Custody Information for Gay & Lesbian Couples

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Below we have provided answers to many of the common questions that we are asked about Custody and how it is different for same-sex couples.

If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

How is Same-Sex Custody Different?

In many ways divorce law in Massachusetts treats same-sex marriages and opposite-sex marriages the same. For that reason we have included on this page many of the frequently asked questions about custody below. However, it is also important for you to be aware of the few ways in which these cases will differ from opposite-sex cases. If you are facing a same-sex divorce, failing to recognize these differences or hiring counsel that is not aware of these differences could result in a significantly worse financial result in your case. Below we have provided one way that these cases can differ from opposite-sex custody cases:

ENFORCEMENT OF ORDERS OUT-OF-STATE: A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages. This means that they may also refuse to enforce same-sex Divorce Judgments against their state residents. Court Orders which may otherwise be enforceable across state lines, may lose their effect if your ex-spouse moves to one of these uncooperative states.

Frequently Asked Custody Questions:

What is Legal Custody?
What is Physical Custody?
What is Shared Physical Custody?
What is Split Physical Custody?
What is a Parenting Plan?
Are their Court recommendations on Custody and Visitation?
What is the required Parenting Course?

What is Legal Custody?

Legal Custody is the right of one parent to be involved in the major life decisions relating to their child. This includes having access to the child's school and medical records without the permission or knowledge of the other parent.

Most parties agree to joint legal custody, recognizing that most parents are already involved to this extent, and legal custody just recognizes that involvement. In cases where a parent is unfit or unwilling to participate with the other parent in reasonable discussions about major life decisions it may be necessary to seek sole legal custody.

What is Physical Custody?

Physical Custody, put simply, is where does the child live. This is what most people are referring to when they use the term "custody." If the child lives primarily with one parent, usually considered to be 2/3 of the time or more, then that parent is said to have sole physical custody.

The courts try to award physical custody to the parent who has traditionally been the primary caretaker of the children, assuming that there has been a defined distinction in roles, and that the primary caretaker remains fit to continue that role.

Oftentimes parties become obsessed with which parent is described as the "custodial" parent or the "visiting" parent. While we recognized that these designations carry connotations with them and in some contexts can be hurtful, we encourage our clients to consider designating a "Parenting Plan" rather than concentrating on the designation of custodial or non-custodial parent.

What is Shared Physical Custody?

Shared Physical Custody usually refers to a situation where each parent spends approximately equal time with the children. This can be as simple as one week in one parent's home and one week in the other parent's home, or it can be as complicated as can you imagine.

Shared Physical Custody only works when the parents are able to cooperatively and reasonably co-parent the children, meaning that the parents communicate well about the children's needs and do not let their other disagreements spill over into their co-parenting.

It can often be very frustrating for one parent who believes that shared custody is best for the children, but the other parent refuses to communicate or co-parent. Unfortunately, the Courts are sometimes ill-equipped to deal with these problems and custody fights can be very financially and emotionally draining.

If you want there to be a chance that a court will order shared physical custody you must do your best to keep the lines of communication open, and to keep your marital problems separate from your co-parenting.

What is Split Physical Custody?

Split Physical Custody usually refers to a situation where there are multiple children and one or some of the children reside primarily with one parent, while other of the children reside primarily with the other parent.

What is a Parenting Plan?

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill.

Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

You should ask your attorney to see a sample of their Parenting Plan and to explain what each provision of the plan is for.

In addition, using a calendar to visualize proposed parenting plans can be helpful in figuring out what will work best for your family. For that purpose we have created the Parenting Plan Worksheet. You can use the Parenting Plan Worksheet to visualize typical parenting plans, including those recomnded by the Massachusetts Model Parenting Plans, or create your own custom plan.

Are their Court recommendations on Custody and Visitation?

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about your family. Because every family is so different, there cannot be specific guidelines on custody and visitation.

However, the Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete. At each stage, a child's needs are different.

In attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.

What is the required Parenting Course?

Under Standing Order 99-1 of the Probate & Family Court, if you have any minor children at the time of the filing of your divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can present either a settlement of your case, or present your case for trial. A brochure which lists the names, addresses and telephone numbers of the various organizations that provide this program, in alphabetical order by town, is available by clicking here.

You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.



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