How Does the Court Decide Custody in Divorces?

Custody is often a very emotionally-charged piece of divorce. Like many states in this country, Massachusetts uses a “best interests of the children” standard.

Generally speaking, in the absence of misconduct, the rights of both parents are held to be equal, and the court considers the “happiness and welfare of the children” to determine their custody. M.G.L. Ch. 208 Sec. 31. To determine “happiness and welfare of the children,” the court looks to how the present or past living conditions of the children impact the children’s physical, mental, moral, and emotional health.

With this knowledge, clients can negotiate their own custody arrangement outside of court. Once the parents have reached an agreement regarding custody, the court may enter an order which merges the provisions of the agreement related to the children. However, where there are specific findings that the parents’ agreement is not in the best interests of the children, the court may decline to accept the agreement.