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How does the judge decide which parent should have custody?

Produced by Massachusetts Law Reform Institute
Reviewed July 2023

Judges must decide custody based on “the best interests of the child." The “best interests of the child” law requires courts to focus on the child's needs and not the parent's needs. The law requires courts to give custody to the parent who can meet the child's needs best1.

Judges look at many things to see what is in your child's best interest:

  • Will your child have a safe place to live?
  • Will your child be well-fed and clothed?
  • Will your child be supervised enough?
  • Will your child get enough emotional support?
  • Which parent has been taking care of your child?
  • Does either parent abuse your child?
  • Does either parent abuse drugs or alcohol?
  • Does either parent expose your child to domestic violence?


1 The law says that in making an order or judgment concerning the custody of children, "the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral, or emotional health." General Laws, Chapter 208, section 31.


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