Child Custody - issues relative to the care, custody, and maintenance of minor children of the parties including the award of custody and visitation to third parties as well as mult-state custody dispute resolution.
The Court awards the care, custody and maintenance of minor children of the parties based upon the standard of "the best interests of the child." The public policy applied is that dependent children shall be maintained as completely as possible from the resources of their parents, including health care coverage.
In awarding "custody" of minor children, the Court will allocate "physical custody" and "legal custody." Preferably this award will be pursuant to an agreement, or "parenting plan," of the parties. Physical custody defines with whom the child shall reside and be under the supervision of, subject to reasonable visitation in the best interest of the child. Legal custody entails 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. Both or either of these may be either "sole" or "joint." Sole custody entitles that right in one parent where joint custody entitles both parents in that right. If the parents cannot agree then the Court is forced to decide issues of custody based upon the best interest of the child standard.
Grandparents may petition the Court for visitation rights with minor grandchildren, pursuant to M.G.L. c. 119, §39D. Ordinarily a fit parent's decision regarding a grandparent's wishes to visit with a child is presumed in the best interest of the child. However, when a grandparent is denied, they may challenge a parent's decision regarding the availability of the grandparent's visitation with a grandchild. In such cases, the grandparents have the burden of rebutting the presumption that the parent's denial of visitation is in the best interest of the child.
Permanent relocation of a minor child, either from the Commonwealth of Massachusetts or to a physical location within Massachusetts but more distant from the non-custodial parent, is a frequent issue. M.G.L. c. 208, §30 limits a custodial parent's ability to relocate a minor child outside the Commonwealth of Massachusetts. The Court resolves permanent relocation issues utilizing the "real advantages test." The Court looks to:
(a) The best interests of the child, considering the effect the child's removal may have on the quality of life shared by the custodial parent and the child; (b) The relative advantages to the custodial parent; (c) The reason for the move; and, (d) The absence of any motive to deprive the other parent of visitation.
While the interests of the non-custodial parent should be considered, the fact that the removal may disadvantage the non-custodial parent's visitation interest will not be the controlling factor.
William M. Driscoll, Esq. 6 Courthouse Lane, Suite 5 Chelmsford, MA 01824