In Massachusetts mothers and fathers have equal rights in child custody cases. However, when a child is born to unwed parents, fathers have the additional hurdle of establishing paternity in order to assert their rights as a parent. Once paternity is established, fathers may bring a claim for custody of their children. When a child is born to married parents, the father’s parental rights are presumed to be established and he may bring a claim for custody in a divorce or separate support proceeding.
It is a common misconception that mothers always obtain custody of the children. Under Massachusetts law, there is no preference given to a parent based solely upon gender. In the past, there was a gender preference, known as the tender years doctrine. The tender years doctrine established a presumption that mothers should have custody of younger children. This resulted in a high rate of mothers obtaining custody. However, the tender years doctrine is an outdated principle that is no longer used within the Massachusetts Probate and Family Court. Now, the custody rights of the parents are equal, except when there is an issue concerning parental unfitness.
Another common misconception is that fathers only obtain custody of their children when the mother is determined to be unfit. The judge will certainly consider the impact of parental misconduct and whether the behavior of a parent puts the child at risk. For example, alcohol or drug problems, a history of domestic abuse, and serious mental health problems are important considerations for child custody that should be brought to the court’s attention. However, potential parental unfitness is only one aspect the judge may consider. A particular custody arrangement or change in custody may be appropriate even when there are no overt concerns regarding parental fitness.
In many situations, parents are able to agree upon how custody will be shared. However, when parents cannot agree on child custody, Massachusetts courts use the best interests of the child standard. Under this approach, it is not a question of who is the better parent, but a question of how to best provide for the child. To determine the best interests of the child, the judge looks at all of the circumstances – what the mother can provide, what the father can provide, what the specific needs of the child are – and makes a determination of what arrangement best meets the child’s needs.
There is no specific definition of what best interest of the child means, neither is there a specific list of factors that must be considered by the judge. The absence of clear guidelines makes child custody cases extremely complicated because the judge has a lot of discretion. If you are seeking custody of your children, it is important to consult with a lawyer for assistance with your case.