Divorce Attorneys Roslindale

A major issue in a divorce, is who will the children live with.   Joint custody is an award of the child's legal custody to both parents with provisions for his or her principal place of residence.  Legal custody is the right to make important decisions with regard to the child's education, healthcare, and religious affiliation.   Some feel that the mother is always awarded physical custody of the children; but this is not always true. Although traditionally it was presumed that young children were better off living with their mother, more courts are allowing the father custody of the children if the father so seeks custody.  The court uses the as its standard to  look out for the "best interests of the children. "  You will hear this phrase often if you are a parent getting a divorce.   Due to the change in the traditional roles over the years, it is no longer always the mom who stays home with the children.  Nowadays, the dads are often the principal nurturing parent.   The court will look to the history of the prior caretaking of the children, to make its determination of custody.  Unfortunately, sometimes a parent will create a custody battle due to revenge or greed or in order to avoid making child support payments to the custodial parent.  However, if the parents are mature and are thinking about the children's needs rather than their own, this can often be kept to a minimum or even avoided.  It is highly recommended that persons going through a divorce obtain the consultation of their own individual therapist or private counselor to get themselves through the process in an emotionally healthy manner.  However, even the most amicable divorce is difficult for the children.  It is important for the parents to give consideration to the preference of the children, especially if they are older as to where their preferences lie.   

HOW DOES A THE COURT DETERMINE CUSTODY

Under Massachusetts Law, unless there is a court order otherwise, married persons have equal rights to the custody of the children.  Under the law, there is no assumption that either the father or the mother take custody of the child in the event of a separation or divorce.  The old "Tender Years Doctrine" that a child is assumed to be better off with the mother, has been rejected by Massachusetts law.

Unmarried parents are in a different situation, the mother has sole legal and sole physical custody of the child in the absence of a court order.

The Judge must base custody on what is in  "the best interests of the child" standard in Massachusetts.  This means the Judge looks at all of the circumstances to make its decision on what would be best for the child.  In other words, what does the mother offer and what does the father offer.  Often the Judge will look at things such as how the child is doing in the current living situation.  The Judge will look at the child's performance at school and the attendance record and the quality time that the parent can spend with the child.

At NICASTRO LAW, we can advise you as to what the Judges are looking for when making decisions and what matters are important to the courts and which matters are not even considered.