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Who has custody?

Produced by Massachusetts Law Reform Institute
Reviewed July 2023

If you have a court order about custody, the order says who has legal and physical custody.

If you don't have a court order, custody depends on if you are married to the other parent.

If you are married

If you are married and you have not been to court about custody, you share physical and legal custody with your spouse.

You both have the right to live with your child and make decisions about your child's life.

You may need to file a custody case if the other parent:

  • keeps you from having your child live with you, or

  • does not let you be part of making major decisions about your child’s life.

You or your spouse may need to ask the court for a legal or physical custody order.

If you or your spouse files a court case to ask for custody, both of you still share legal custody until the court makes an order.

If you are not married

If you are not married, the mother has sole physical and legal custody of your child, even if there is no court order about custody.

A mother might need to get a court order that says she has custody if her child’s father:

  • tries to keep her from having their child live with her, or

  • tries to keep her from making decisions about their child’s welfare.

For example, a mother may need to show the police a custody order if she needs their help to get her child back from the father.

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