FAMILY LAW INFORMATION
DISCLAIMER
The
following is provided for informational purposes only. It is not meant
to be comprehensive or to be interpreted as legal advice. It also shall
not be interpreted in such a manner as to form an attorney-client
relationship.
For such advice, consult an experienced Family Law attorney.
CHILD CUSTODY
"In deciding issues of child custody, the overriding concern of the court
must be the promotion of the best interests of the children and their
general welfare: Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981).
(citing Hersey v. Hersey, 271 Mass. 545,555 (1930); Heard v. Heard 323
Mass. 357, 375-377 (1948); Clifford v. Clifford, 354 Mass. 545, 548
(1968)).
There are two types of child custody in Massachusetts:
1) Physical custody; and 2) Legal custody.
Physical custody is quite simply who has the child(ren) on a day to day
basis, while legal custody is the party or parties to whom authority is
designated to make major health, education and welfare decisions for
the child.
Generally, legal custody is usually given to both parents except in
cases of abuse, neglect or when the parents are unable to effectively
communicate with each other in the best interests of the child.
The standard of the best interests of the child is also applicable to
the physical custody of the child. In most situations, courts are
reticent to remove a child from the household in which they are
currently residing without strong reasons.
The most common of these reasons include drug and/or alcohol abuse, psychiatric problems, or a stubborn refusal to comply with court orders.
Of course, the difficulty is in documenting these problems and bringing them to the
attention of the court. In many instances, latent psychiatric issues become more pronounced and dysfunctional
under the strain and stress of family law proceedings.
In contested cases (except in emergencies), the custody transfer (or visitation change) is usually accomplished
after the appointment of and an investigation by a family service officer from the court or a
G.A.L. (Guardian Ad Litem, a person appointed by the court to conduct an
investigation and make recommendations in the best interest of the
child during the course of the litigation). While family service officers are officers of the court, G.A.L's
are usually private individuals. Therefore, if the parties are not indigent, the G.A.L. will usually be paid
out of pocket by one or both parties. The attorneys for the parties may agree upon a particular G.A.L. and submit the name
to the judge for appointment -or- the judge may select the investigator (often from a court maintained list). If a particular case involves a specific contested area (such as the mental health of a party), the court will often attempt to select a G.A.L. with a clinical background in that area.
While G.A.L.'s are professionals and should be unbiased, attorneys will usually try to select an individual that
they believe will be sympathetic or favorable toward their client.
The investigator will interview the parents,
children (the specifically methodology will vary by the age and maturity of the child - very young children will be observed and sometimes run through a battery of tests),
teachers, doctors, grandparents and whomever else the investigator deems necessary to the investigation.
A report and recommendations are then issued.
This report is considered the judge's workproduct. It is sealed from the public and may only be viewed or copied as allowed by the court. After the issuance of the report, the
parties are still entitled to a trial by the court for the ultimate
determination of custody (or visitation). The investigator will be called as an expert witness and is able to give wide ranging testimony
(often in violation of hearsay rules) about the investigation and report. This information would often be difficult or impossible to otherwise bring before the court.
Indeed, because of the psychological impact of putting children in the middle of an adversarial situation between their
parents, most judges are extremely adverse to calling children as witnesses (particularly very young children)
and it is rarely allowed. However, additional witnesses do routinely testify in order to supplement or discredit the report's recommendations.
Although the judge has the judicial authority
and discretion not to follow the investigator's recommendations, in most cases the
final judgement of the court will track and implement the report
recommendations fairly closely.
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