Modification of Custody or Visitation in Massachusetts
 

In Massachusetts, to change a final Custody or Visitation Order, a new "Complaint for Modification" must be filed.  Significant changes, or a substantial change in circumstances, must be proved since the Final Order was issued in order for Custody or Visitation arrangements to be changed.  Obviously, the welfare of the children is the primary concern in determining whether an order should be changed.  The child's welfare is always the governing principal in determining the right to custody after a divorce.

The court may modify a custody award based on facts existing when the original order was made but not disclosed to the court at that time.  For example, misconduct of one of the parties prior to the time of the original decree may be taken into account upon an application for modification.  This would be true even though it was not considered by the court in awarding custody of the children initially, if it was of so serious a magnitude that it would have resulted in a different order had the court known about it earlier.

Several factors which may influence the court's decision in modifying custody include:

  • Noncustodian's beneficial remarriage
  • Improvement in noncustodian's home surroundings, health or financial conditions
  • Custodian's denial of noncustodian's visitation rights
  • Child's failure in school
  • Worsening of custodian's health or mental state
  • Custodian's relinquishment of child to strangers
  • Child's change of preference as between parties
  • Custodian's alienation of child's affection from noncustodian
  • Custodian's detrimental remarriage
  • Custodian's transient status
Modification of Custody or Visitation in a Massachusetts Divorce

When a parent seeks to have the custody order changed, it is his/her burden to show the court why it should be changed. The court follows the notion of, "if it isn't broke, don't fix it." This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will harm the well being of the child. This is not as simple as it may seem. You will have to show that your home will be better than the home of the custodial parent (not just as good).  To do this you must show that there has been a substantial change in circumstances and that it is in the child's best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember, a temporary or "pendente lite" custody order is not a final order. You would not be required to show a substantial change in circumstances to have temporary custody changed in the "permanent" custody order.

A child at least 16 years of age can seek a change in custody on his/her own. However, it will be the minor's burden to prove that a change of custody would be in his/her best interests at this time.

The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody.

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