The two types of custody: Physical and Legal

Decisions about child custody are twofold:


  1.  How time spent by the child is to be distributed between the two parents is known as "physical custody"

  2. How major decisions concerning the child (medical, schooling, religion, for example) will be made as between the parents is known as "legal custody" 


Physical custody

Until a child is 18 years of age, a court adjudicating a custody matter can say where a child will live and how much time that child will spend with the other parent. After age 18, the court loses all power over a child's whereabouts.


For many years, "physical custody" of minor children was awarded exclusively to one spouse. The other spouse had "visitation" with the child. It has only recently been understood, however, that in most cases, a parent should not be considered a "visitor" in a child's life. Children are not objects to be possessed by one parent only; they are not prizes to be won in battle. One or the other parent should not be relegated to "visiting" with a child as if that person were visiting an animal in a zoo. Enlightened judges, now recognizing that children need substantial relationships with both parents, are now rejecting the outmoded "custody and visitation" terms in favor of addressing the "parenting plan" for the child. Both mother and father thus "parent" the child; the only question is how much time each of them will have with the child.


Obviously, if one parent has a serious mental illness, is violent, or exhibits other traits which make it detrimental to the child for that person to have expansive parenting time, the Court has the flexibility to make appropriate orders, such as diminished time with the child, supervised time only with the child, or no time with the child (in extreme cases). Addressing such serious conditions can be done on an emergency basis. The question is always: What will best serve the happiness and well-being of the child?


Legal custody

There is a presumption that the parties will share legal custody, at least initially. That means major decisions in a child's life are to be made jointly after consultation between the parents. This presumption can be overcome at a hearing if, for example, it is shown that the parties cannot communicate effectively. At a final hearing of a divorce, the presumption no longer exists, and the parties can contest the continuation of joint decision-making if it proves unworkablemay present one, two, three, or more contested issues. As the case progresses, hopefully one or more of the formerly contested issues will become the subject of an agreement, and therefore, "uncontested." That narrows the scope of the remaining case.




1. Can my child live primarily with me if she says she wants to?


Answer:  That depends. (Typical lawyer answer: Feel free to go to someone else's website, but it's true.) A statement of the law on this topic can be paraphrased as follows: "If a child is of sufficient age, maturity, and intelligence to decide where he/she wants to live, and then makes a reasoned decision, that decision will generally not be disturbed."


  • What is sufficient age?  Depends on the judge.


  • What is sufficient maturity and intelligence?  Depends on the judge.


  • What reasoning by the child will support such a decision?  Depends on the judge.


Nothing is certain here. There is no black and white. The older the child and the more intelligent and mature he or she is, the more likely the judge will be persuaded to let the child decide. One thing is fairly certain: until age 12 or 13, almost no judge will let a child have that decision. It is the lawyer's art to marshal the available facts in support of your position and argue them eloquently and persuasively to the judge. Note that if a child has actually been living primarily with one parent for a substantial period of time after the parties separated, then it is even more likely that this "status quo" will be kept.


2. We have a very young child. I am concerned about the child spending time away from his primary home, especially going back and forth too much. Are there any guidelines for parenting arrangements?


Answer: There are. The Massachusetts Chapter of the Association of Family and Conciliation Courts has issued a publication with guidelines for parenting plans. This helpful work, which you can read in its entirety here, incorporates recent research into the effect of divorce on children. It reviews the different developmental stages of children and outlines parenting plans suitable for them.


3. The other parent does things very differently than I do.

I am a vegetarian and would not feed my child meat. My husband does not support me in this and permits him to have hamburgers whenever he is with him. Also, I am Jewish and he is Catholic. Can I stop him from taking the child to Catholic Services? Finally, I feel that a ten-year-old should not be watching r-rated movies, or professional wrestling, which he does at my husband's house. Can I put restrictions on my husband so that he conforms to reasonable morals when my child is with him?


Answer: There must be showing of "actual harm" to the child as a result of any of these activities before the court can step in. It has been said by our high courts that a belief that some harm may follow, or a showing of hypothetical harm, is not sufficient. Each parent is entitled to his/her lifestyle and is entitled to share that lifestyle with their child. If an activity presents a clear danger to the physical or emotional welfare of a child, however, that can be addressed and restricted. A careful examination of the conduct and its effects are in order.


4. Can I introduce my child to my girlfriend/boyfriend before the divorce is final?


Answer: This is usually not looked upon favorably by the Court. If the parties agree, the Court will not usually intervene. The Court is concerned that there may be multiple relationships during the divorce. That may lead to the child or children forming multiple attachments at a very vulnerable time, only to have those broken off if the relationship withers. If there has been a long period of separation between the parents, however, and the "significant other" is a serious relationship, some judges can be persuaded to permit the introduction, especially if there is a particular reason for its timing (a family gathering, for example).

Further Discovery