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Joint vs. Sole Custody : Can a father have joint custody and see his son less than 50%?

Boston, MA |

We had our last day of trial and the judge is expecting both parties to provide proposed judgments (I am Pro Se , she is represented by a lawyer).

So far the judge granted her Sole custody (as we all know there is a total bias towards females in the state of Massachusetts) for no good reason.

My question is, does joint custody always mean the father is to see his children 50% of the time or can it be 20-30%. Also, I heard that if I do not fight for 50% now prior to the decree being written (I think that's what its called) - chances are I will never receive it in the future.

I will not be able to be with my son more than 25-30% of the time (only working parent) in the next 2-3 years. Hypothetically, If I get 50% but do not exercise it - will I be looked upon negatively by the court?

Attorney Answers 4

  1. There are two types of custody, legal and physical. The norm for parents who are not able to do a 50/50 split or something close to it is that one parent will get primary physical custody and the parties will share legal custody. The split you are contemplating now would be the scenario I just mentioned. What you might want to focus most of your time on in the proposed judgement is the parenting plan. You should carefully lay out when you would like to spend time with your son, including, weekends/week day visits, holidays, school vacations, summer vacation and any travel you would like to do with him.

    Any custody arrangement entered into now will likely be the basis for any custody decisions in the future. If you were to get joint custody now, and it was in name only, the court would look at the actual arrangements if there were any disputes in the future, and base any request for modification/removal on that arrangement. Best of luck!


    Karla Mansur, Esq.
    Law Office of Karla M. Mansur, LLC
    81 Middle Street
    Concord, MA 01742
    P: (978) 341-5040 / F: (978) 401-0687

    I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state

  2. I agree with my colleague's description of the types of custody. I would add that shared custody doesn't always mean 50% custody. For example if a parent lived in a distant state I have seen the Court award shared custody with that parent seeing the child only during school vacations and most of the summer. Calling it shared custody will impact how child support is calculated. You can reciew the Child Support Guidelines to see how that is done, if you haven't already done so. Fightin for custody (and losing) isn't the critical factor in being able to modify later - it is whether there has been a substantial change in circumstances since the decree that would justify shared custody. The Court, at a later time, might wonder why you fought for shared and didn;t take advantage of it. Also, if the Court ordered shared with a specified schedule that you did not comply with, your wife could return and request a modification to sole custody - again - impacting child support. Good luck.

  3. If you are unable to spend equal amounts of time with your child, it is likely that the court will grant joint legal custody (meaning both parents have equal say in making major decisions regarding the child) and award sole physical custody to one parent with the other receiving visitation. You should focus on creating a parenting plan that clearly lays out the times you will have you child - weekends, weekdays, holidays, school vacations, etc. Make it as specific as possible.

    The court will base any future modifications or contempts on what was actually occurring rather than what was written on paper. However, if your work schedule changes in the future, permitting you to spend more time with your son, you may request additional time with him. Make sure you emphasize the fact that you are not seeking joint physical custody at this time due to your work obligations. Thus, if your work obligations change in the future, it may be used as a basis to request a modification.

    I commend you for wanting to remain an active part of you child's life and wish you and your family all the best.

    This is intended for general informational purposes only and does not constitute legal advice. The content of this site may not reflect the most current legal developments. Do not consider this site to be a substitute for obtaining legal advice from a qualified attorney licensed in your state or country, and do not act or refrain from acting on the basis of the information contained herein. I am not responsible for any errors or omission in the content of this site or for damages arising from the use of this site under any circumstances. This does not create an attorney-client relationship.

  4. The proposed judgment and parenting plan is such an important document that I would highly recommend that you find an attorney who would write it for you. I assume the Judge gave you a deadline. Best wishes.

    This is not legal advice until I am retained and have reviewed all facts about your situation.

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