Custody and Support

There are two types of custody, legal and physical custody.

Legal custody is the parties’ ability to make determinations relative to the children’s education, medical care, and religion. For example, should the child go to private or public school? Should the child get braces? Should the child be placed on birth control? These are decisions made by the parents who have legal custody. In most instances, the parties will retain joint legal custody, and shall continue to make these decisions together as parents after the divorce. The rule of thumb is, although the parties will no longer be married, they will always be the children’s parents, and should work toward parenting together long after the divorce until the children are emancipated. If the strains of the relationship are so tumultuous that the parties are unable to communicate or make decisions together relative to the children, or, if one party has made poor choices that place the children at risk of harm, then joint legal custody will not be possible, and one party will hold sole legal custody. It should be noted that, under Massachusetts law, a mother who has a child out of wedlock is presumed to have sole legal custody, unless otherwise ordered by the court. Married couples are presumed to have joint legal custody, unless otherwise ordered by the court.

Physical custody is the time the children spend with each parent. Primary physical custody means that the children spend the majority of a calendar year with one parent (approximately 70% of the time), and approximately 30% of the time with the non-custodial parent. Joint or shared physical custody means the children spend equal, or approximately equal time with each parent. The child support guidelines now also recognize a blend of these two types of custody, where one party has the children more than 30% of the time, but less than 50% of the time. The amount of time with each parent will depend on each party’s work schedule, where the party lives relative to the children’s school, each party’s ability to care for the children, and each party’s fitness to care for the children. The Courts presume that it is in the best interests of the children to spend as much time with each of their parents as possible, and that a shared parenting plan is in the best interests of the children, unless the evidence demonstrates otherwise.

Attorney McKenna assists clients in working toward a parenting schedule that works for the parties, and if an agreement cannot be reached, motions will be filed to request court orders for parenting schedules during the pending divorce. Sometimes, Attorney McKenna will recommend that a Guardian ad Litem be appointed to investigate the issues surrounding custody.

Once parenting schedule is established, the parties must determine the child support. By law, each and every parent is obligated to support his or her child. The child support guidelines factor in the income of each parent, and allocate the percentage of each parent’s income that is apportioned to the child. The custodial parent is apportioned an amount that is designated toward the children’s support (i.e., payment of rent or mortgage, heat and hot water, food, clothing, etc). The non-custodial parent will also have an apportioned amount that will be paid to the custodial parent, as contribution to the children’s food, clothing and shelter. Parents with shared custody will run a cross-guideline, to determine the amount that each parent pays to the other.