If you are considering a divorce, separation or other means of ending a relationship in Massachusetts, the issue of who will obtain custody of the child often arises. Attorney Gaudet answers common questions regarding child custody in Massachusetts in the following article.
I am a Father of a Child, but I am Not Married to the Mother, Can I File for Custody?
Yes. It is possible to attempt to gain custody of your child but in cases where the couple is not married the father will need to prove that he is the father to the court. Proof of being the father of a child can be accomplished in one of two ways:
- File a voluntary acknowledgement of parentage form – signed by both parents of the child; or
- File a petition to establish paternity in the court.
I Want Custody of My Children, But I have Concerns About Abuse in My Past History
It is not uncommon for the parent who wants custody to have a criminal past or complaints of abuse which may raise concerns for a judge in Massachusetts who is deciding on a custody issue involving the children of the marriage or couple. Probate and Family Court judges in Massachusetts make custody orders as general rule while considering what is in the best interests of the child. Courts will conduct a best interest analysis where past abusive history is at issue as follows:
Is the abuse a pattern of abuse?
Here, abuse is considered the attempt to cause bodily injury or actually causing bodily injury, or placing another in a reasonable fear of the same. If one parent can demonstrate to the judge that the other parent has a pattern of abuse which meets any of the above definitions, it is possible that a judge would rule that it would not be in the best interests of the child to live with that parent. However, it is also possible that these allegations of a pattern can be challenged in court. If you believe that there are incidents in your past that might be perceived by a judge as a pattern of abuse, you may wish to have Attorney Gaudet review your circumstances to see how he might be able to help.
Would the abuse be considered a serious incident of abuse?
When custody of a child is at issue, a Massachusetts judge will be on high alert when making a decision for evidence of a serious incident of abuse. Here, a serious incident would be one which is an attempt to injure someone bodily, actually causing bodily injury, causing a reasonable fear that bodily injury is imminent or forcing, threatening or placing someone under duress for the purpose of having sexual relations with that person. Where one parent has such a serious incident of abuse on their record or that could be evidenced in court, it may be possible to challenge the allegation.
What about a 209A Abuse Prevention Order?
Unfortunately, it is sometimes the case that in the moments prior to a divorce one side obtains a prevention order or 209A against the other party unnecessarily. It is also often the case that such an order is warranted because actual abuse has been or is occurring between the couple. However, if you find yourself in the position of having an abuse prevention order or 209A pulled on you, the mere fact that a 209A was obtained against you in not evidence that a serious incident of abuse has occurred. In other words, a judge cannot use the 209A to determine that a serious incident of abuse happened, and use that fact as a basis for not awarding custody.
It is, however, possible for the parent who has obtained a 209A against the other parent to prove in court that a serious incident of abuse has occurred by presenting evidence that would rise to that level. If you are in this difficult position you will require representation by an attorney to provide an adequate defense.
I am a grandparent, do I have rights concerning child custody in Massachusetts?
Yes, where a grandparent is able to demonstrate that a child is at risk with their parents it may be possible to obtain custody of the child. Proving that a parent is unfit to care for a child is a tall order, but not impossible. It may be easier to become a guardian of the child in certain circumstances. It may also be possible to get the children’s parents to relinquish custody of their children to grandparents in certain cases. Attorney Gaudet can advise you as to how to proceed with a custody issue and will provide a consultation on the subject of child custody.
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