In a Divorce, Who Gets the Kids?

Years ago, the "Tender Years" Doctrine assumed that the mother was presumed to be the better parent for children under the age of six. Today, the law governing the custodial interests of parents as to their unemancipated children is construed in a gender-neutral manner.

Interestingly enough, parents possess a fundamental liberty interest, protected by the 14th Amendment, to be free from unnecessary governmental intrusion in the raising of their children. Upon divorce, however, when parents cannot agree, that's when the court can justify its imposition. Quite often, the Judge may order a Guardian Ad Litem investigation to assist the court in determining the best interest of the child. If you sense there may be a custody battle, contact us or read about how to prepare your case for custody.

While Judges, lawyers and even divorce litigants speak of a parent's "right" to custody, this is misleading. It's more accurate to refer to a parent's "interest" in raising a child rather than their "right." After all, in Massachusetts the focus will always be on the welfare of a child rather than on the rights of his or her parents. This is a hard concept for many parents to understand. Especially when heightened emotions (like those in a divorce) come into play, litigants find themselves doing things that they may think they have a right to do, but actually hurt them because their actions are viewed as being disingenuous. Just to be safe, you should read about custody risk factors.

To learn more, go to our quick link on custody/visitation. If you're concerned about changing a custody order, go here.