Custody Battles: How Courts Decide Who Gets The Kids
At Carbone Law Firm, we know that custody battles are among the most emotionally challenging experiences a parent can face. After over twenty-four years of practicing family law in Massachusetts, I can confidently say no two custody cases are identical.
One of the most common — and urgent — questions we hear from clients is: "How will the court decide who gets custody of my children?"
The answer centers around one guiding principle: the best interests of the child. Let us walk through what that means and how you can prepare.
The Guiding Principle: Best Interests of the Child
In Massachusetts, family courts base custody decisions on what best serves the child's emotional, psychological, and physical well-being (M.G.L. c. 208, § 31). Some of the primary factors considered include:
The child's emotional, developmental, and educational needs
Each parent's ability to meet those needs
The relationship between the child and each parent
The stability of each parent’s home environment
Each parent’s willingness to encourage a relationship with the other parent
Any history of abuse, neglect, or substance abuse
The child’s own preferences, if deemed mature enough
The court does not weigh these factors equally but evaluates them together to craft a custody arrangement that best supports the child's growth and happiness.
Types of Custody in Massachusetts
In Massachusetts, custody is divided into two key categories:
Legal Custody: The authority to make major decisions about the child's upbringing (education, health care, religion).
Physical Custody: Where the child primarily lives.
Custody may be joint (shared between parents) or sole (awarded to one parent exclusively), depending on the family’s circumstances and the child’s best interests.
Common Misconceptions About Custody
At Carbone Law Firm, we often need to dispel myths that create unnecessary fear or confusion:
Myth 1: Mothers Always Get Custody
Modern Massachusetts courts evaluate parental fitness, not gender.Myth 2: Children Can Always Choose
While a child's preferences may be considered, they are just one of many factors, especially depending on the child's age and maturity. As a child gets older, their wishes are generally given more weight, but always in the larger context of the case.Myth 3: Wealthier Parents Always Win
Financial stability matters, but emotional availability, home stability, and parenting involvement are just as important, if not more so.
How Parents Can Strengthen Their Custody Case
Over twenty-four years of experience at Carbone Law Firm has shown that parents who focus on the following are often more successful in custody disputes:
Prioritize Your Child’s Needs
Courts reward parents who show they are putting their child's well-being above personal conflicts, and have an historical record of doing so.Stay Actively Involved
Be consistently engaged in your child's daily life — from school events to medical care. Courts will often note who the child goes to when upset; lawyers will ask ‘when the child has a problem at school, which parent will s/he go to to face that problem?’ Having a history dealing with these matters is vital.Cooperate When Appropriate
Demonstrate an ability and willingness to work with the other parent, unless doing so would endanger the child. This leads to communication with the other parent, which is a subject in and of itself. However, good communication with the other parents generally consists of Identifying the problem, Describing potential reasons for the problem and then Suggesting several solutions to the problem.
Many times clients will present issues to our firm and they claim they have tried to work out with the other parent. Their evidence for this sometimes consists of emails or texts. Here, the complaining parent has no difficulty Identifying the problem, but will rarely provide reasons for the problem outside of blaming the other parent (“Our daughter never did this until last month when you …”), and if they propose a solution, it will almost always be in the form of an ultimatum (“Unless you start paying for a baby sitter, I am not going to send her back to you before 5pm.”). It's always better to make several suggestions to the other parent, mostly because the other parent can believe that whichever one they choose, it was their idea, hence they take more ownership of it over the long term.
Provide a Safe, Stable Home
Routine, consistency, and safety are highly valued by Massachusetts courts. Courts generally prize the parent who is able to show a more stable home life than the parent whose life is constantly changing or being reinvented.Document Important Events
Keep clear records of parenting time, communications, and any concerns that may impact the case.Partner with an Experienced Family Law Attorney
Working with a knowledgeable legal team like Carbone Law Firm ensures you have a strong advocate by your side.
As I am sure the reader will note, nearly all of the above-criteria are steps parents take in their child’s lives over a long period of time; these are not quick-fix solutions, but behaviors that naturally develop in the course of raising a child. The court looks not just on what parents are doing in the face of the divorce, but how they handled the child for the years that preceded the divorce. For example, if Parent A always took the child to the doctor; always took off work to care for the child when they were sick; always went to Parent/Teacher Conferences and took the child on play dates, if Parent B is served with divorce papers and only then decided to start taking the child to doctor’s appointments etc, a judge is well within their authority to note the sudden change in behavior and weigh that accordingly.
Frequently Asked Questions (FAQ)
1. At what age can a child decide where to live in Massachusetts?
Massachusetts courts may consider a child’s preference around age 14 or older, but it is only one of many factors. The child's maturity and reasons for the preference are critical. Many lawyers prize a “rule of thumb” that once the child can drive, that child can decide where they sleep at night. This is not true in every court, but some lawyers use it to guide strategy.
2. What is the difference between sole and joint custody in MA?
Sole custody grants one parent full rights (legal or physical); joint custody shares responsibilities between both parents. The arrangement must serve the child's best interests. Generally speaking, most parents have joint legal custody of their own children, but physical custody can vary from case to case.
3. Can custody orders be modified later?
Yes. If there is a material and substantial change in circumstances, custody orders can be revisited and modified by the court.
4. How does a history of domestic violence affect custody?
Domestic violence has a serious impact on custody. Courts prioritize child and parental safety, and may limit or deny custody or visitation for the abusive parent. Case las has stated that if a parent has been adjudicated to have committed domestic violence against the other parent or children, there then is a rebuttable presumption that the abusive parent should not have such custody.
5. Is mediation required before custody litigation in Massachusetts?
Often, yes. Courts encourage mediation to help resolve disputes amicably before proceeding to trial.
Final Thoughts
At Carbone Law Firm, we believe every parent deserves a fair chance to advocate for their child’s future. Custody battles can be emotionally draining, but with the right preparation and legal support, you can approach the process with confidence.
If you are facing a custody dispute in Massachusetts, contact Carbone Law Firm today. Our twenty-four years of experience in family law can help you protect what matters most — your child’s well-being.
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Serving clients throughout Massachusetts because, Nobody Should Get Divorced Alone.