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Complete Guide to Child Custody and Move Aways – Boston Child Custody Lawyers

How Are Child Custody Rights Determined in Boston and New Bedford, Massachusetts?

There are two types of child “custody” that the Boston court deals with when ordering for the care of a child – these include “legal” custody which includes the decision making capabilities of a caretaker, and “physical” custody which deals with the day to day care of a child.  Visitation refers to the time a parent who is not the “primary” caretaker spends with a child.  These apply to all U.S. jurisdictions and Boston is no exception.

Child custody and visitation is typically the most important issue that a family law litigant and their attorney face during their divorce, annulment or paternity matter.  In Massachusetts – Boston and New Bedford included, the Probate & Family Court has exclusive original jurisdiction in ordering for the care and custody of a child stemming from divorce, annulment, and separate support cases.  The probate court is empowered to make orders that are necessary to protect children while a divorce is pending, and it may also make temporary orders.  Persons that may bring an action for custody include parents of the child and the next friend of the child.

The probate court also has the power to deal with a common situation where a parent wishes to move out of Massachusetts with a child after a divorce.  The law requires the consent of the child if they are of a suitable age to have their voice heard.

Of particular interest to many Boston child custody attorneys is the Massachusetts set of laws that is an offshoot of the Uniform Child Custody Jurisdiction Act (UCCJA) (the uniform laws set by the federal government for states to adopt as part of their statutory scheme).  The Massachusetts set of child custody jurisdiction laws are modified to the extent that Massachusetts is one of the only states, if not the only state, that does not follow the federal mandates in this regard.  These set of laws are important when the issue of child custody is prevalent where a parent has moved with a child from or to Massachusetts.  As an example, when parents obtain child custody orders in Virginia and then later one parent moves to Massachusetts with the child, would it be proper for Massachusetts courts to modify the Virginia order?  This complex question is at the crux of these set of rules and procedures.

During the pendency of divorce and separate support matters, either party may petition the Boston, Middlesex, Norfolk, Plymouth or Bristol family court for child custody and visitation orders.  There are two types of custody at issue in divorce cases: legal custody and physical custody.  Legal custody generally means the right to make decisions about a child’s health, safety, education, religion, care taking and so on.  Physical custody means the actual physical care of a child on an everyday basis.  Visitation rights may be ordered as a part of the court’s physical custody orders.

LEGAL CUSTODY AND PHYSICAL CUSTODY PRESUMPTIONS IN DIVORCE

In a divorce action, there are certain presumptions that arise which are extremely important to understand.  The first presumption is that both parties have equal rights and responsibilities.  Second, there is a presumption that joint legal custody should be ordered.  This means that both parties share equally in decision-making for their child.

Finally, and importantly, there is no presumption that parties should share joint physical custody in every case.  This lack of presumption is different than the laws of many other states.  In most cases one parent will be given primary physical custody and the other parent will be granted visitation rights.  The court may restrict, limit or eliminate visitation if such would be in the best interests of a child or children.

FREQUENTLY ASKED QUESTIONS ABOUT CHILD CUSTODY IN MASSACHUSETTS

What is a Parenting Coordinator?

A parenting coordinator is a person selected by the parties and/or appointed by the family court to assist parties in resolving parenting disputes without court involvement.  The recent Bower case in Massachusetts severely limits the court’s ability to appoint a parenting coordinator.  There is currently a draft proposed Standing Order that will address this issue.

What types of custody and visitation cases has Wilkinson & Finkbeiner handled?

Our firm has handled countless child custody cases in both Boston and New Bedford, MA.  Custody matters stem from divorce, paternity, separate support and annulment cases generally, as well as modification proceedings, and we have successfully represented clients in all types of custody matters.  Our child custody attorneys in Boston have represented clients from the simple task of drafting an agreement to be filed with the court to extremely complex “removal” (i.e. “move away”) cases.  With well over 10 years of family law experience, David Wilkinson has litigated, negotiated and resolved nearly every imaginable issue relating to child custody, visitation, child support and parenting issues.

In one recent case, our firm was able to successfully block a parent from exposing the parties’ child to another person engaged in a relationship with that parent.  We aggressively pursued the action to ensure the child remained safe, which is exactly what our client wanted.  In another recent case, our firm represented a parent that was able to secure very specific visitation rights even though they lived out of state.

How does the court determine who should have custody?

The courts are required to look at a number of important factors when determining custody.  Currently, judges have an awful lot of power to make orders that they believe are in the best interests of a child, which is always the primary focus of the presiding judge.  Other important factors including whether there is a history of domestic abuse or child abuse, whether one parent is dependent on alcohol or drugs, the stability of each parent, the manner in which each parent facilitates the other parent’s relationship with the child, and so forth.

What is a removal case?

A “removal” case is often also referred to as a “move away” case, wherein one parent seeks to remove a child from Massachusetts to another state or country.  These are very difficult cases, and the court is required to find some advantage for the child in the move.  There are a number of important cases that dictate what the judge must look for and consider when deciding whether or not to allow the removal.

These cases should be considered in advance of filing.  We have extensive experience with removal cases and if you are considering moving or defending a move, contact our office or another experienced family law attorney right away.

What is a Guardian ad Litem (GAL)?

A Guardian ad Litem (GAL) is a court-appointed person that investigates and provides a recommendation for the court regarding a parenting plan or other custody issue.  A GAL may be an attorney, a child psychologist, a psychiatrist, a probation officer, or other similar person.  The recommendation of the GAL usually carries a lot of weight, but the court still has the ability to enter orders in contrast to the GAL’s recommendation (which our firm has been successful in doing).

What is an ARC attorney?

An ARC attorney is a volunteer attorney appointed by the court that represents a child or children in a particular custody matter.  The ARC attorney advocates for the best interests and wishes of the child.  ARC attorneys are often appointed in “high-conflict” cases or in cases where one parent’s parental rights are sought to be eliminated.

What is the timeline for custody cases in Massachusetts?

Whether your child lives in Boston, Norfolk County, Middlesex County, Plymouth County or Bristol County will help answer that question.  Some counties handle cases quicker than others.  It also depends on the type of case you have.  For example, divorce cases involving custody may take longer than a simple custody matter.

Generally, a custody/visitation case is initiated by the filing of a complaint.  The other party is served and files an answer, and subsequent hearings are set.  A status conference and pre-trial hearing will be scheduled prior to the scheduling of a trial.  Uncontested cases where parties have an agreement can take a matter of weeks in the quickest of cases.  Where no agreements are reached it can take well over a year to reach the conclusion of a case.

What are the most prominent child custody statistics in Massachusetts?

There are not many helpful child custody statistics available for review.  The Massachusetts Probate and Family Court does not keep relevant statistics for this category.  However, some national statistics and our experience in custody cases might be helpful to you.

In 2002, there were 21.5 million children living with one of their separated parents.  Five out of six were with the mother, and one out of six lived with the father.  There were 13.4 million parents in 2002 that had custody of a child or children.  Of those 13.4 million, only 7.9 million had some sort of agreement or order for their parenting plan.

The overwhelming majority of children live primarily with the mother.  The lends to the perceived bias that courts will more often grant the mother custody.  In some ways this perceived bias is accurate.  Young children are often placed with the mother for nurturing reasons, or due to the fact that the mother was the “stay at home” parent while the other parent worked.

Can I modify a custody order?

Yes.  A parent wishing to modify a custody order must file a “Complaint for Modification”.  The parent seeking to modify the orders must show a material and substantial change of circumstances warranting the change.

Click here for more information about our representation in child custody matters.

Please keep in mind that the law requires us to inform potential clients that past representation involving a matter does not guarantee success in your case.

Move Away Cases in Massachusetts – Where one Parent Wishes to Relocate

We live in a time when society is increasingly mobile.  It takes only half a day to fly across the entire country on an airplane, and there are various other methods of transportation that makes travel easy.  Because of that, families and individuals are more frequently moving to different areas of the country, or even out of the country, for reasons such as work, life balance, to be near family, and so forth.  This increase in mobility and high rate of relocation has created a difficult issue for Probate and Family judges to navigate – what to do when one parent wishes to move out of Massachusetts with a child and away from the other parent?

These cases are called “move away child custody” cases, which are extremely complex to deal with and our office has significant experience handling these matters.  As an example, please see these relevant cases that Mr. Wilkinson and his office have successfully completed.  There are a few relevant cases that provide some brevity to what a moving party should include in their motion papers to request a move.

How is a Move Away Case Started?

A move away case is started by the filing of a complaint or a motion for temporary orders.  The document filed depends on whether there is already an open case, whether there is a divorce judgment already entered in the case, whether a case is pending in the Probate and Family Court, and so forth.  If nothing is filed, an underlying divorce or separate support, or paternity case must be filed.  Then the party requesting to move can file a motion for temporary orders.  If there is already a divorce or like judgment, the party wishing to move will file a Complaint for Modification of the divorce agreement or judgment.  Click here for more information about post-judgment motions.

What Information Should be Included in a Move Away Motion or Complaint?

The information that should be included in a motion or complaint to request a move away to another location with a child depends on the circumstances of the case.  For example, if a mother wants to move out of state and the father hasn’t seen the child in a number of years, the request probably does not have to be significantly detailed.  It is likely the court would grant such a request.

What is the Legal Standard for a Move Away Request?

The legal standard is always whether the move is in the best interests of the child or children.  This is the key component that every Family Court judge is required to weigh the request against.  The best interests standard has broad meaning on purpose, and might include any number of relevant factors.  For example, the court may look at the reason for the move, the communication between parents, the amount of time each parent spends with the children, what opportunities are there for the children in the new area, and so forth.  There are literally countless factors the court might consider when weighing if a move is in a child’s best interests.  The analysis is very case specific.

What are the Relevant Cases that Deal with Move Away Issues?

In Massachusetts, there are several important cases that most judges are quite familiar with.  A list of these cases and general holdings are listed below:

Rosenthal v. Maney 51 Mass. App. Ct. 257 (2001)

Because “Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move,” case outlines the different standards required by a request for modification of custody and a request to relocate, and details the necessary considerations in a request to relocate. These considerations include:

  • In weighing the factors to be considered, “the first consideration is  whether there is a good reason for the move, a ‘real advantage.'”  Yannas, supra at 711. This is determined by assessing “the soundness for the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation . . . .”
  • Whether there is a good, sincere reason for moving.
  • Whether the child’s quality of life will be improved.
  • What effect the move will have on child’s association with noncustodial  parent
  • Whether there will be an effect on child’s emotional, physical, or  developmental needs.
  • The custodial and noncustodial parent’s respective rights to parenting the child.

Yannas v. Frondistou-Yannas  395 Mass. 704 (1985)
In detail, outlines how the best interests of the child are to be determined in deciding a case in which one parent who has sole physical custody wants to move out of state.

Mason v. Coleman  447 Mass. 177 (2006)
Applying the “best interests of the child” test, the court determined that the mother would not be permitted to move out of state.  Reasoning, in order for a parent who shares joint physical custody to move out of state, s/he must meet a higher standard than a parent who has sole physsical custody. “The importance to the children of one parent’s advantage in relocating outside the Commonwealth is greatly reduced.”

D.C. v. J.S.  58 Mass. App. Ct. 351 (2003)
“Applications for court decision in cases in which a parent seeks to relocate within the Commonwealth should not be routine but are proper only where the relocation would evidently involve significant disruption of the noncustodial parent’s visitation rights and the parents cannot agree.” The court will routinely apply the same factors to analyze the move request as if the parent was relocating out of state.

Smith v. McDonald , 458 Mass. 540 (2010)
“Permission to relocate… is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to determine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2 , the mother is the child’s only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child.”

WHAT TO LOOK FOR WHEN CHOOSING A CHILD CUSTODY LAWYER

Choosing the right divorce and custody lawyer can be a difficult task.  There are a lot of family law attorneys throughout the Commonwealth.  Some are outstanding attorneys and some are not.  We always tell potential clients to interview several attorneys to find the right attorney that has just the right combination of knowledge, experience, communication skills and track record.  Ask the attorneys you interview about their experience with cases like yours.

The attorney you choose should also “mesh” well with your personality.  Your attorney should have clearly defined goals.  Your attorney should also explain to you the likely result of your case ahead of time, while explaining what can happen at various stages of your case.

Your attorney should clearly set forth his or her billing practices.  The total cost of cases almost always depends on the complexity of the case and the other party’s conduct.

Whether you have an uncontested child custody situation or a situation where custody and visitation will be hotly contested, or whether you have a simple or complex custody and visitation case, it is imperative that you hire an experienced, seasoned attorney that understands the intricacies of these matters.  Our lawyers are highly experienced Boston child custody advocates and are standing by to answer your questions today.  Call or email us at your convenience.

Our firm serves all courts in Suffolk, Middlesex, and Bristol County, including the Boston, New Bedford, Fall River and Taunton courthouses.



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