Skip to main content

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.


Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day