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Which parent has custody before going to court?

Determining who has legal custody of a child immediately after his or her parents separate will greatly depend in Massachusetts on whether or not the child's parents are married. If a child's parents are married and they have not yet gone to court after separating, both parents will share legal custody. This means that both parents will have an equal say in all of the major decisions in their child's life, including education and health care.

Although married parents may share custody initially following a separation, the presumption of shared custody is only temporary. Once parents go before a judge, the shared custody arrangement may be changed. After evaluating various factors, a judge may decide that the parents should continue to share legal custody, or the judge may grant sole legal custody to one parent.

When unmarried parents separate, the presumption of shared custody does not apply. Even if paternity has been established, the mother will usually have sole custody of her child until the court decides otherwise. If an unmarried father wishes to seek sole or shared custody of his child after a separation, it will be important for him to make sure that paternity has been legally established before going to court.

Understanding who has legal custody before a divorce or separation is finalized may be important for a parent who is at odds with their estranged partner. Before going to court to seek a permanent child custody order, a parent in this situation might want to seek the assistance of an attorney who has experience in family law. The court will make its determination based upon the best interests of the child.

Source: Women's Law, "Custody", December 30, 2014

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