Child Custody in Massachusetts: Legal and Physical Custody, Best Interests, and Two Families Now
Massachusetts family law · Last reviewed October 28, 2026
Massachusetts decides custody on the happiness and welfare of the child. Parents start with equal rights, and while the case is pending they usually share legal custody. At trial there's no presumption for or against shared custody, with one exception: proof of abuse creates a presumption against giving the abusive parent custody.
The four kinds of custody
G.L. c. 208, § 31 separates two questions: who makes the big decisions (legal custody), and where the child lives (physical custody).
| Term | Meaning |
|---|---|
| Sole legal custody | One parent makes the major decisions about the child's welfare, including education, medical care, and emotional, moral and religious development |
| Shared legal custody | Both parents share those decisions |
| Sole physical custody | The child lives with one parent, subject to the other parent's reasonable parenting time unless the court finds it isn't in the child's best interest |
| Shared physical custody | The child lives with each parent for periods of time, so as to have frequent and continued contact with both |
Courts and forms use "parenting time" for what the statute often calls visitation.
How the judge decides
Section 31 sets the standard:
In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.
The statute doesn't give a numbered list of factors. Beyond the living-conditions question, it leaves the weighing to the judge, and § 31A adds the rules on abuse.
While the case is pending
Until the judgment, absent emergency, abuse or neglect, the parents have temporary shared legal custody. A judge can give one parent temporary sole legal custody only with written findings that sharing it wouldn't be in the child's best interest. In deciding that, the court considers things like whether a family member abuses alcohol or other drugs, has deserted the child, and whether the parents have a history of being able and willing to cooperate about the child. The statute adds that nothing in it creates a presumption of temporary shared physical custody. Temporary custody orders come under § 19.
At trial: no presumption, and a plan if you want shared custody
Section 31 is direct: "There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A."
If custody is contested and either parent asks for shared legal or physical custody, the parents (together or each on their own) must submit a shared custody implementation plan at trial. It covers the child's education and health care, how you'll resolve disputes over child-raising decisions, and the periods when the child will live with each parent, including holidays and vacations. The judge can accept a plan, or issue a modified one.
Abuse
Section 31A makes abuse central. A judge must consider evidence of past or present abuse toward a parent or child. A finding, by a preponderance of the evidence, "that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent." The judge who still orders custody to that parent must make written findings that the order serves the child's best interests and provides for the child's safety and well-being, and parenting time can come with conditions such as supervision.
You don't need a divorce to get an abuse prevention order; it's a separate case. The court's restraining order forms page has the forms, and the state's SafeLink resources page lists help for survivors.
Two Families Now
Under Standing Order 3-23 (effective February 12, 2024), parents in a divorce with minor children where custody or parenting time is at issue must take Two Families Now, a four-hour online co-parenting course, unless a judge waives it. Joint 1A petitions are exempt.
- Register within 30 calendar days of service of the complaint, and finish within 30 days of registering.
- The course costs $49 per parent; a parent who can't afford it can ask the court to waive the fee.
- To be excused, file a Motion to Waive Attendance (CJD 444) with notice to the other parent. A waiver for one parent doesn't automatically apply to the other.
Moving out of Massachusetts
Under § 30, a child of divorced parents who was born in Massachusetts or has lived here five years, and whose custody the Probate and Family Court oversees, can't be moved out of the state without the child's consent (if old enough) or both parents' consent, unless the court allows it for cause shown. The statute sets no notice period; check your own judgment for one.
Which state decides custody
Massachusetts custody jurisdiction is in its own Child Custody Jurisdiction Act, chapter 209B. The usual starting point is the child's home state: where the child lived with a parent for at least six consecutive months right before the case began (or since birth, for a baby under six months) (§ 1). A Senate bill relative to the Uniform Child Custody Jurisdiction and Enforcement Act (S.2550) passed the Senate in July 2025 and has sat in the House Ways and Means committee since; it is not law as of October 2026.
Since November 5, 2025, § 56 also bars Massachusetts courts from using another state's ban on gender-affirming health care, or its rule that allowing a child that care justifies removal, as a basis to change custody or parenting time, and requires the court to weigh the likely disruption of the child's care.
Frequently asked questions
Does Massachusetts favor 50/50 custody?
No. At trial there's no presumption for or against shared legal or physical custody. While the case is pending, parents usually share legal custody, but the statute says there's no presumption of temporary shared physical custody.
At what age can a child choose which parent to live with in Massachusetts?
No age is set by statute. Section 31 makes the child's happiness and welfare the test and leaves the decision to the judge, not the child.
What is the difference between legal and physical custody?
Legal custody is the right to make major decisions about the child's education, medical care, and moral and religious upbringing. Physical custody is where the child lives.
Do we have to take a parenting class in a Massachusetts divorce?
If you file a 1B or fault divorce and custody or parenting time is at issue, each parent must take Two Families Now ($49) unless a judge waives it. Joint 1A petitions are exempt.
Can I move out of state with my child after a divorce?
If § 30 applies, you need the other parent's consent (and the child's, if old enough) or the court's permission. Your judgment may set other conditions.