Child Custody & Visitation Lawyer

Child custody and visitation rights are commonly the most hotly contested issues in a divorce matter where the parties cannot agree on where the children will live and when the children will see their parents. These cases can involve accusations from either parent of domestic abuse, sexual misconduct, abandonment, threats of physical violence, and use of drugs or alcohol that poses a danger to the health and welfare of the child.

Like most courts, Massachusetts favors joint legal custody of the children so that both parents participate in the major decisions affecting the child’s welfare and happiness. Visitation by the noncustodial parent is a right that may only be restricted if that parent’s conduct poses a risk to the health or safety of the child.

Child Custody Attorney

Traditionally, there are two types of custody—physical and legal. Historically only one parent maintained physical custody of the child since the child would have a set location where he or she would regularly sleep, eat, go to school and engage in school and community activities.  The parents usually share legal custody.  However, social and cultural dynamics have evolved so that the children often spend equal or near equal time in each parent’s household creating a shared parenting arrangement. The types of custody are described below:

• Physical Custody-Where and with whom the child will live after the divorce or during the separation. The noncustodial parent has visitation rights, which may be restricted or subject to supervision if there is evidence of abuse, drugs or alcohol, or physical violence.
• Shared Parenting – The child spends equal or near equal time residing in each parents household.
• Legal Custody-The major decisions regarding the child’s welfare is made by the parent with legal custody of the child although joint legal custody is the status preferred by the court. These decisions involve the child’s healthcare, education, extracurricular activities, religious affiliation and community activities. In some cases, the court may order sole legal custody while the issue of physical custody is being decided if it is not in the best interests of the child. Examples may include a parent who is noncooperative, exhibits excessive use of drugs or alcohol or has abandoned the child.

In determining which parent is awarded physical custody, the court is not bound by any one set of factors but will look at the circumstances of each parent and their ability to care for the child in its ultimate determination as to which arrangement will serve the best interests of the child. The courts do not presume that joint physical or legal custody is best.

Before the court makes its decision, however, the parties need to submit either a joint or separate parenting plan that includes which party is to have physical custody along with a visitation schedule. The court may accept the joint plan or any one plan that is submitted, or it may reject it and make its own decision.

For the most part, the court will examine the following factors in making its custody determination:

• The relationship between the child and the individual parents
• Age and gender of child
• Parents’ capacity and ability to provide basic necessities
• The child’s routine regarding school, community activities and other relationships
• If the parent has a history of abuse or drugs
• The mental and physical well-being of the parents
• If one of the parents has been the primary custodian or caretaker
• The child’s preference if old and mature enough

These factors and others that may be presented are measured by what is in the best interests of the child.

Visitation and Parenting Schedule

The parties are always encouraged to make their own visitation or parenting schedule and they do have to submit a parenting plan. In the majority of cases, the parents are able to work out a schedule, but if they cannot or the court feels that the schedule is not reasonable, then it will order its own visitation or parenting arrangement. In the case of grandparents, they are not entitled to visitation of their grandchildren but may ask the court for an order granting visitation under the following circumstances:

• Parents are divorced or separated
• The parents are unmarried and living apart so long as paternity is established
• One or both parents are dead

Still, the grandparents must demonstrate a pre-existing relationship with the child and that the visitation is in the best interest of the child and that by denying them visitation, the child’s health or welfare will be harmed.

If you have any questions or concerns about custody or visitation or feel that your rights in these areas are being violated, contact The Law Offices of Michael F. Mimno to discuss your legal options.