Legal Custody, also known as “decision-making authority”, is the right of one parent to be involved in the major life decisions relating to their child. This includes having access to the child’s school and medical records without the permission or knowledge of the other parent.
Most parties agree to joint legal custody, recognizing that most parents are already involved to this extent, and legal custody just recognizes that involvement. In cases where a parent is unfit or unwilling to participate with the other parent in reasonable discussions about major life decisions it may be necessary to seek sole legal custody.
Physical Custody, put simply, is where does the child live. This is what most people are referring to when they use the term “custody.” If the child lives primarily with one parent, usually considered to be 2/3 of the time or more, then that parent is said to have sole physical custody.
The court’s try to award physical custody to the parent who has traditionally been the primary caretaker of the children, assuming that there has been a defined distinction in roles, and that the primary caretaker remains fit to continue that role.
Oftentimes parties become obsessed with which parent is described as the “custodial” parent or the “visiting” parent. While we recognized that these designations carry connotations with them and in some contexts can be hurtful, we encourage our clients to consider designating a “Parenting Plan” rather than concentrating on the designation of custodial or non-custodial parent.
A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill.
Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.
You should ask your attorney to see a sample of their Parenting Plan and to explain what each provision of the plan is for.
In addition, using a calendar to visualize proposed parenting plans can be helpful in figuring out what will work best for your family. For that purpose we have created the Parenting Plan Worksheet
. You can use the Parenting Plan Worksheet
to visualize typical parenting plans, including those recomnded by the Massachusetts Model Parenting Plans
, or create your own custom plan.
SAME-SEX DIVORCE TIP:
Because some children have two parents who may not fit the traditional Mother & Father model, we have provided a gender-neutral Parenting Plan Worksheet as well.
Same-Sex Massachusetts Divorce Website
Every case is different, especially when it comes to family dynamics, so every case requires your attorney or mediator to listen and learn about your family. Because every family is so different, there cannot be specific guidelines on custody and visitation.
However, the Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child’s life for their development to be complete. At each stage, a child’s needs are different.
In attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart
. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child’s unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.
Under Standing Order 2-16 of the Probate & Family Court, if you have any minor children at the time of the filing of your divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can present either a settlement of your case, or present your case for trial. The list of organizations that provide this training organized by by town, is available by clicking here. While any of these programs will qualify we specifically recommend the programs run by The Divorce Center and MWI.
You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.