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If the parents are not married, how does the judge decide custody?

Produced by Massachusetts Law Reform Institute
Reviewed February 2022

The mother has sole legal and physical custody of your child if there is no court order about custody of your child.

If you are not married and you need a custody order, the judge must1 :

  • preserve the relationship between the child and their primary caretaker as much as possible;
  • take into account who the child  lived with during the 6 months before the custody case began;
  • take into account if the parent has a personal and parental relationship with the child; and
  • take into account if the parent has exercised parental responsibility in the child’s best interest, like providing a home, making medical appointments, and getting your child to school on time.

The judge can only order shared custody if the parents have

  • a custody agreement; or
  • successfully exercised parental responsibility together, like making good decisions jointly,  before the case was filed.

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