Extensive Family Law Representation at Hoffman Law
If you’re reading this, you’ve likely either already gotten or are thinking about getting a divorce. Very few things in life are as traumatic as ending a marriage. If children are involved, these feelings can be tenfold. While it can be very difficult, staying in a broken marriage can be far worse.
Even once the marriage is over, and the divorce has been finalized, there are numerous issues that remain. If children are involved, you can expect these “issues” to continue until the children are eighteen years old, and – in many cases – well into their college years. Parenting choices and decisions (related to the children), visitation, child support issues, and financial obligations pertaining to college or trade school, are all issues that necessitate returning to court for hearings and possibly trials.
Hoffman Law can get you through these complicated and emotional challenges successfully, while informing you of all of your rights and options. We provide vigorous and dedicated representation, adeptly maneuvering your case through the legal system toward your ideal outcome. From day one, we put our experience to work for you, helping you avoid common pitfalls Whether you’re contemplating divorce or are facing child support or child custody issues, call Hoffman Law today, for your free initial, confidential, consultation!
Child Custody Law in Massachusetts
Very few, if any, issues in a divorce are as potentially combustible as the issue of child custody. Most of us, who are parents, would die for our children without hesitation. It is a love beyond description, and one only another parent can truly understand. Thus, when facing a divorce, one of the most stressful issues the parties face is contemplating how they will divide up custody of their children. If you have children and are in this situation, you will want to understand the basics of Massachusetts’ child custody law.
First of all, it is important to understand that, in the eyes of the law (in every state) both parents have equal rights to their children, while married. Without a court order, ordering otherwise, both parents have absolute rights pertaining to their children and decisions made regarding their children. Of course, this can change, upon divorce, but as long as the parties remain married this is the case.
For example, we witnessed a legal case, where a married couple were not getting along, and were on the verge of getting divorced. A few months prior to the case, the two had an argument, wherein the wife declared her intention to seek a divorce, and ordered the husband out of their apartment. The husband did leave, but – unbeknownst to his wife – he took their two-year-old daughter with him. Moments later, when she realized what he had done, the wife called the police, described her husband’s vehicle, and told the police that he had kidnapped her child. The police found him, pulled him over, arrested him, and returned their child to the wife. Upon being sued for malicious prosecution, the wife told the court that she had been a stay-at-home mother, that she would be seeking sole custody, and that the husband knew this and – therefore – had no right to take their child. The court disagreed, and the husband won and was awarded damages.
The previous example illustrates the starting position for all family law courts, namely that both parents have equal rights to their children. The fact that one parent may have made all of the decisions related to their children, while the two were married, is irrelevant, as a matter of law. The other parent had the same “legal right” to make decisions, regardless of whether or not he or she exercised that right.
Thus, when two parties begin divorce proceedings, unless a specific motion is filed seeking temporary custody of the children, the court will automatically presume that both parties will share temporary legal custody of the children (see below, for discussion on difference between legal and physical custody). What happens though if one of the parties does motion for temporary legal custody and intends to ultimately seek primary custody of the children? Upon what basis does the court make such decisions? This leads to the second important point.
The second point you’ll want to understand is the basis used by Massachusetts’ courts to determine custody issues. In Massachusetts, all decisions regarding parental custody of children, are based upon one standard, commonly referred to by Massachusetts’ attorneys using the acronym BIC. BIC stands for the “Best Interest of the Child.” This is the standard used by the court in determining both custody and visitation issues.
How do judges in Massachusetts family courts determine what is in the “Best Interest of the Child?” Obviously, both parties, through their attorneys, offer evidence to the court to support their version of what is BIC. There is another important mechanism, though, used by courts in Massachusetts that you should be aware of – guardians ad litem. A guardian ad litem (“GAL”) is a person (an attorney) appointed by the court, by virtue of M.G.L. c. 215 s. 56A, whose job is to represent the interests of the child. The GAL does this by investigating everything he or she can, related to the child, including both parents, and then reporting his or her recommendation back to the court. In some custody cases, your attorney may suggest requesting that the court appoint a GAL. In other cases, the court will appoint a GAL on its own, even without such a request.
The third important point you’ll want to understand is one you are probably already aware of, and this is that court-ordered custody arrangements can be changed down the road. In fact, any time there is a material change in circumstances, with relation to the custody of the children, the family court can be petitioned for changes in the custody arrangement. For example, if the court gives primary custody to one parent, based on the fact that the other parent has a job that requires him or her to constantly travel, that parent may return to court, when he or she is no longer required to travel on a constant basis. The number of things that the law will view as a “material change in circumstances” are virtually infinite.
Custody battles are extremely difficult on all involved, including (or perhaps, especially) the children. In addition, the overwhelming majority of the time, the children will be best served by a healthy amount of contact with each parent. If you are seeking to limit or extinguish the child’s contact with the other parent, it should be done only in severe situations – such as where one parent is abusive. Parties driven by personal motives, such as revenge and feelings of anger and hate toward the other party, damage the children and are often unsuccessful, because family law judges are adept at spotting these situations. If a judge comes to believe a parent is not motivated by sincere concerns for the child, he or she will often punish that party by providing the other parent even more contact than before.
Whatever the current situation, if you are seeking a change in the custody arrangement, or if the other parent is seeking a change, it is crucial that you seek the assistance of a qualified attorney, one who intimately understands the parent/child relationship and all that is at stake.
Hoffman Law provides vigorous representation in child custody matters, and we understand the delicate nature of the child-parent relationship. Call today for your FREE CONSULTATION!
The Two Type of Custody: Legal vs. Physical Custody
Massachusetts’ law delineates two types of custody, when it comes to the custody of children – legal and physical custody. Getting right down to the heart of it, most of us tend to assume that the two go hand in hand. In other words, most people would assume that when a parent has physical custody, he or she also has legal custody, but that is not true. The two can be separated, and Massachusetts law does separate them. Thus, any parent potentially or currently facing custody issues must understand the difference between the two.
In essence, legal custody is the right to make decisions for and about the child. Obviously, this doesn’t mean that a parent with sole legal custody can dictate what time the other parent serves the child dinner. Nor does it mean he or she can dictate other such trivial matters, as when the child goes to bed, what type of toothpaste the child uses, and what sort of bedtime stories the other parent reads the child. However, a parent with sole legal custody does get to make major decisions pertaining to the child. Which decisions exactly, does a parent with sole legal custody get to make?
A parent with sole legal custody gets to make ALL major decisions, regarding the child. Massachusetts’ law defines “sole legal custody” by saying “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.” M.G.L. c. 208 s. 31. As you can see, the rights of a parent with sole legal custody to make decisions is extensive.
Most parents would find such an arrangement to be absolutely intolerable, if stuck on the other side, without the right to make decisions for their child. Thankfully, the standard, and certainly the starting place, for family law courts, in Massachusetts, is to award “shared legal custody,” rather than sole legal custody. Massachusetts’ law refers to “shared legal custody” as the ” …continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare.” Id. Thus, in most cases, when shared legal custody is awarded, each parent has a right to make major decisions. In this situation, parents must make these decisions together, alternate turns making them, or come up with some other system that works for them.
As you’re beginning to see, physical custody is entirely different from legal custody. Physical custody is just that – physical possession of the child. Thus, it simply means that the child stays, or lives, with the parent, during the period of time that the parent has been awarded physical custody. As with legal custody, physical custody can also be divided up in a number of ways. The starting place for Massachusetts’ courts is to award both parents shared physical custody of their child. When parents are awarded shared physical custody, the child will spend the same amount of time with each parent, each week. A parent can also be awarded “sole physical custody,” but it doesn’t necessarily mean what you might think it means.
Massachusetts’ law refers to “sole physical custody” by saying ” a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent,” Id. When most of us hear the term “sole custody,” we assume it means one parent has custody of the child at all times, but as you notice, the law itself states that it is subject to “reasonable visitation.” Id. While the statute does not go on to provide a definition of “reasonable visitation,” it is interesting to note that the Massachusetts Child Support Guidelines, in determining the calculations for child support payments, where one parent has sole physical custody, bases its figures on the assumption that the noncustodial parent will have the child for thirty percent of the time. We can say then that, at least as far as the Massachusetts’ government workers who drafted the Child Support Guidelines were concerned, “reasonable visitation” is equal to thirty percent of the child’s time, in most cases. This is a fair amount of time, approximately two days per week.
As you can see, physical and legal custody can, and – in Massachusetts – often are, divided up. A noncustodial parent, with only visitation rights to their child, often still has shared legal custody. There are no doubt even situations where one parent has sole physical custody and the other has sole legal custody, although it is surely rare. The delineating factor, as we discussed above, is the BIC (Best Interest of the Child). When the court strays from the standard starting position of both shared legal and physical custody for both parents, it does so because it believes it is in the Best Interest of the Child.
If you still have questions about the difference between legal versus physical custody, or have other questions about child custody, please call or email us today for a free initial consultation. We are always happy to answer any questions you may have.