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.
"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
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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