In a child custody dispute between parents in Massachusetts, a judge will award custody based on what it deems is in the “best interest of the child.” The law requires judges to make their custody decisions by awarding custody to the parent whom he/she decides can best meet the child’s needs. When considering the happiness and welfare of the child, the judge shall take into account whether or not the child’s living conditions (both past and present) adversely affect his/her physical, mental and/or emotional health.
There are two types of child custody: legal custody and physical custody. Legal custody means that both parents can make certain decisions regarding the children. When married parents file for divorce/custody, they automatically have temporary shared legal custody of their children. Physical custody means the parent with whom the child resides. Physical custody of a child provides the parent with the ability to make daily, every day decisions regarding the child. Orders of both legal custody and physical custody can be sole (only one parent) or joint (both parents). A court can award temporary sole legal and/or physical custody to one of the parents if it makes findings that temporary shared legal/physical custody is not in the child’s best interest.
When parents cannot agree how to split or share custody of their children, a judge must then make the ultimate custody decision. The courts equally consider the wishes of each parent who requests custody. The welfare of the child, not the wishes of the parents however, is the main concern of the court. The age of the child is also a consideration in deciding which parent will be granted custody. A child of approximately fourteen years of age may be considered by the court to have reached a sufficient age to make an intelligent choice about with whom he or she prefers to live. While a child’s preference is carefully considered by the judge, it is not however binding on the court.
The court can change custody, according to the best interests of the child, at any time until a child reaches the age of eighteen.
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