Custody, Parenting Time in Massachusetts

By April 15, 2020 April 17th, 2020 No Comments

Issues involving children are some of the most important and difficult issues in a divorce action.  I tell my clients all the time that I can – rather easily – divide a house or a 401(k) or a collection of plates.  I look at value, I look at contribution, I look at a number of other factors, and I figure out the best way to allocate that value.  I can’t do that with your kids; it’s far too important of an issue to be reduced to a formula.

Every child is different.  Every parent is different.  That means that every case is different.  And that’s how we approach custody and parenting time determinations – on a case by case basis.

Before we dive into the mechanics of how we determine a custody and parenting time arrangement in Massachusetts, let’s start with basic definitions.


  • Custody is a term relating to the care and support of minor children. There are two types of custody in Massachusetts, legal and physical custody.
  • The parenting plan is the overall custodial arrangement, parenting time schedule, and mechanics for how two divorcing parents are going to raise their kids moving forward. It can be as detailed or as basic as you can agree, though there are dangers in making a parenting plan too detailed or too
  • Legal custody is the ability of one or both parents to make legal and life decisions relating to their children. These decisions include school enrollment, therapy, IEP’s, orthodontia, and on and on.
  • Physical custody is becoming a bit of an antiquated term. But basically if one parent has the child under their roof for more than 50% of the time, they are considered to have “physical custody” and are considered the custodial parent.  The parent who has the child with them less than 50% of the time is considered the non-custodial parent.  If the parents each have the children 50% of the time, then they are considered joint physical custodians.  We’re using this term less and less in separation agreements and seeing it less in judgments.  Instead, what we’re seeing is that there’s a detailed description of the parenting plan, rather than handing out titles to the parents.
  • Visitation is also becoming a very antiquated term. I saw a judge once correct an attorney that “visitation is what occurs when you visit someone in prison.” That was about ten years ago.  Things are changing and judges, attorneys, and litigants are all opting to use parenting time.
  • Parenting time is the time one divorced or divorcing parent spends with their child, away from the other parent. Whether you are the parent who the child primarily resides with, or there is a 50/50 parenting plan in place, or you are the parent with whom the child does not primarily reside, your parenting time is your time with your children.  But yet, both parents are still involved, whether we’re talking about phone calls with the children, the ability to attend games and performances, and other ongoing engagement.  Just because the children are with the other parent doesn’t mean that either parent becomes a persona non grata.
  • A minor child, in broad terms, is a child under the age of 18. Most parenting plans stop as a matter of law when a child reaches age 18 because that child will effectively be an adult.  That being said, a lot of parenting plans may not be as effective as a child gets further into their teenage years.  There’s no case law on this and no statutes that set a date when a child will set their own parenting plan.  We, as family law attorneys, just see this often.  The chances of enforcing a parenting plan through a contempt action just gets more difficult the older kids get.
  • An unemancipated child is a child who is still dependent on their parents for financial support. This obviously relates more to child support, but it’s important to know the distinction between an unemancipated child and a minor child.  You can have a child who is no longer a minor but is still unemancipated – such as a child who graduated high school and is in college.  When does a child emancipate?  That operates on a sliding scale.  If a child enters the military, they emancipate.  If a child gets married, they emancipate.  If the child graduates high school and have no plans for college and get a job, they emancipate.  But if a child gets a summer job, that’s not necessarily emancipation.  Keep in mind, it’s also possible that a child can emancipate, then unemancipated, like if that child re-entered college.


So now we have baseline definitions for custodial issues.  Let’s dig in a bit further to get a better understanding.


If you go through a divorce or have gone through a divorce and you have minor children, you most certainly heard the term “best interests of the child.”  It’s the overarching standard the court uses to make decisions relating to kids in a custody dispute.

But what does it mean?  Simply (and very basically) put, it means what’s good for the kids from an objective standpoint.

How do we determine what the “best interests” of your child are?  That’s a bit tougher to figure out.  Again, every child is different.  Let’s take two 14 years old kids:  Annie and Barry.  Annie is very much into theater, has significant reading difficulties and deals with chronic onset asthma.  Barry plays hockey (practices 4 times a week at a significant expense, but that’s another topic), is likely going to get accepted to a prestigious boarding school for high school, and fights constantly with one of his parents.  Annie and Barry are two very different kids and what’s in Barry’s “best interests” is probably not what’s in Annie’s “best interests.”

The other critical thing to know about the “best interests” standard is that it’s a global discussion relating to a child.  Almost no issue affecting a child’s life is irrelevant to a discussion of custody.  Extracurricular activities, teething, kindergarten, school choice, bus schedules, camps, screen time, phone calls, a parent’s commute, day care – the list goes on and on, and we consider all of it when we advocate for a parenting plan.


So you’re getting divorced.  The opposing party is likely not your favorite person in the world and communication has become difficult.  Do you really have to continue working with that person and giving that person a say in how your kids are raised?

The short answer is probably.  Most of the cases we see end with a joint legal custody arrangement where both parents have a say in the major life decisions for their kids.  There are exceptions.  For instance, if one parent has shown extremely poor judgment in raising the children, that might give rise to the other parent getting sole legal custody.  Or, if the parents are unable to communicate effectively (such as where there is a restraining order present), that might also give rise to one parent getting sole legal custody.


I can’t tell you how many times I meet with a potential client in my office and they tell me that they consulted the parenting time “guidelines.”  There are a lot of great, helpful books out there, but in Massachusetts, there are no court-issued guidelines like we get for child support because the court looks at parenting time issues on a case by case basis.

That being said, it’s entirely reasonable to say that if you have two parents who love their kids, who don’t pose any harm to their children, and who want to spend time with their children, it’s likely that both parents will have some amount of parenting time.  How much, how often, and what that parenting plan looks like will depend entirely on the facts of that case.

There are lots of “standard” parenting plans that we see in divorce agreements and judgments.  There’s the “every other weekend/dinners during the week” plan, which can be appropriate but also leaves one parent going a long stretch without overnight time; there’s the “2-2-3 plan”, but has a ton of transitions; there’s the “week on/week off” plan, which seems like a straightforward division of time, but is really problematic.  What plan is right for you and your family?  You should meet with an experienced Massachusetts family law attorney to get a detailed analysis.


One of the hardest parts of litigating a custody case is evidence.  With financial issues I can very easily look at a paystub, a bank statement or a balance sheet to get solid facts.  Very rarely is there a single document which says “Parent A did all the cooking for the kids.” Even if there was a document, what if Parent B did all of the rest of the child-related duties?

That’s why I tell clients to keep a daily log.  It’s simply impossible to remember all the details and minutiae related to the day-to-day lives of a family.  Keeping a log is a great way to track who did what, how the kids were doing, what kinds of activities they were engaged in, and so on.

In addition to keeping a log, hang on to communications from teachers, doctors, dentists, coaches, caregivers – any third party involved in your children’s lives.

Above all, keep all communications with your spouse.  While verbal communications between a married couple are often times inadmissible, written communications (such as emails and texts) can be admitted into evidence.  These types of communications are very helpful in finding out what was really going on in a family prior to a divorce action.