Custody Parentage Laws | Massachusetts
How does a court generally go about making custody determinations?
When a married couple divorces, the parties are encouraged to make their own agreement about custody and visitation. If they can’t reach an agreement, a Superior Court judge will make a custody and visitation determination based on the child’s best interests. A court considers all relevant factors, keeping in mind a child’s growth, development, well-being, and the continuity and stability of their environment.
In all contested cases, the judge will appoint a family relations officer to investigate in order to help the judge arrive at a decision. The investigation can touch on matters of “parentage and surroundings of any child, [the child’s] age, habits and history, inquiry into the home conditions, habits, and characters of his parents or guardians and evaluation of his mental or physical condition.”
Are there different kinds of custody?
Yes, four kinds:
- “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral, and religious development.
- “Shared legal custody” means that both parents are involved in and make these decisions.
- “Sole physical custody” means that a child lives with and is supervised by only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
- “Shared physical custody” means that the child resides with both parents in a way that ensures frequent contact with both.
If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my “sexual orientation” against me in custody proceedings?
As stated above, Massachusetts courts base custody arrangements on the child’s best interests. Generally, a parent’s sexual orientation or marital status should not affect a child’s best interests.
Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to your child. Many reasons can be cited, such as that the LGBTQ+ parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a “bad role model,” or that the parent’s new partner is not “good” for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.
Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?
It may make a difference for future modification of court orders for custody. People can seek to modify court orders for custody when a change in circumstances alters the child’s best interests. Your former spouse may not have known your sexual orientation or gender identity at the time of the court proceedings but learned of it later. In that case, they may argue that this is a change of circumstances and that the custody issues should be litigated anew.
Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.
Is it considered harm to the child if they are teased about having a gay or lesbian parent?
It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, others can tease children about everything from the size of their ears to their parents’ accent, to their lack of fashion sense. All parents need to help their children develop coping mechanisms and strategies when peer harassment arises.
As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The court switched custody because the white mother was involved with a Black man she later married. The Supreme Court acknowledged the reality of bias and prejudice and that others might tease the child. However, it refused to cater to those prejudices or give them the force of law by changing the previous custody arrangement. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
Can a court keep my kids from visiting when my partner is present?
Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to… family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.
Courts have the power to do this but should not do so unless it is clearly in the best interests of the child. Connecticut courts have rejected the notion that any particular lifestyle, in and of itself, will harm a child, and so will insist on specific proof.
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBT parents;
- Honor existing relationships regardless of legal labels;
- Honor the children’s existing parental relationships after the break-up;
- Maintain continuity for the children;
- Seek a voluntary resolution;
- Remember that breaking up is hard to do;
- Investigate allegations of abuse;
- Not allow the absence of agreements or legal relationships should not determine outcome;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.
For more detailed information about these standards see the publication Protecting Families: Standards for LGBT Families.
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