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When Parents Are Separated, Who Has Child Custody?

Making the decision to separate from your spouse/partner is difficult and often occurs over a lengthy period of time. During that time, it’s common for spouses/partners to begin living in separate households. If the partners have children, this raises many questions about where and with whom the children should live. Massachusetts law has put in place some very distinct laws to handle this sort of child custody dispute.

If the parents are not married, the mother automatically has sole legal and physical custody until a Court orders something else. However under Massachusetts law, if the parents are married to each other, both parents share legal and physical custody of the children until a Court decides otherwise.

Does this mean a mother or father is not allowed to take the children with them in the event that they move out of the family home? The simple answer is no. Under current laws, if the parents are married, but there has never been a court order determining custody, it is not a crime for one parent to take the children from the home. In the eyes of the law, it is not kidnapping.

If this situation has occurred in your home working with an experienced family law attorney will initiate the proper steps to legally regain custody of your child. Your attorney may file a Complaint for Separate Support in Probate and Family Court. Next, once this claim is filed your attorney may also file an ex parte emergency motion for temporary custody. Ex parte allows you to testify to the judge without waiting for an official hearing even if the other parent is unable to attend. This informs the judge that the other parent has taken the child from you. Based on this information, the judge may choose to issue an order of temporary custody until a hearing date when all parties can attend is scheduled.

If you are experiencing child custody issues while separated from your spouse/partner, please contact our office and speak with one of our qualified family law attorneys immediately.

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