternity must be established prior to entering Judgment. Father’s paternity may be established by:

1. Signed Voluntary Acknowledgement of Paternity; or 
2. Ask the Court to Establish Parentage. 

If you request the Court to establish parentage, the Court may order Genetic Marker Testing for the biological mother, putative father, and child. 

Legal custody and physical custody are two distinct types of custody in Massachusetts. Legal custody refers to a parent’s right to make decisions related to a child’s well-being. This may include medical care, education, and religious decisions. Physical custody determines where a child lives and gives a parent the right to make day-to-day decisions. If the parents of a child are unmarried, the mother has sole legal and physical custody of the child until the court orders otherwise. If the parents are married, both parties share legal and physical custody of a child until a court order is issued.  

Each family’s needs are unique and when it comes to determining a parenting plan for your family, it is not a “one size fits all.” When creating a parenting plan, the Court may consider the following:

• Children’s age;
• Needs of the child(ren);
• Daily schedules of the child(ren) and the parents ;
• Responsibilities of each parent prior to the separation;
• Quality of the child(ren)’s relationships between and family and friends; and
• Distance between homes.

This list is not exhaustive, but rather is intended to provide an overview of things the Court may consider. The parenting plan typically addresses weekday and weekend exchanges, holiday and school vacation, sick days, and birthdays. Children benefit from having a consistent schedule that follows similar routines in each household. At King and Farrell Law our attorneys can help create a parenting plan with the child’s best interest in mind.  

Both the process and cost to file with Court vary depending on if you are married filing for divorce and custody of your child at the same time or if you are just filing a Complaint for Custody. If you are filing a Complaint for Divorce and would like to Judge to make decisions regarding custody, there will be a $215 filing fee and $5 summons fee. If you are not married and filing a Complaint for Custody the filing fee will be $115 with a $5 summons fee. If you are seeking custody and the putative father did not sign a Voluntary Acknowledgement of Paternity and there is no court order naming the father, you will start by filing the following:

1. Complaint to establish paternity;
2. A copy of the child’s birth certificate;
3. Affidavit Disclosing Care or Custody Proceeding; and
4. Military Affidavit.

If you are unmarried but both parents signed an acknowledgement of paternity or there is a court order naming the father, you will start by filing the following:

1. Complaint for Support-Custody-Parenting Time;
2. A signed copy of the voluntary acknowledgement of paternity;
3. A copy of the child’s birth certificate;
4. Affidavit Disclosing Care or Custody Proceeding; and
5. Military Affidavit.

If either party is seeking child support, you will also need to file a Financial Statement (Short Form Financial Statement or Long Form Financial Statement). You are not required to use a lawyer to file for custody however, custody proceedings can be complicated and having an attorney may be helpful. Our attorneys can answer your questions, explain how the law applies to your case, and guide you through the process.