Five Myths About Custody Agreements

March 13, 2020 O'Connor Family Law Child Custody

If you are going through a divorce and have children with your to-be ex-spouse, you may have a variety of concerns regarding the custody of your children. We have heard many different people come to us after being misinformed about how custody works in Massachusetts.

There are five myths about custody agreements that parents commonly believe that aren’t true or aren’t necessarily true in every case. While there are a range of factors that ultimately affect the final custody determination in your divorce case, the Court will always be primarily concerned with what is in your child’s best interests. With over 35 combined years of exclusive family law experience, we can help clear up some of the confusion and misinformation that may be causing you to lose some sleep at night.


One of the most common misconceptions regarding custody agreements it that the mother is automatically the Court’s first choice for custody. This comes from past norms where the mother usually stayed home to take care of the children while the father went off to work to provide money for the family to live off of. When you think back to the families of the 50’s, it was the mothers who would do everything with and for the children. Because of this and the belief that it was best for the children to keep the status quo – meaning keep things as close to as they were before the parents separated – mothers often assumed primary decision making and residential placement. However, things have drastically changed with how both parents work in the majority of homes and both participate in the child’s care to greater extents than they used to.

A lot of courts now take the viewpoint that a divorce significantly changes things and, even if one parent was more involved than the other during the relationship, if that parent can now be more available, there’s no reason why that parent shouldn’t be able to have more time with the kids.

There has also been a great deal of research done that has made many people come to the determination that it is better for children to be regularly involved with both parents than to be with one the majority of the time and “visit” with the other every so often.

Because of the way the family dynamic has evolved, inclusive of many groups advocating for father’s rights, the Court will look to many different factors, not just who was the primary caretaker while the marriage was intact. Many courts will start with a presumption that it is best for the parents to share parenting time with the children fairly equally. Because of this, you can sometimes hear that certain judges “favor” men. However, that is not necessarily true either. Those judges favor the children having a strong relationship with both parents.


A second common myth about custody agreements is that they always have to go through litigation in Court; meaning they are highly contentious and require a trial. However, in reality, the majority of cases do settle without the need for a trial. Almost every attorney will (or should) agree that, usually, it is much better if you and your to-be ex can come to agreements on how to make decisions about your kids as they grow and how they will spend time with each of you. Putting that decision into the hand of a stranger sitting up on a bench, wearing a robe, who has no idea who you really are, but will listen to your case for about 15 minutes and then use their judgment on what is best for your kids may be very different than what you think is best. Sometimes, we’ve seen cases where the judge enters a custody order that is not even close to what either parent asked the judge to do.

There are a lot of times where parents already have an idea on what will work best for them in relation to caring for the kids because of their work schedules or because they had a good plan while they were married. When that happens, it is fantastic because kids are going to be happiest and get through a divorce best when their parents handle it best. If you have an amicable relationship with the other parent and the two of you can come to a custody decision on your own, we can then simply help you draft the written agreement and make sure any other important issues that you may easily overlook (like how to share holidays, vacations, getting passports, etc.) are dealt with so, if there is ever a future disagreement, you have a guide to fall back on.


Another piece of misinformation that may arise during the custody process is that the parent with primary custodial rights can relocate with the kids wherever and whenever they please. This is simply not the case. Both parents, including the party with primary custody, must abide by the provisions of the custody agreement. If one parent wants to relocate out of Massachusetts with their child, they must seek a modification of their agreement with the original Court that ordered it.

Even if the parent with primary custody is just moving a significant way away from the other parent while remaining within Massachusetts, if the other parent does not agree to the move, the primary custody parent may have to seek a court order to allow for the move. Once a court order relating to custody is in effect, if you do anything that could negatively affect the other parent’s time with the children, if you don’t have an agreement with the other parent, you may be required to get a court order before you do so.


Another prevalent misconception is that the custodial parent will always receive financial support from the non-custodial parent. Although this is true in most cases, it is not true in all cases.

If the parent who ends up with primary custody earns a significant amount more than the non-custodial parent, it’s possible that the custodial parent may still end up making payments to the non-custodial parent. This would happen through an award of alimony. In those cases, there is usually a reduction, even if very small, from the alimony to help account toward the non-custodial’s financial contribution to the child. But having the child in your sole care does not protect you in and of itself from having to pay support to the other parent.

In shared placement cases, where each parent spends an approximately equal amount of time with the children, if one parent earns more than the other parent, that parent usually still ends up paying some amount of child support to the lower-earning parent. To many people, this does not seem fair as they have the child the same amount of time, but the idea behind it is to allow the children to have similar financial support at both houses.


The final myth surrounding custody agreements is one we get asked about fairly often: “What age does my kid get to say where he or she wants to live?” The technical answer here is never. If there is a disagreement about with whom the child will primarily reside, the Court will decide. Now, this does not mean that a judge won’t take a child’s expressed desires into consideration, but it does mean the weight of picking a parent does not rest on a child’s shoulders.

There are ways that a child’s expressed opinion can come before the judge. In one way, when a Guardian Ad Litem is appointed in a case, they typically will interview the children. That would be the child’s opportunity to say what he or she is thinking. During that time, a child may state what they see as an ideal outcome, which may get recorded in the GAL’s report and read by the Judge. Another way could be by being interviewed by probation, similar to utilizing a GAL, but usually done at the courthouse for a specific reason. A final way this may happen is with the appointment of an ARC attorney – which is an attorney appointed for the child. The difference between a GAL and an ARC attorney is that the GAL’s focus is what is in the best interest of the child while an ARC attorney’s job is to only represent the interest of the child.

You may be wondering why the judge would not make the wishes of the child more important in a custody determination and the answer is simple: (1) Kids should never be put in the situation where they feel they are picking one parent over another because they should feel free to love and want to be with both of their parents without making the other one feel bad; (2) Kids do not always want what is best for them. A 13-year old who gets away with everything at Mom’s house but is expected to obey rules, do homework, and go to bed at 9:00 p.m. every night at Dad’s might see life at Mom’s much more appealing. However, getting away with everything won’t help the child get good grades if they choose to not do their homework with no consequences, it won’t help the child learn how to finish what they start, and it won’t help the child in many other ways.

That being said, even though we see our 18-year old’s still as children, the law can no longer grant legal custody of the 18-year old to one parent or the other as, legally, the child is now considered an adult and able to make his or her own decisions. And once a child turns 16 or so, they do what the Court generally refers to as “growing feet.” Sixteen is about the age kids can get a license, and once they have that license, or learn that they can walk away and leave one parent’s house to go stay at the other’s, it is very hard for the Court to order them to stay in a place they physically refuse to stay at.

Now, if you’re dealing with a rebellious child who refuses to do what he’s told or she’s constantly disrespectful or they are repeatedly putting themselves in harm’s way, there’s a possibility that a Judge could order Social Services to step in. This is usually something that neither parent wants. This situation also arises sometimes when both parents are continuously making extremely concerning allegations against the other parent. We have heard judges say on more than one occasion to fighting parents, “If you are both really as bad as you each say the other is, maybe neither of you should have these kids.”


If you have additional questions regarding these five myths about custody agreements or any other “facts” you may have heard, you should speak with O’Connor Family Law. Custody cases are one of our main focuses, so we know the ins and outs to help you obtain the outcome you desire. Call us to discuss your situation with someone you can trust today