Custody Basics

February 5, 2022 O'Connor Family Law Divorce

Legal vs. Physical Custody

In any custody dispute, there are going to be two major considerations regarding the rights a parent (or guardian) has in relation to a child: Physical Custody and Legal Custody. To explain each type directly, physical custody is when your child lives with you and you are responsible for providing them with a suitable home. Legal custody is the right and responsibility to make the major decisions about your child’s wellbeing and development. Things covered under legal custody might be things like when and how to receive medical care, what school they go to, whether or not to introduce them to religions, and how to discipline them.

Custody can be joint and split between parents. In cases where either type of custody is assigned to one parent, that parent has sole decision-making authority or responsibility for ensuring that custody is carried out in the best interest of the child(ren). A parent with sole legal custody will be responsible for ensuring that there is a stable and safe home; a parent with sole legal custody will have final say on things like enrollment in school.

Regardless of how your custody arrangement ends up, you will be expected to successfully co-parent with your soon-to-be-ex.


By default, the court’s position is that custody arrangements are best made where both parents have robust and meaningful relationships with their child(ren). However, we all know that people aren’t perfect, and we often end up in court because there is conflict between people. Sometimes, someone just isn’t a good person and it isn’t safe for them to be around children. So, the court will hear arguments and make their best determination as to what the best interest of the children will be. As facts and circumstances are uncovered, the balance towards one parent gaining more custody can shift.

Things that will shift that court’s ultimate decision regarding custody and parenting time really have to do with things that affect the children – the ability to provide a stable home, risk of abuse from one parent or the other, exposure of the children to domestic violence or drugs and alcohol, etc. What the court will largely not care about is whether or not your ex cheated on you, that you might live with your parents, and other similar factors that are unrelated to fitness as a parent. Just because someone commits acts of infidelity, or the room they provide is in their parent’s home does not mean they are unfit to parent their children.


Whenever custody considerations are made, child support considerations are sure to follow. Regardless of how custody shakes out, the court expects that both parents will make some contribution to the support and growth of their child(ren). For a parent that has been assigned sole custody, that contribution is expected to be in the form of the time and effort to raise and support their kids, directly providing the home, getting them to school, arranging child care, etc. For parents that do not have physical custody, that support is most often manifested in the form of a financial contribution to the custodial parent.

Child support is determined using a worksheet tool that takes consideration of a parent’s income, the number of children a parent has under or over 18, and more. Because this worksheet is just a tool, your attorney can use it to create several different scenarios based on the proposed custody arrangements to bring to the judge. In most cases, the judge will accept some amount produced by the worksheet guidelines, but it is important to keep in mind that the judge does have discretion to deviate from them if they should find good cause to do so.


Ideally, custody and parenting time of a child can and should be handled between the parents outside of the court. If you and the other parent can work together constructively and in a meaningful way, then we encourage you to continue doing so and avoid a potentially lengthy legal challenge.

However, we don’t live in an ideal world. Sometimes, people are spiteful, petty, and difficult to work with. When that happens, a little intervention can make a huge difference.

As a baseline, the way custody works is going be determined first by the relationship that you have with the other parent. If you have children as a result of a marriage and are divorced, you are going to end up resolving custody and child support as a part of that process. If you had a child outside of a marriage (wedlock), then things change quite a bit.

In Massachusetts, physical and legal custody is assigned to the mother any time a child is born outside of a marriage. In order to establish rights for visitation, custody, and so on, fathers must obtain an order from the court. So, for fathers, it will make sense to get an order on custody if they are not being given access to their child.

Either parent may seek to ask for custody as a result of concern for their child’s interest or well-being. Perhaps the current home environment is unsafe, or the other parent has a tendency to neglect the child(ren) when the kids are in their care. Ultimately, it becomes time to file a petition for custody when the parenting relationship breaks down and the wellbeing of the children is being compromised.


Choosing the right paperwork and filling out everything accurately can be difficult when you are unsure of how to move forward in the process of establishing, or protecting, your rights as a parent. You should consult with your attorney to help you file for custody properly and to get you started on the right path. The team at O’Connor Family Law has been there before, and we will help you move forward with the first step in a custody dispute to get you through this difficult journey.

Learn more about custody and child support in Massachusetts or schedule a consultation by calling 774-703-3755 or by visiting our website.