Temporary and Permanent Legal Custody of Children
A judge will listen to evidence so that the court can make a decision that is in the child's best interests. And, if your case is heard outside of Massachusetts, we believe that, no matter what the law of your jurisdiction may say, in fact, every judge, in considering the best interests of the child, will look at these factors.
Massachusetts law (Chapter 208, Section 31) provides that in making an order relating to the temporary or final "possession" 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 or possession."
If there is a contest over children, it typically centers on either physical custody or visitation or both. In making a decision, Section 31 provides that a judge MAY consider "whether or not the child's present or past living conditions adversely affects his physical, mental, moral or emotional health."
In practice, judges also consider:
- the age of the child and the parties
- the physical and emotional health and needs of or danger to the child, in the past, now and in the future
- the physical and emotional health of the parties
- the school performance, special interests and activities of the child;
- the ability of each party to foster the growth and development of the child
- the ability of each party to provide continuity and stability of environment
- the relationship and attachments of the child to the parties, the parents, siblings and any other person who may have a significant effect upon the child
- the ability of each party to cooperate with those persons to whom the child has such a relationship and attachments and to provide them access to the child
- the acts or omissions of each parent which may indicate the nature of the existing parent-child relationship
- any excuse, justification or reason for acts or omissions of the parents
- the expressed preferences of the child, provided that the court has found such child to be of sufficient age and understanding to express such a preference
- the motivation of the parties seeking custody
- the length of time the child has resided in a party's environment
- the employment of each party
- the financial or emotional support of the child - past, present and future
- the amount of time spent away from the home by each party, the adequacy of child care arrangements and the programs available to assist the parties to promote the best interests of the child
- the geographical accessibility of persons to whom the child has a significant relationship and attachment
- any other factor which the court considers of relevance to its determination of custody.
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