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Massachusetts Divorce Law Monitor What you never thought you'd need to know about divorce

First and foremost, if you have them: The Kids

Posted in Alimony and Child Custody, Divorce Process

Hi there,

Here is the first topic in the series: Top 10 Topics to Consider When Getting Divorced.

If you have kids who aren’t grown up, then this can be the most difficult area to navigate.  You will want to consider all of the topics in A and B below, and you may need to consider the topics in C, D and E as well.

A.  Legal custody, joint vs. sole, what legal custody means; who makes major decisions such as health, religion, education, moral development; and/or emergency decisions?

Most folks end up with joint legal custody, which actually is presumed to be the default format in Massachusetts.  Joint legal custody means that the parents need to communicate, and hopefully agree on the major decisions listed above.  This can be very hard in a high conflict situation, and impossible in a situation involving violence, mental health or substance abuse issues.  In fact, the state is asking people who are getting divorced because they can’t communicate, to continue to communicate about their children.

I have the utmost respect for those who manage sometimes after the divorce is done, to step back, take themselves out of the equation and do what is best for the kids.  I have some prior posts about holiday scheduling that may be useful.  Sometimes, parents can’t do it themselves and a Parent Coordinator is necessary.

B.  Your parenting plan: where do the kids live?; when does the other parent see them (vacations holidays, etc)?; who does the driving for pick-ups and drop-offs?

This is often the most difficult piece to determine, as frequently both parents want to be the “primary parent”.  Parenting plans can range from true shared, equal custody, to a more traditional – every other weekend and a couple of evenings during the week format.  If you can’t agree the Court will decide, with the standard being “the best interest of the children,” which usually translates to what the reality has been in the past – who the true primary caretaker has been.  In custody litigation the Court usually appoints a Guardian ad Litem to help determine what the parenting situation is, has been and should be.

C.  Removal or moving within the state.

Generally you have the right to move anywhere within the state; however, moving from Berkshire County to Nantucket can place real obstacles in parenting, and sometimes Courts have prevented it.  Moving outside the state, even from Attleboro to Woonsocket requires either an agreement of both parents or the approval of the court.  This can be a whole new legal action and can consume as much emotional energy, as well as legal fees, as a custody case.
 

D. Temporary incompetence of one parent.

What happens after the divorce when one parent is unable to care for the kids, generally due to mental illness, substance issues or incarceration? Most often there will be a temporary transfer of physical custody to the other parent, this can happen by the agreement of both parents, or through court intervention. Problems arise when the impaired or ill parent is better (or not) and wants the kids back. This can trigger a whole new custody action. These circumstances also often involve the state’s Department of Children and Families.

E.  Relationship with other relatives.

Grandparents have rights too!  And so do parents against Grandparents.  Usually grandparents see their grandchildren when their child has them; however, in some instances grandparents can ask for their own time with their grandchildren.  Conversely, grandparents can be excluded from seeing the kids as well.

 

I realized as I wrote this that this is just the tip of the iceberg here, I could go on and on… I hope it helped.

Best,

Nancy