Massachusetts Child Custody Agreement

Introduction

Key Things to Know

1. 1

   For divorcing parents, agreeing shifts the work onto the judge. The final paragraph of G.L. c. 208, s. 31 provides that where the parents have reached an agreement, the court may enter an order in accordance with it unless specific findings are made that such an order would not be in the best interests of the children. Read the verb carefully: this is not a rule that the court must approve what you signed. It is a rule that the court cannot depart from it silently.

2. 2

   For unmarried parents, the agreement is a gateway. G.L. c. 209C, s. 10(a) provides that the court shall award joint custody only if the parents have entered into an agreement under s. 11 or the court finds they have successfully exercised joint responsibility for the child and have the ability to communicate and plan with each other. G.L. c. 209C, s. 11(b) then adds an affirmative condition on the other side: an agreement on custody or visitation shall be approved only if the court finds it to be in the best interests of the child, and the court keeps the same power to investigate the facts as it would have if no agreement had been filed.

3. 3

   An agreement does not become an order by being signed. In a joint petition for divorce on irretrievable breakdown under G.L. c. 208, s. 1A, the notarized separation agreement is a required filing, and after the hearing the court must find within thirty days whether the agreement has made proper provisions for custody, for support and maintenance, for alimony and for the disposition of marital property. If that finding is affirmative the court approves the agreement and enters a judgment of divorce nisi; if it does not approve the agreement as executed or as modified by agreement of the parties, the agreement becomes null and void and of no further effect between the parties, and the action is treated as dismissed without prejudice. Child support is calculated separately and is not settled by the custody terms.

4. 4

   Massachusetts uses shared, not joint, and it matters which chapter you are in. G.L. c. 208, s. 31 defines sole legal custody, shared legal custody, sole physical custody and shared physical custody, and every one of them uses shared. Shared legal custody is defined as continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare, including matters of education, medical care and emotional, moral and religious development, and shared physical custody requires that custody be shared in a way that assures the child frequent and continued contact with both parents. G.L. c. 209C, s. 10(a), covering the same subject for unmarried parents, says joint custody instead, and Massachusetts has no parenting plan as such: the statutory instrument is the shared custody implementation plan, and moving away is called removal.

5. 5

   Massachusetts never wrote its best interest factors into a general statute. The standard in G.L. c. 208, s. 31 is a single line: the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. The section adds one directed consideration, whether the child's present or past living conditions adversely affect the child's physical, mental, moral or emotional health. Two short lists do exist but neither is general, one applying only to temporary shared legal custody and the other only to nonmarital children under G.L. c. 209C, s. 10(a), so a numbered factor checklist taken from another state does not describe Massachusetts law.

6. 6

   The presumptions in Massachusetts are narrow and precise. From the filing of the action until a judgment issues, absent emergency conditions, abuse or neglect, the parents have temporary shared legal custody by operation of G.L. c. 208, s. 31, and a judge can order otherwise only on written findings. The same paragraph states that nothing in it creates any presumption of temporary shared physical custody. At the trial on the merits there is expressly no presumption either in favor of or against shared legal or shared physical custody, except as provided in G.L. c. 208, s. 31A.

7. 7

   Abuse creates a presumption that runs against custody: under G.L. c. 208, s. 31A, and in identical terms under G.L. c. 209C, s. 10(e), a finding by a preponderance of the evidence that a pattern or serious incident of abuse has occurred creates a rebuttable presumption that it is not in the child's best interests to place the child in sole custody, shared legal custody or shared physical custody with the abusive parent, rebuttable only by a preponderance of the evidence that such an award is in the child's best interests. Separately, and on a lower trigger, the court must consider evidence of past or present abuse as a factor contrary to the child's best interest. A c. 209A restraining order does not by itself establish a pattern or serious incident of abuse, and an ex parte 209A order is not admissible to show that abuse occurred. If any of this is present, it is a situation for a lawyer rather than a form.

Massachusetts Requirements for Child Custody Agreement

• Agreed Order and Specific Findings, G.L. c. 208, s. 31

  Where the parents have reached an agreement, the court may enter an order in accordance with it unless specific findings are made that such an order would not be in the best interests of the children. The document should state on its face that the parents have reached an agreement on custody and ask for an order in accordance with it.

• Joint Custody Gateway for Unmarried Parents, G.L. c. 209C, s. 10(a)

  The court shall award joint custody only if the parents have entered into an agreement under s. 11, or the court finds they have successfully exercised joint responsibility and can communicate and plan with each other. Parents who were never married and want joint custody need the agreement itself, not merely a preference for it.

• Approval of an Agreement Between Unmarried Parents, G.L. c. 209C, s. 11(b)

  An agreement on custody or visitation shall be approved only if the court finds it to be in the best interests of the child, and the court retains the same power to investigate the facts as if no agreement had been filed. Once filed and approved, the agreement has the same force and effect as a judgment.

• Court Approval of a Separation Agreement, G.L. c. 208, s. 1A

  On a joint petition for divorce the notarized separation agreement is a required filing, and the court must find within thirty days whether it has made proper provisions for custody, support and maintenance, alimony and the disposition of marital property. If the court does not approve the agreement as executed or as modified by agreement, the agreement becomes null and void and the action is treated as dismissed without prejudice.

• Statutory Custody Definitions, G.L. c. 208, s. 31

  Sole legal custody, shared legal custody, sole physical custody and shared physical custody are defined terms. Shared legal custody means continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including education, medical care and emotional, moral and religious development. Use these labels rather than joint custody in a c. 208 case.

• Shared Custody Implementation Plan, G.L. c. 208, s. 31

  The plan sets out the details of shared custody including the child's education, the child's health care, procedures for resolving disputes about child-raising decisions and duties, and the periods of time during which each party will have the child reside or visit, including holidays and vacations. An executed agreement submitted for approval that addresses these details is deemed to constitute the plan, and the court may accept it, issue a modified plan, or reject it.

• Best Interest Standard, G.L. c. 208, s. 31

  The rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody, with the court also considering whether the child's present or past living conditions adversely affect physical, mental, moral or emotional health. Massachusetts enumerates no general list of best interest factors.

• Abuse Presumption, G.L. c. 208, s. 31A and c. 209C, s. 10(e)

  A finding by a preponderance of the evidence of a pattern or serious incident of abuse creates a rebuttable presumption against sole, shared legal or shared physical custody with the abusive parent, rebuttable by a preponderance that such an award is in the child's best interests. Past or present abuse must separately be considered as a factor contrary to the child's best interest.

• Removal From the Commonwealth, G.L. c. 208, s. 30

  A minor child of divorced parents who is a native of or has resided five years within Massachusetts shall not be removed out of the commonwealth without the child's consent if of suitable age to give it, or without the consent of both parents if not, unless the court upon cause shown otherwise orders. There is no notice period and no distance threshold.

• Modification of Custody, G.L. c. 208, s. 28

  The court may modify an earlier custody judgment on a finding of a material and substantial change in circumstances and that modification is necessary in the best interests of the child. The document should acknowledge that this authority survives whatever merger election the parties make.