Sole Custody Compared With Shared Custody
Massachusetts differentiates between legal custody, which describes the right to participate in a child's life through parenting decisions, and physical custody, which reflects the right to have the child living in the parent's home. In Massachusetts, one parent can have sole custody, both legal and physical, or both parents can share those rights. When one parent has sole physical custody, the child lives in that parent's home, but the other parent has visitation rights. The court order for custody can allow the parents to plan "reasonable visitation" on their own or specify a visitation schedule. The non-custodial parent will usually receive some court-ordered visitation, unless the Massachusetts Probate and Family Court makes a finding that circumstances require no visitation at all, due to a need to protect the child from serious harm.
Legal Effect of Marriage on Visitation Rights
Unmarried parents should understand their parental rights under Massachusetts law. An unmarried mother automatically takes sole legal custody and sole physical custody of a child, even if a man has acknowledged that he is the child's father. To gain parental rights in Massachusetts, including the right to request a visitation schedule, an unmarried father must get a court order. As part of the court proceedings to establish parental rights, an unmarried father can request sole custody or shared custody; if the court decides that the mother should have sole physical custody, the father will usually receive the right to reasonable visitation by agreement or a formal, court-ordered schedule for visitation.
Visitation and Child Support Rights
Massachusetts separates the right to visitation from a parent's obligation to pay child support. A parent who provides financial support for a child does not have an automatic right to visitation or custody under state law. Similarly, the court also cannot restrict visitation simply because a parent cannot afford to provide financial support. To enforce visitation rights when the other parent does not cooperate, a parent must proceed with legal action through the Massachusetts Probate and Family Court. The court can decline to award custody and visitation rights, even if a parent pays child support, if the court finds that visitation does not reflect the child's best interests.
The Massachusetts Probate and Family Court can issue a court order for supervised visitation, which means that one parent may only visit with the child while in the presence of an agreed-upon third party or at a supervised-visitation facility approved by the court. Supervised visits may help to preserve a parent's visitation rights while prioritizing the child's health and safety. For example, the Massachusetts courts can require supervised visitation if one parent has a problem with substance abuse. The courts can also order supervised visitation if one parent has committed domestic violence against the other parent or another member of the household.
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