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Wednesday, April 6, 2016

4 Common but Incorrect Assumptions about Legal Custody in Massachusetts: Assumption 4 – Presumption of Shared Legal Custody

Guest Post Series: Attorney Nicole K. Levy of Stevenson, Lynch & Owens Explores Massachusetts Law in Search of a Clear Definition for "legal custody" in Massachusetts.

There are few family law issues in Massachusetts that inspire more head-scratching confusion and incorrect assumptions than "legal custody". Unlike physical custody, legal custody is an abstract idea that purports to embody a parent’s right to participate in a child's major life decisions. In this blog series we examine four common assumptions about legal custody in Massachusetts and attempt to answer the question: what has a parent who has been awarded legal custody really received?

Assumption 4. Shared Legal Custody is Presumptive 

Finally, an assumption about legal custody in Massachusetts that is supported by some law! The Massachusetts divorce statute does indeed make shared legal custody for married parents presumptive at the temporary order stage:
[U]ntil a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.
However, nothing in the statute says that shared legal custody is presumptive for parents when they finally get divorced. Despite the statute’s limitation to temporary orders affecting still-married parents, it is fair to say that Massachusetts probate court judges carry a heavy preference for granting shared legal custody to divorced parents. Perhaps the absence of a clear statutory presumption in favor of shared legal custody for divorced parents is irrelevant, given the practical reality that most divorced parents end up with shared legal custody anyway. As a divorce practitioner, however, there remains something unsettling about judges reaching legal decisions based on habit or assumption rather than clear legal authority.

On the other hand it is unquestionably true that there is a presumption against shared legal custody in cases involving unmarried parents. The Massachusetts unmarried parent statute unambiguously limits shared legal custody at all stages of the proceedings, as follows:
In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement ... or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings … and have the ability to communicate and plan with each other concerning the child's best interests.
The statute’s requirement that the court make an affirmative finding before ordering shared legal custody for unmarried parents is almost stunningly unambiguous for a Massachusetts lawyer who is used to wide-open, practically non-existent legal standards such as, “custody shall be based on the best interest of the child”. In the sea of uncertainty surrounding legal custody in Massachusetts, M.G.L. c. 209C § 10 alone provides a meaningful, legal standard that parties, lawyers and court can actually follow. The clarity is refreshing, regardless of how one feels about the substance of the law.

Previous Post: Assumption 3 – The Shared Custody “Veto Power”

Next Post: What does Legal Custody Really Mean? (Coming Soon)

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Stevenson, Lynch & Owens, located in Hingham, Massachusetts.

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