Massachusetts law about child custody and parenting time

A compilation of laws, regulations, cases and web sources on the law of child custody and parenting time by the Trial Court Law Libraries.
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Table of Contents

Massachusetts laws

MGL c.208, s.28 Care, custody and maintenance
MGL c.208, s.28A Temporary care
MGL c.208, s.29 Minor children, foreign divorces
MGL c.208, s.30 Removal of child from state
MGL c.208, s. 31 Shared custody
MGL c.208, s.31A Consideration of abuse
MGL c.208, s.32 Bringing child before court
MGL c.209, s.38 Visitation and custody orders; consideration of abuse toward parent or child; best interest of child
MGL c.209B Uniform Child Custody Jurisdiction Act
MGL c.209C, s.10 Award of custody; criteria. Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock.

Selected cases

A.H. v. M.P. , 447 Mass. 828 (2006)
A woman who never adopted the child of her same-sex partner, "although she was well aware of the importance of doing so," and was not the primary caretaker for the child, did not have a legal right to parenting time or a support agreement as a "de facto parent." Further, the court declined to adopt a "parent by estoppel," theory as defined in the ALI Principles of the Law of Family Dissolution § 2.03 (2002). saying, in part, "the parent by estoppel principle is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit." and "parent by estoppel status is most appropriate where "adoption is not legally available or possible.""

Della Corte v. Ramirez , 81 Mass. App. Ct. 906 (2012)
A child born of a same-sex marriage is the legitimate child of both people. "As a result, it follows that when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage."

E.N.O. v. L.M.M. , 429 Mass. 824 (1999). De Facto Parents
"A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent. A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent." In this instance, the court may order parenting time for the de facto parent.

Moving away

  • D.C. v. J.S. , 58 Mass. App. Ct. 351 (2003)
    "Applications for court decision in cases in which a parent seeks to relocate within the Commonwealth should not be routine but are proper only where the relocation would evidently involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." When necessary, criteria for "relocation to a distant part of the State will resemble those applied to removal beyond the State boundaries."
  • Mason v. Coleman , 447 Mass. 177 (2006)
    In order for a parent who shares joint physical custody to move out of state, s/he must meet a higher standard than a parent who has sole physical custody. "The importance to the children of one parent's advantage in relocating outside the Commonwealth is greatly reduced." Applying the "best interests of the child" test, the court determined that the mother would not be permitted to move out of state.
  • Miller v. Miller, 478 Mass. 642 (2018)
    When there is no prior custody order to determine whether the Mason or Yannas analysis should apply, "we hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties' respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard."
  • Rosenthal v. Maney , 51 Mass. App. Ct. 257 (2001)
    Because "Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move," case outlines the different standards required by a request for modification of custody and a request to relocate, and details the necessary considerations in a request to relocate.
  • Smith v. McDonald , 458 Mass. 540 (2010). Unmarried mother
    "Permission to relocate... is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to determine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2 , the mother is the child's only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child."
  • Yannas v. Frondistou-Yannas , 395 Mass. 704 (1985)
    In detail, outlines how the best interests of the child are to be determined in deciding a case in which one parent who has sole physical custody wants to move out of state.

Forms

See File for Child Custody or Parenting Time for forms and additional information on court procedure.

Web sources

General information

  • Child Custody: Family Law Advocacy for Low and Moderate Income Litigants , 2d ed., 2018, chapter 9
    Online version of a great book includes information on differences between married and unmarried parents, types of custody arrangements, how a judge decides, changing custody orders, and necessary procedures, including checklists and sample forms.
  • Child Custody, Parenting Time, and Visitation, MassLegalHelp
    This page includes information hard to find elsewhere, including: If I haven't been to court, who has custody of the children?, Visitation Schedules, Parenting time, visitation, and child support: is there a connection?, and more.
  • Nolo's Essential Guide to Child Custody and Support , Nolo, 2017
    Not specific to Massachusetts. "This book will walk you through everything you need to know about child custody, shared parenting, and the rules about supporting your children." Also provides a list of what decisions need to be made and when. Requires library card for access
  • Supervised Visitation Centers , Mass. Legal Help.
    "Supervised visitation centers are community organizations in various locations that provide supervised visitation services. This article has program flyers, rules of operations, and information about supervising visits in other languages."

Moving away

Parenting and parenting agreements

  • Being a Great Divorced Father , Nolo, 2010
    Talks about how to get through and past the divorce process in a positive manner so you can still be a great dad to your children.  Requires library card for access
  • Building a Parenting Agreement That Works: How to Put Your Kids First , Nolo, 2014
    All about creating and working with your parenting agreement, includes sample forms. Requires library card for access
  • Guidelines for Court Investigation Reports, Juvenile Court Department, November 2013
    In a care and protection proceeding, a judge must have as much relevant information available as possible. One important source of information is the report of the court investigator, because it provides the court with useful information that otherwise may not be presented by any of the parties in the
    proceedings. 
  • Helpful Readings Toward the Understanding of Family Changes by Robert A. Zibbell, 2015.
    "An annotated bibliography and resource list for divorce or separated parents and their children. This collection was part of a project of public information initiated by the Hampshire County Probate and Family Court in Northampton, MA."
  • Model parenting plans
    These Model Parenting Plans represent the collective work of a Task Force of judges, lawyers, probation officers and mental health professionals. They combine the latest research on the needs of children with the experience of professionals who have worked extensively with children and families going through divorce and separation.
  • Planning for shared parenting: a guide for parents living apart, Massachusetts Association of Family and Conciliation Courts
  • The section which describes optimal arrangements by child's age is particularly helpful
  • Standards for Category F Guardian Ad Litem Investigators, Executive Office of the Trial Court, January 2005
    A Category F Guardian ad Litem investigator (GAL) is appointed by the Probate and Family Court to investigate facts in cases involving the care and custody of minor children and other matters that implicate the interests or rights of children. 
  • Up to parents, Up to parents.org
    Resources for parents who are separated, divorced, or never married each other (not specific to Massachusetts). The site provides advice and information in video form.

Print sources

Child support & custody update, MCLE, 2018

DCF Case Practice Policy and Procedures Manual, Dept. of Children and Families, 2008

Handling Interstate Removal Cases, MCLE, 2010

How to Try a Removal Case, MCLE, 2013

Massachusetts Practice v.2A (Family Law and Practice), 4th ed., Thomson Reuters, 2013 with supplement. Chapters 61-65

Contact

Last updated: June 30, 2018

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