Custody in Massachusetts.
The starting point the law actually sets, what the judge has to weigh, and the deadlines that catch people out.
See a different stateMassachusetts
There is a temporary presumption of shared LEGAL custody while the case is pending, an explicit refusal to presume shared PHYSICAL custody at any stage, and no presumption either way at trial. G.L. c. 208, § 31: "Upon the filing of an action… and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody." And at trial: "There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A." The § 31A exception runs against an abusive parent, not toward shared custody. There is no presumption of equal parenting time anywhere in the statute.
Use the state’s own words
Massachusetts says "custody," and the statute defines four terms you should use exactly: "sole legal custody," "shared legal custody," "sole physical custody," and "shared physical custody" (G.L. c. 208, § 31). Note the word is SHARED, not "joint" — using "joint custody" in a Massachusetts filing marks you as borrowing another state's vocabulary. If you are asking for shared custody at trial you will also file a "shared custody implementation plan."
How Massachusetts decides
Decisions against where the child lives
All four terms are defined in G.L. c. 208, § 31. Sole legal custody: "one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." Shared legal custody: "continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." Sole physical custody: "a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child." Shared physical custody: "a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents."
What the judge must weigh
Massachusetts has no numbered list of best-interest factors — this is one of the shortest standards in the country. G.L. c. 208, § 31 provides: "In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." For the narrower question of whether TEMPORARY shared legal custody would not be in the child's best interest, the same section does list factors: "the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child." G.L. c. 208, § 31A adds that in issuing any temporary or permanent custody order the court "shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child." In an unmarried-parent case, G.L. c. 209C, § 10(a) adds that the court "shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent," and shall consider where and with whom the child has lived in the six months immediately preceding the case and whether one or both parents has established a personal and parental relationship or exercised parental responsibility.
What the child wants
Massachusetts sets no age and, in the custody statutes we reviewed, does not mention the child's preference at all as a custody factor. Judges do consider what older children want, but it comes through case law and through a guardian ad litem's report rather than a statutory rule. One place a child's consent does appear in the statute is removal from the state: under G.L. c. 208, § 30, a child "of suitable age to signify his consent" cannot be removed from Massachusetts without that consent.
Where there has been violence or abuse
G.L. c. 208, § 31A creates a real presumption. "A probate and family court's finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent." "Abuse" means attempting to cause or causing bodily injury, or placing another in reasonable fear of imminent bodily injury, between parents or between a parent and child. A "serious incident of abuse" means causing or attempting to cause serious bodily injury, placing another in reasonable fear of imminent serious bodily injury, or causing another to engage involuntarily in sexual relations by force, threat or duress. A 209A restraining order does not by itself establish a pattern or serious incident of abuse, and an ex parte 209A order is not admissible to show that abuse occurred — though the underlying facts behind it may be. If the court finds a pattern or serious incident of abuse and still issues a custody order, it must within 90 days enter written findings on the effects of the abuse on the child showing the order furthers the child's best interests and safety. The statute lists nine specific conditions the court may attach to any visitation by an abusive parent, including protected exchanges, supervised visitation, a certified batterer's treatment program, abstaining from alcohol or controlled substances for 24 hours before and during visits, no overnights, a bond for the child's safe return, and ordering the abusive parent to pay the cost of supervised visitation. G.L. c. 209C, § 10(e) applies the same presumption to children of unmarried parents, and adds that where a child was conceived during a rape for which the parent was convicted, the conviction "shall be conclusive evidence of a serious incident of abuse."
The paperwork and the people
The parenting plan
Only if shared custody is on the table at trial. G.L. c. 208, § 31: "At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody." So the trigger is a contested custody trial plus a request for shared legal or physical custody — not every case. For unmarried parents, joint custody requires either an agreement under G.L. c. 209C, § 11 or a court finding of prior successful joint responsibility (see below). We did not confirm a single official statewide plan form.
If the court appoints someone to look into it
G.L. c. 215, § 56A: "Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children." The guardian ad litem must report in writing to the court before final judgment, and "such report shall be open to inspection to all the parties in such proceeding or their attorneys." On cost, the statute says: "The compensation shall be fixed by the court and shall be paid by the commonwealth, together with any expense approved by the court, upon certificate by the judge to the state treasurer." Be aware that in practice the Probate and Family Court also appoints privately-paid guardians ad litem and custody evaluators whose fees the parties are ordered to share, so ask the court which category your appointment falls into before you agree to it.
Moving away
What you must do before you move
Massachusetts has no notice-period statute; it has a consent statute. G.L. c. 208, § 30: "A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders." In plain terms: to move the child out of Massachusetts you need either both parents' consent (or the child's own consent if the child is old enough), or a court order allowing it. There is no set number of days and no mileage trigger — the trigger is crossing the state line.
Later on
Changing the order
G.L. c. 208, § 28 provides the mechanism: "Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment." The section itself does not spell out what must have changed to justify a custody modification — that test comes from Massachusetts case law. There is no statutory waiting period between attempts.
If you were never married
This is the single biggest difference in Massachusetts, and it catches unmarried fathers off guard. G.L. c. 209C, § 10(b): "Prior to or in the absence of an adjudication or voluntary acknowledgment of parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of an order or judgment of a probate and family court relative to custody, the person who gave birth shall continue to have custody of a nonmarital child after an adjudication of parentage or voluntary acknowledgment of parentage." Read that twice: signing the acknowledgment of parentage at the hospital establishes that you are the father, but it does NOT give you custody or parenting time. You still need a court order. And joint custody is not freely available: under § 10(a), "In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings… and have the ability to communicate and plan with each other concerning the child's best interests."
If you were never married to your child's other parent, know this before anything else: in Massachusetts the parent who gave birth has custody by operation of law until a judge says otherwise, and that stays true even after paternity is acknowledged or adjudicated (G.L. c. 209C, § 10(b)). Signing the acknowledgment is not the same as getting parenting time. File for a custody and parenting time order. The second surprise runs the other way, for married parents: the moment a divorce is filed you both automatically have temporary SHARED LEGAL custody under G.L. c. 208, § 31 — but the same paragraph says flatly, "Nothing herein shall be construed to create any presumption of temporary shared physical custody." Shared say in decisions, no assumption about the schedule. Third, moving out of Massachusetts with your child requires the other parent's consent or a judge's permission under G.L. c. 208, § 30, however short the drive — a move to New Hampshire needs permission that a move across Boston does not.
What we could not confirm
- We could not confirm whether mediation, or the Probate and Family Court's parent education program, is mandatory before a contested custody hearing — those requirements come from court standing orders rather than the statute book. Ask the Probate and Family Court in your county which programs you are required to complete and by when; in many counties the parent education program is required early in a divorce involving children. We also could not confirm from the statute what you must prove to change an existing custody judgment, since G.L. c. 208, § 28 sets out the procedure but not the standard; that test comes from court decisions.
Compare all fifty states
Where 50/50 really is the default, and the twenty-six states where nothing is presumed.
And the money side
How Massachusetts calculates child support, and the overnight number that changes it.
The rest of what we have written about Massachusetts. Every figure is quoted from Massachusetts’s own statute or its courts’ own published schedule, and carries the date we last checked it.