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Most litigants in court on custody issues are not aware that there are two types of custody that are equally as important: legal custody and physical custody.


Legal custody is the authority to make decisions over the child as it pertains to their medical, educational and overall well-being.  Sole legal custody means that only one parent can make those decisions.  Joint legal custody means that both parents must make these decisions together and obtain permission and consent prior to certain decisions being made.  In cases where the parties are unable to communicate or there are abuse or drug dependency issues, sole legal custody is typically ordered and appropriate.  In other cases, joint legal custody is appropriate.

It is important to note a major difference in children born to parents who are not married and children born to parents who are married.  When a child is born to a couple who is not married, the law states that the Mother has sole legal and physical custody of the child.  In fact, the Father must petition to Probate and Family Court to assert custodial rights over the child.  However, when a child is born to a married couple, the initial presumption is that the parties share legal and physical custody of that child.


Physical custody is the placement of the child and where they reside primarily.  The court will not count the hours you are with a child.  Typically, the court will count the amount of overnights a party has to determine custody.  Sole physical custody means that one party has the child/ren at least 51% of the time or 8 or more overnights in a two week period. Joint physical custody or shared physical custody means that the parties share equally or close to equally the same amount of overnights in a two week period.

Many issues arise when determining the parenting schedule as it directly affects the child support amount.  A shared schedule results in a lower child support amount and a sole physical custody schedule results in a higher child support amount.  Most judges are beginning to take the position of deviating from either child support figure because the parenting schedules are not clearly shared or sole.  Please contact us today to discuss these important issues and gain some guidance as to what might be best for your family.


Once you decide what you think is best for your child and your family, how do you make the case?  Will the judge take you at your word that you are the primary parent? Will the judge understand why it’s best that it’s a shared schedule?  This can be a dilemma faced by many parents who have differing opinions as to what’s best for the child/ren.

Thankfully there are options available to litigants to help make their case: (1) ARC (Attorney Representing Child/ren) Counsel; (2) Probation Department Interview/Investigation; (3) Judicial Interview; (4) Guardian ad Litem Investigation (to name a few).

ARC Counsel

ARC Counsel is a great, free option for families who have older children or children who are mature enough to voice their opinions.  ARC Counsel are attorneys who volunteer their time to represent and advocate for the child/ren in court.  ARC Counsel is appointed by the Court to represent a child or children in a particular custody case upon request of either parent and a demonstration that this appointment is appropriate and in the best interests of the child.  There is no cost to the family with this option.  The attorney appointed meets with your child/ren and understands what the child/ren want in a particular case.  All conversations between the attorney and child are protected by attorney-client privilege.  It is a safe space for a child to speak to their attorney.  The attorney in turn will advocate for the child’s position in court regardless of either parent’s wishes.  Attorney Sladen volunteers as an ARC attorney in Worcester County and has seen first hand the benefit of this service.

Probation Department Interview and/or Investigation

The Probation Department in the Probate and Family Court is staffed with professional mediators who typically assist pro se litigants in dispute intervention and resolution. However, there are times when the court will ask the Probation Department to conduct an interview of a child or conduct and complete an entire investigation as to what is in the best interests of the child.  This option is not always readily available as there is no fee for this investigation and typically the Probation Department are at capacity with the work already assigned.  A judge will order an interview or an investigation in cases where a Judge wants to hear more.  You have the option to request this from the court, but typically, we do not see this as an “easy” option for litigants.

Judicial Interview

There are times when judges will want to speak to the children themselves.  In these circumstances, and only these circumstances, the child attends court with either of the parties and the child is interviewed in the Judge’s chambers. This allows the judge an opportunity to ask questions of the child to assist him/her in making decisions pertaining to legal custody, physical custody or parenting time.  This can be requested by motion and is less common.

Guardian ad Litem (GAL) Investigation

What is a GAL?  A GAL is a third party who is appointed by the court to conduct an investigation and produce a report to the court with their findings and at times recommendations.  Issues that are typically investigated are: legal custody, physical custody and parenting time.

There are two types of GALs that work in Probate and Family Court: Category E and Category F.  A Category E GAL is a GAL who has a clinical, social work or psychologist/psychotherapist background.  A Category E GAL is typically appointed when there are mental health issues involved or even claims of parental alienation.  A Category F GAL is an attorney who is appointed by the court.   Absent the aforementioned issues, a Category F GAL is the right choice in assisting the parties with information pertaining to legal custody, physical custody and parenting time.

No matter what the issue is, there are a multitude of options available to your family to find the best outcome. Please contact us today to schedule your initial consultation.