Splitting up with your significant other when children are involved is a harrowing, life altering situation that will affect all who are involved.

Whether you are married or not, we all hear the word custody pop up when couples decide to split up and have children.

However, many are perplexed regarding about the meaning of “custody” and how it affects their parenting when certain rights are given or taken away by the courts.

At Bentley Law Group, we know how important a custody battle is from many years of providing caring and empathetic services to our clients.

Custody has many meanings in the Commonwealth of Massachusetts, and a thorough explanation is necessary to help navigate these choppy waters that Bentley Law Group navigates every day for our clients.

What is custody?

Custody is the legal responsibility for the care and control of your minor child. The judge may give custody of your child to one or both parents. There are two types of custody: legal and physical.

• Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care and religious development.

• Physical custody deals with whom the child will live with on a day-to-day basis.

What options are there for legal custody?

A judge may award one parent sole legal custody or both parents shared legal custody.

• Sole legal custody means one parent will have the right to make major decisions about the child’s well-being, including matters of education, medical care and religious development.

• Shared legal custody means that both parents have the right to take part in major decisions about the child’s well-being.

What options are there for physical custody?

A judge may award one parent sole physical custody or both parents shared physical custody.

• Sole physical custody means the child will live with one parent and be under that parent’s supervision. The other parent will be allowed to have visitation with the child, unless the judge decides that visitation would not be in the best interest of the child.

• Shared physical custody (also called joint custody) means the child will split his/her time between both parents’ homes. The time will be split so that the child will have a lot of contact with both parents.

What is the difference between custody and visitation?

Visitation allows a parent to visit with his/her child. How often the visits take place, where the visits take place, and whether or not the visits need to be supervised by another adult, will all be determined by the court.¹

Unlike legal custody, visitation does not give a parent the right to make major decisions about the child’s well-being, including education or medical care matters. A parent must have either sole or shared legal custody in order to make those decisions.

Unlike physical custody, a child will not live long-term with a parent who has visitation rights. However, the child may be able to have overnight, weekend, or even longer visits with the parent, depending on what the judge decides.

Who has custody if there is no custody order in place?

If the parents are married and have not gotten a custody order, both spouses automatically share legal custody of the child until a judge says otherwise. This means that both you and your spouse have the right to make major decisions about your child’s life.

If the parents were never married, and there is no custody order in place, the mother has sole legal and sole physical custody of the child unless a judge orders otherwise. Unlike most other states, this is true even if paternity (legal fatherhood) has been established by the father.

Paternity can be established by signing and filing a voluntary acknowledgment (usually done at the hospital at birth) or by a judge’s order after either parent files a paternity petition in court. However, as mentioned above, once paternity is established, the mother is still considered to have custody, unless and until the father files for, and receives, shared or sole custody in court.

Custody And the Home

Whoever gains primary custody of the children may have certain advantages, and this is another reason why you might want to take your custody battle seriously.

Of course, the child’s best interests are always the top priority for any Massachusetts judge, and in some cases, it may be in their best interest for property to be handled in a certain manner.

The Primary Custodian Often Gets the Family Home

If you gain primary physical custody of your child, it is likely that you will retain ownership of the family home. This is because judges in Massachusetts often want to make this period as easy as possible for children.

Moving out of the family home can cause additional trauma for them, and their home may be nearby many helpful sources of support, such as a familiar park, their school, or a best friend.

A common scenario is for the “dependent” spouse to retain the family home, receiving child support payments from the other spouse while acting as the primary guardian. This is because the dependent spouse likely spent more time with the children while acting as a “stay-at-home” parent.

Spending more time with the child likely strengthened the relationship, making it more likely for a judge to grant them primary custody. In addition, the dependent spouse may not have the necessary funds to purchase a new home, adding to the likelihood that they will be allowed to continue living in the marital home.

The Court Can Order the Delay of a House Sale

In some cases, the court can order that the sale of a family home be delayed until after children have graduated or turned 18. Even though one spouse may receive sole ownership of the family home, the principles of equitable distribution may make this arrangement unfair. Especially in the case of a dependent spouse, they may have no other assets to “trade” in exchange for ownership of the family home. In this case, they may be forced to sell the marital home and split the proceeds with their ex. However, this can be delayed until after the children are ready to live on their own.

At Bentley Law Group we go the extra distance for our clients to win their custody battles.

Whether you want parenting rights, legal or physical custody, please give our firm a call.

You need a seasoned attorney fighting for you and your children.