Chapter 6. Custody

1. What is custody?

There are two types of custody:

• Legal custody means the right to participate in making the major decisions in a child's life, for example, decisions about religion, education, and medical treatment.
• Physical custody refers to who the child lives with.

The two types of custody can either be "joint" (shared) or "sole" (to one parent only).

• Joint legal custody means both parents have input into the major decisions.
• Sole legal custody means only one parent has the right to make major decisions.

(See Questions 7 and 8).

• Joint physical custody means each parent has time to live with and supervise the children. This arrangement can be done in different ways. For example, parents can split up the days of the week or alternate months. They can divide up the year so each parent basically has the children for one-half the time.
• Sole physical custody means the children live primarily with one parent. The other parent generally has visitation rights. (See Chapter 7).

2. Do I have custody?

If you are married and there has never been a court order about custody, both parents have joint legal and joint physical custody. Both parents have equal rights to the children. It is not illegal or kidnaping for a married parent to leave the home with a child if there has been no court order about custody.

If you are unmarried and there is no court order about custody, the mother has sole legal and physical custody. However, even though the unmarried mother has sole legal and physical custody under the law, a written court order may be necessary in certain situations. For example, in a case of custodial interference, law enforcement may hesitate to get involved where there is no written court order. (See Questions 10 and 11).

3. How do I get a court order on custody?

There are different ways to get court-ordered custody.

If you are married and want court-ordered custody, you can file a Complaint for Divorce, a Complaint for Separate Support, or a Complaint for Custody:

• Complaint for Divorce or Separate Support: The Probate and Family Court can grant you joint or sole custody in divorce or separate support proceedings. (See Chapter 8).
• Complaint for Custody: This is also started in the Probate and Family Court. This is the Complaint you should file immediately if your spouse leaves with your children and you want the children back.

If you are unmarried, a court order of custody can be obtained by filing a Complaint to Establish Paternity or a Complaint for Support-Custody-Visitation under Massachusetts General Laws Chapter 209C (this is a different form from the Complaint for Custody a married person files):

• Complaint to Establish Paternity: The court can grant joint or sole custody in this proceeding, but first the court has to determine who is the father (or find the father to be the father - this is known as “adjudicating” or establishing paternity). (See Chapter 9).
• Complaint for Support-Custody-Visitation under M.G.L. Chapter 209C: The court can grant custody with this Complaint if the father has already been

found to be the father, or he has signed a voluntary acknowledgment.

All of the above Complaints are started by filing the right one for your situation at the appropriate Probate and Family Court and then serving it and a “summons” on the other person. These forms are available at the Probate and Family Court. (See Chapter 12) (Samples of all of these forms can be found in the Appendix, except for the sample divorce Complaint, which is found in Appendix E in Chapter 8.)

You can then file a Motion for Temporary Orders. Temporary orders can provide for temporary custody before the case is finalized and a permanent order is entered. (See Chapter 6 Appendix for a sample Motion for Temporary Custody.) You should think about filing a Motion for Temporary Orders if you cannot wait for a trial on the merits.

Temporary custody can also be obtained for both married and unmarried people under a 209A protective order in District Court or in Probate and Family Court. (See Chapter 5).

4. How does a 209A protective order affect custody?

A 209A protective order can grant temporary custody. If, however, there has already been a custody order in a Probate and Family Court, then a District Court or a Superior Court cannot change that Probate and Family Court custody order through a 209A protective order. (When it comes to custody, a Probate and Family Court order basically "trumps" a District Court order, because a District Court cannot change a Probate and Family Court custody order, but a Probate and Family Court can change a District Court custody order.) A Probate and Family Court 209A protective order can change a prior custody order made in Probate and Family Court case.

For example:

Bob and Gail have children. In January, Bob gets temporary physical custody of the children in Probate and Family Court under a paternity or divorce case. In February, he punches Gail who has to go to the emergency room. Gail then seeks a 209A protective order.

• If Gail goes to District Court:
  The District Court can issue an order to protect Gail (for example, order Bob not to abuse or contact her) but cannot give Gail custody under the 209A protective order. Gail needs to change the custody order in Probate and Family Court.
  Note that the District Court in this situation may try to send Gail to Probate and Family Court for the 209A protective order "since children are involved." If there is an emergency, however, and Gail feels she will not be safe if she waits to get to the Probate and Family Court, she should urge the District Court to give her a 209A protective order with the protection provisions.
• If Gail goes to Probate and Family Court:
  The judge can issue a 209A protective order changing custody, and giving it to Gail.

5. How else does a 209A protective order affect custody?

If there is a 209A protective order, the parents should not have joint legal custody. It is difficult to raise children together if contact is not allowed. Even if "no contact" is not part of your order, a 209A protective order demonstrates an abusive relationship - not the best kind for cooperating and communicating about children.

The law says that the judge must make "written findings" if ordering shared legal or physical custody when there is a 209A protective order against one married parent. This means that if you have a 209A protective order against your husband, the court should not allow you to share legal or physical custody of your children unless the judge puts in writing why that is an appropriate decision. (The specific law we are talking about, "Chapter 208 Section 31," does not technically apply to unmarried people. However, another law, "Chapter 209C Section 10," says that unmarried parents need the "ability to communicate and plan with each other concerning the child's best interests" for joint custody.)

6. If I have custody, can my abuser see our child's school and health records?

If any of the following circumstances are true then your abuser may not have access to school records:

• he has been denied legal custody of the child based on a threat to the safety of the child or to the custodial parent;
• he has been denied visitation;
• he has been allowed only supervised visitation; or
• his access to the child or to the custodial parent has been restricted by a temporary or permanent protective order unless said protective order, or subsequent modified order specifically allows access to the information.

The school should remove all address and telephone information from any information provided to the non-custodial parent.

This law only applies to school records. Your husband or ex-husband has the right to have access to medical or hospital records or other health records of your child. If, however, there has been an order for him to leave your house, or not to interfere with your liberty, or if there is a safety issue, you can ask that any part of those records that contains your address not be disclosed. (It is presumed that unmarried fathers would be treated the same by the court.)

7. What are some things to consider with joint legal custody?

Joint legal custody depends on parents being able to communicate and cooperate. Joint legal custody is not workable if the relationship is hostile or violent or if there is a 209A protective order. Abusers can use the role of joint legal custodian to second guess or harass you about every decision.

Joint legal custody, however, means only that both parents have a say in making big decisions, for example, whether a child should go to private school. It does not mean you have to just do what the other person wants. If the parties cannot agree on an issue, the dispute can be brought to court, although it might be more helpful to try mediation or some type of alternative dispute resolution service first (you could start by looking in the yellow pages). If it is a minor issue, for example, what to pack for lunch, the judge will not be pleased with either party for coming to court.

8. My abuser and I have joint legal custody. He tries to tell me what our children should wear, how their hair should be cut, and what toys they can have. He says he will take me to court if I do not do what he says. Can he do that?

He can go to court, because everybody has that right, but he is unlikely to get very far with the judge. If you are the parent with physical custody, you are the one who makes the day to day decisions: for example, what the children will wear, eat, and watch on television each day. The children's father can dress, feed and entertain the children as he likes on his visitation days. If he goes to court and asks for an order telling you to give them different hair cuts, the judge is likely to get angry for the waste of the court’s time. Joint legal custody is intended to give a parent the right to help decide big issues, for example what religion the child should be raised, or whether the child should have elective surgery or not. If you and he cannot decide those issues together, one of you can bring the issue to court for the judge to decide.

If you are constantly harassed over little decisions, you may consider modifying your court order to sole legal custody. (See Questions 17 and 18).

9. Can he take the children like he has been threatening to do?

If you are the legal custodian it is a crime for the abuser to take the children if he does not have court-ordered custody. The crime is called "parental kidnaping."

You are the legal custodian if you are:

• an unmarried mother and no one has been to court to adjudicate paternity (legally declare someone the father);
• an unmarried mother who was granted custody as part of a paternity case in court (or through a 209A protective order);
• an unmarried mother where there has been a paternity adjudication but no custody order (for example in a case brought by the Department of Revenue for child support); or
• a married or divorced mother who has court-ordered custody (through a divorce, separate support, complaint for custody, or 209A protective order).

Remember: It is not a crime for a married person to leave the home with the child of the marriage if there has been no court order concerning custody.

Note: if a court order gave your abuser joint legal custody but not physical custody, he can still be guilty of “parental kidnaping” or "custodial interference." If you have court-ordered physical custody, and he takes the children without your permission when it is not his visitation time, or if he refuses to return them from a visitation, he could be found to be in contempt and possibly charged with a crime.

10. What if we are married and there has been no court order and he does take the children?

If you are married and there has been no previous court order, he has not committed a crime. His taking the children is not kidnapping. However, you can:

• Go to Probate and Family Court and file a Complaint for Custody and ex parte emergency Motion for Temporary Custody to get the children back. "Ex parte" means you are filing a motion to get a hearing before a judge without telling the other party. Tell the judge your motion is “ex parte” because of the emergency involved. Normally, your abuser would need to be properly "served" with a custody motion (so he would be aware of the court hearing ahead of time and could appear).

11. What if it is kidnapping?

If there has been a kidnapping (see Question 9), you can:

• Take out criminal charges. Criminal charges can be filed at the criminal clerk's office in District Court or by the police. You should also notify the District Attorney's office of the situation. (See Chapter 4).

NOTE: If you are an unmarried mother without a court order, the police may not immediately pursue the matter. You may have to go to Probate and Family Court to get a custody order to show the police before they start actively handling the case.

• Ask for a Writ of Ne Exeat or Writ of Habeas Corpus in Probate and Family Court to prevent him from leaving the state with the children and to allow the sheriff to apprehend him.
• If you have a custody order from court, you can also file a Complaint for Contempt against the fleeing parent. There is an example of a Complaint for Contempt in Appendix E of Chapter 7. He will have to explain why he violated the order at the contempt hearing. At the contempt hearing, the judge will issue an order about where the children should now live. The judge will also decide whether and how the fleeing parent will be punished.
• Contact a private attorney or legal services.
• You could also try to contact the local media (newspaper, tv, and radio stations) and/or government officials (your mayor, state representative, or local congressional office) to publicize your situation and get assistance. The National Center for Missing and Exploited Children is also helpful. Their number is 1-800-843-5678.

12. I want to move out of state with my children. May I?

You should check with a lawyer if you plan to move the children out of state. The answer to this question is beyond the scope of this manual. Whether you may move or not depends on the specific circumstances of your case. Some important considerations are:

• why you want to move out of state;
• whether the move will improve your and/or the children's quality of life;
• whether or not you are married to the father of your children;
• whether you are divorced or in the process of seeking a divorce;
• what kind of relationship the other parent has with the children;
• whether there are any prior court orders involving the children;
• whether you suspect their father has filed, or will file, for custody; and
• many other factors.

If the other parent will not agree, you may need to get court permission to move to a new state. The court weighs many factors including those listed above in deciding whether to allow you to move the children out of state. If the children have been removed without the father's written permission or court permission, there is nothing to prevent the father from going to court seeking custody and an order that the children be returned to Massachusetts.

13. How does the judge decide who should get custody if parents are fighting over custody in court?

The standard is what is in "the best interest of the children." The judge will look at many things to see what is in the children's best interest, such as:

• Will the children have an adequate place to live?
• Will the children be well-fed and clothed?
• Will the children have appropriate supervision?
• Will the children receive the emotional support they need?
• Which parent has been taking care of the children?
• Does either parent abuse the children?
• Does either parent abuse drugs or alcohol?
• Does either parent expose the children to domestic violence?

14. Will his abuse of me be part of the judge's custody decision?

Judges are required to look into issues of abuse in making custody decisions. This is because research shows that exposure to domestic violence has a negative effect on children. Children who witness domestic violence can be harmed psychologically and developmentally. Judges must look at the other parent's abuse and violence toward you (even if he has never hit the children).

Massachusetts law states that there is a rebuttable presumption against awarding sole custody, shared legal custody or shared physical custody with a parent who the court finds has perpetrated a “pattern or serious incident” of abuse against the other parent or child. The presumption against custody would apply in divorce, separation and paternity proceedings.

The presumption is not triggered by the issuance of a 209A restraining order, or even a series of orders. The Probate and Family Court must independently determine that a “pattern or serious incident” of abuse has actually occurred. It should be noted that this presumption does not create a presumption against the award of visitation to the abusive parent.

You can have witnesses testify about the impact of the domestic violence on

your children. For example, your child's therapist or day care worker might know about the trauma or upset your child has gone through watching or hearing you be abused.

15. He said he'll tell the judge something bad about me. Will that go against me?

Judges want to know about whether either parent has a problem that affects his or her ability to be a good parent.

If both parents are telling different things, (for example, you are telling the judge that he abused you in front of the children, and he is saying you are unfit or crazy or drink too much), the judge may want more information from a neutral third party.

16. How do I show the judge that the children will be better off with me?

If you want custody, you should think about people who can give the court information about your relationship with your children and your ability to meet your children's needs. Teachers, day care workers, therapists, doctors, and other people who have watched you parent might be able to give useful testimony. They can be "subpoenaed" or brought to court. You might get an "affidavit" (a sworn statement in writing) from them rather than their actually appearing in court. At “motion hearings” judges generally want affidavits rather than witnesses speaking in court. There is not a lot of time at motion hearings to explain your position. You will have your chance to present all your evidence at a trial.

If you think there needs to be an investigation about custody by a neutral third party, you can ask the judge to appoint a "Guardian Ad Litem" (GAL) to look into the matter. You can make a motion asking the judge to appoint a GAL or you can respond to your abuser's request for custody with this request. The cost of the GAL can be split by the parties, paid by one party, or, in some cases, paid by the court.

The GAL (who is usually an attorney or mental health professional) should talk with various people who are involved with your child. The GAL may also talk with your child, depending on his or her age. You should cooperate with the GAL and give the names and phone numbers of people who are familiar with your child and who can support your position. The GAL will report to the judge with recommendations about where the child should live.

Be aware that the GAL could disagree with your position and recommend something you do not want to the judge. You should think about the strength of your case before asking for a GAL to be involved. Judges do not always go by the recommendation of the GAL, but they usually weigh it heavily.

You should know that the judge on her own may order an investigation by a GAL, or may appoint other persons to look into the issues surrounding custody. (See Question 17).

17. Where else could the judge look for more information in a custody case?

The judge may order an investigation even if neither one of you asks for it. The investigator can be a "Guardian Ad Litem" (GAL), as discussed in Question 16, a clinician connected to the court, or a Family Service Officer who works in the court.

Like a GAL, this person will investigate and report back to the judge with a recommendation about what is in the child's best interest. Even if you did not ask for this, you should cooperate and provide names and phone numbers of people who can support your position.

The judge may also appoint an attorney to represent the child. (An attorney for the child has a different role than a GAL. The attorney has the child for a client and is supposed to represent the child’s wishes, whereas the GAL investigates using the "best interest" standard and can recommend something the child may not want.)

The judge may also request that the Department of Social Services (DSS) take temporary custody of your children if he or she believes them to be at risk. (See Chapter 10). If DSS is already involved, the judge may want to hear from your worker.

Some courts may use "Court Appointed Special Advocates" (CASAs) to investigate your child's situation. CASAs are volunteers from the community who are trained to investigate and make recommendations to the judge.

18. What if I want to change a custody order?

If the court order is what is called a "judgment,” you can file a Complaint for Modification. You need to show a "substantial and material change in circumstances" since the original custody order. There needs to be a reason for the change. The court will want to know if there is something different since the last order was made which affects the issue of custody. After filing the complaint, you can file a Motion for Temporary Orders if there is an immediate situation that needs to be resolved (for example, he has started using drugs, or is involved in another battering relationship, and your child is in danger).

If the court order is a "temporary order," you can file a motion asking for a change. Your motion should say why the change is necessary. (See Appendix D in Chapter 7 for a sample Complaint for Modification and Appendix F in this chapter for a sample Motion for Temporary Custody.)