“Custody”, as used in a domestic relations context, is made up of two parts: Legal and physical. Where a child is born to a married couple, both parents have a natural right to both physical and legal custody. These legal parental rights can only be altered by judicial intervention, when the parents legally separate or choose to dissolve the bonds of matrimony. (Of course, the State can intervene on its own in initiative to sever or alter these legal rights in cases of allegations of neglect or abuse.)
“Legal custody” of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, medical care, etc.
“Physical custody” means that a parent has the right to have a child live with him or her.
These simple delineations are muddied by the legal options of “sole” legal or sole physical custody and joint legal/joint physical custody. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents. Some states will award joint physical custody to both parents to allow the child to spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat stable routine. One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
Now that we understand the framework of a custody question, we can discuss the process. Typically, where parents are seeking divorce, they must file a Complaint that lays out what relief they want the court to grant as part of the divorce judgment; they will include a request for custody and support of the child/ren. Many factors are considered by the court in making its determination–everything from any history of alcohol or drug dependency, to conduct and lifestyles of the parents, to their ability to communicate with each other and the child, to quality of life for the child. The standard for assessing the most suitable custodian for the child is “the best interest of the child”. Most typically, court will grant sole physical custody to one parent, and joint legal custody.
An unwed mother or father may also seek custody of a child. This is done by filing a Complaint for Custody in a local Family Court. It will involve first establishing paternity.
“Full custody” legally speaking– means sole legal and sole physical custody of the child. This is harder to achieve. The burden is on the moving party to prove why the other parent should be “shut out” of the child’s life. The court is disinclined to do this. The removal of parental rights is a separate procedure, usually brought by the state in severe abuse and abandonment situations.
Lastly, even in circumstances where a parent is given sole legal and physical custody, the courts will encourage visitation by the child with the non-custodial parent. Every custody order will be accompanied by a visitation order and schedule.
Custody hearings can be very contentious. Not only is the custody of the child at issue, but associated with the custody is the right to support. The non-custodial parent pays the larger share of the the support obligation–usually in the form of weekly or monthly cash payment to the custodial parent until the child is 18, 21 or 23 years old, depending on their status as a college student and the history of the parents’ own education levels. Child support is a percentage of the combined incomes of the two parents: 17% for one child, 25% for two, and so on.
A person would be well advised NOT to seek a custody/support order without the assistance and benefit of legal counsel knowledgeable about the laws and procedure of the Probate & Family Court. If you feel you cannot afford a lawyer, there are various agencies and organizations that may be able to provide free or low cost legal representation. http://www.masslegalservices.org is a good place to start looking (for MA residents).
If you have a question about a prospective custody application, or if you have an existing order you want modified, please contact the Matta Law offices.