In Massachusetts, there is a distinction between legal custody (i.e. ability to make major decisions concerning the children such as education, elective medical care, religious development) and physical custody (i.e. where the children principally reside).
When determining physical custody, the guiding principal or “touchstone inquiry” is, and always has been, the best interests of the child. The decision of which parent will promote those interests is a subject peculiarly within the discretion of the judge who is empowered “to consider the widest range of permissible evidence, including the reports and testimony of a . . . guardian ad litem, evidence of the history of the relationship between the child and each parent, evidence of each parent’s present home environment and [their] over-all fitness to further the child’s best interests. . . .” Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). Recent appellate decisions demonstrate that in determining physical custody, or when crafting an appropriate parenting plan, the court may also consider such things as: (a) which parent is more attuned to the child’s medical, educational, religious and daily needs, (b) which parent is more likely to provide access to the child to the other, (c) whether a parent has historically refused to provide information about the child to the other, (d) which parent has a greater capacity to support a relationship with the child and with the other parent, (e) the utility and success of any post-separation parenting plan crafted by the parties, (f) the expressed preference of a mature child, (g) mental and psychological health and status of the child and parents, (h) alcohol and drug abuse, if any, by the parents, and (i) evidence of domestic violence. There is no presumption that the status quo that existed before litigation commenced should be preserved or that the post-separation, temporaryparenting plan will be made permanent. The status quo ante bellum is, however, a helpful indication to the judge as to what the parties felt was in their child’s best interests prior to separation.
The court also has the discretion to require that parenting time be supervised by a neutral third party (on a temporary or permanent basis) or suspended entirely, if it determines that the health, safety or welfare of the child necessitates it.
With respect to legal custody, in determining whether one parent should have sole legal custody (and hence the ability to make major decisions without input from the other parent), the court may consider such things as: (a) each parent’s willingness (or refusals and inability) to communicate with the other for the benefit of the child during the post-separation period, (b) whether the parents’ communications have, by the time of trial, “worsened to the point of being nonexistent,” or otherwise “prevented them from acting, cooperating, or planning together with respect to” their child’s best interests, and (c) each parents’ willingness (or refusal and inability) to respect the other’s role as a parent. If the court finds that the parents are unable to collaborate for their child’s best interest it can vest decision-making power (or sole legal custody) in one parent.