Wendy Hickey Law

Excellence in the Practice of Matrimonial Law ™

Introduction to Child Custody

All states, including Massachusetts,use a best interest of the child standard in disputed custody cases.

Child Custody can be physical or legal. The parties can agree. If not the court will enter orders based on the best interests of the children. The court will consider the following factors:

  • 1) Age of the childern
  • 2) Current parental caregiver situation ( What happens now)
  • 3) Each parents' willingness to support the other parents' relationship with the children.
  • 4) Kids' relationship with parent before the divorce
  • 5) Continuity/Least disruptive
  • 6) Stability
  • 7) Behavior of the parents.

In certain situations where the parents cannot agree on custody arrangements the court with appoint a Guardian ad Litem , usually at the expense of the parents, to provide information in a written report to the court which can include:

  • 1) Meeting with parents children, teachers, and friends
  • 2) Psychological testing
  • 3) Home visits
  • 4) etc. as determined during course of discovery

Any final decision is with the court. It is difficult/expensive to challenge

Physical Custody establishes where a child will live during particular time frames.

Legal Custody establishes which parent (or both) has decision making authority for the minor children on such things as schools, doctors, non-elective surgery, and religion.

Your Conduct With Your Children

Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.

Issues related to children can present challenges for your lawyer as well. While your lawyer's loyalty is to you, your lawyer also has an obligation as an officer of the court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.

The behavior of parents before and after divorce has a great influence on the emotional adjustment of their children. The following guidelines may be helpful:

Put your children's welfare first. Never use your children as a weapon against your spouse.

Be sure your children have ample time with the other parent. They need it.

Visitation should usually not take place in the children's home.

Don't introduce your children to your new romantic interest until the children have adjusted to your separation and your new relationship is stable.

Don't bring your children to court or to your lawyer's office.

Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate.

Be flexible. You may both need to adjust the schedule from time to time.

Giving of yourself is more important than giving material things. Feverish rounds of holiday type activities during every visitation period or lavish gifts may be viewed as a crude effort to purchase affection, and is not good for the children.

Do not use your children as spies to report to you about the other parent.

Do not use the children as couriers to deliver messages, money or information.

Try to agree on decisions about the children, especially matters of discipline, so that one parent is not undermining the other parent's efforts.

Avoid arguments or confrontations while dropping off or picking up the children and at other times when your children are present.

Don't listen in on your children's phone calls with the other parent.

Maintain your composure. Try to keep a sense of humor. Remember that your children's behavior is affected by your attitude and conduct.

Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent.

Don't criticize the other parent in front of your children. Your children need to respect both parents.

Do not let guilt you may feel about the marriage breakdown interfere with discipline of your children. Parents must be ready to say "No" when necessary.

You are only human. You cannot be a perfect parent. When you make a mistake, acknowledge it and try to do better next time.




Summary of State Law