Child custody is one of the most important and emotionally charged aspects of family law. Custody arrangements are significant, as they determine where the child will live, who makes decisions about their upbringing, and how much time each parent spends with the child. Even if custody decisions are made that truly serve the best interests of the child, navigating the legal and emotional complexities of child custody can be extremely challenging for parents, which is why it’s important to connect with an experienced Westborough child custody attorney. Here is what you need to know about your rights and responsibilities.

What Is Child Custody?

Child custody refers to the legal and practical arrangement regarding who will care for and make decisions about a child after parents separate or divorce. This includes making important decisions about the child’s welfare, such as where they live, how they are educated, what medical treatment they receive, and other significant aspects of their upbringing.

How Is Child Custody Decided?

Custody can be decided in two ways. First, the parents who have not been married can work together as co-parents to decide on things like parenting time, who pays what in child support, who the children primarily live with, medical decisions, or where they go to school – all of the things that are needed to help address the best interests of the children. Successful co-parenting in this way does not need to go through the court system, and time and resources can be spent on your family.

It’s important to note, however, when a child is born outside of a marriage, Massachusetts law assigns sole physical and legal custody to the mother. If you cannot work constructively with the mother in co-parenting, it can be beneficial to explore the second way to decide custody by developing a comprehensive custody agreement that is submitted to and approved by the court. Custody agreements can be worked out through mediation, as part of a divorce proceeding, through a “complaint to establish paternity”, or as a “complaint for custody, support, and parenting time.” While the court will ultimately have final say on a custody agreement, the more amicable any of these proceedings are, the more each parent will have a say in what their, and their children’s, lives will look like. If parents cannot agree, then the court has a greater say in deciding what custody arrangements will be put into place.

One of the most important parts of the custody agreement will be the parenting plan, which defines things like physical custody and a parenting schedule for the non-custodial parent. If you and your soon-to-be-ex are looking to create a parenting schedule, it’s always best to get an experienced Westborough child custody attorney that can help write up the language regardless of whether or not you’re going through mediation or court.

Having an experienced child custody attorney prepare the agreements can help prevent falling into “language traps” that make the entire custody agreement (or just the parenting plan) difficult to enforce. For example, we have seen a lot of people try to include a clause that states “Parent A shall have reasonable parenting time on weekends.” The word “reasonable” is extremely subjective based on the circumstances of each parent and creates conflict that requires the court to weigh in on what “reasonable” means.

Types of Child Custody

There are two types of custody that are going to be decided on if a custody agreement is being presented to the court: physical custody and legal custody.

“Physical custody” refers to the parent the child will live with and be under primary supervision of, and is based on what the court perceives as the child’s best interest at the time of the custody hearings. “Legal custody” refers to a parent’s right to participate in major decisions regarding a child’s health, education, religion, and overall welfare. Both types of custody can be assigned to one or both parents. It is not uncommon for one parent to be assigned as the primary physical custodian (who the child lives with), but for both parents to have joint legal custody to make major decisions on the child’s upbringing.

Both types of custody are going to be weighed against “the best interests of the child” when it comes to the court approving a submitted agreement or reaching its own judgment. This allows the court the flexibility to meet the needs of each unique family while ensuring the child has a robust and meaningful relationship with each parent when there is no concern for the child’s safety.

Is It Possible to Get Sole Custody of My Child?

In short, yes, it is possible. Generally, a court will try to implement a custody arrangement that considers the rights of both parents because, in most cases, it is in a child’s best interests to maintain a connection with both parents. However, there are some factors that might influence a court to award sole physical or legal custody.

• The child’s emotional and physical safety with the parent
• Evidence of abuse or neglect of the child
• Child’s preferences (depending on the child’s age and maturity)
• Whether a parent is willing to co-parent
• Parental fitness

Best Interests of the Child

Courts consider the “best interests” of the child when making child custody decisions. This is based on a variety of factors, including how old the child is and what their particular needs are to ensure that their upbringing is successful. Children who are mature enough to express their needs may make their wishes known through special procedures. The judge does not have to honor the child’s wishes, as they cannot choose where to live until age 18. However, a child who is deemed mature enough (there is no set age) to express an opinion about what they want may express one.

The court will also consider how each parent gets along with the child and their stability. Despite their affection for the child and the nature of the relationship, parents can be deemed unfit.

Unfit Parents

An unfit parent is not a parent whose parenting style you disagree with or personally do not like. Rather, an unfit parent is someone that the court determines cannot provide for or otherwise protect the child. Some of the reasons that a parent can be deemed unfit can include ongoing substance abuse issues, child abandonment, abuse or neglect of the child, history of violence, and untreated mental health issues.

When a parent is deemed unfit, the court has different paths that they can take to protect the interests of the child. Depending on what the court has found, they can assign sole physical and legal custody to the other parent, create a reunification plan that is contingent on meeting certain criteria (such as completion of therapy or rehab), or assign supervised visitation with a trusted third party approved by the court, or in some cases, supervised parenting time at a visitation center.

Generally, the courts want to see parents achieve success in reunification. If someone is deemed unfit by the court, that does not have to be permanent as long as they are willing to commit to improvement.

Can Child Custody Arrangements Be Modified?

Yes, child custody arrangements can be modified. You will need to file a complaint for modification in the Probate and Family Court. What you will need to demonstrate is that the family situation has changed since the original order was made to the extent that you need a modification. In other words, you must demonstrate a “significant change of circumstances.” If your former spouse begins struggling with alcoholism, or your child begins to express significant unease about going to their parent’s home, or even if the hours one parent works has changed and there needs to be a mutually agreed upon modification, these might be reasons that a court would modify a child custody arrangement.

Contact an Experienced Westborough Child Custody Attorney

If you are navigating a child custody case, understanding the different types of custody and the factors courts consider can help you prepare for the process and work toward an outcome that is in your child’s best interests. As your child’s parent, you want the best for your child. Consulting with an experienced Westborough child custody attorney is essential to protecting your rights and ensuring that your child has the smoothest transition possible during this difficult time. Contact our office today.