Increasing Trend:Shared Physical Custody

As traditional gender roles become more outdated and both parents head into the workforce, shared (or joint) physical custody has become more common. Well, what does this mean? In order to delve further into this topic, you must first understand the differences between legal and physical custody (See my previous blog defining legal and physical custody http://wp.me/p3fUOK-14).

In the Commonwealth of Massachusetts, mothers and fathers[i] have equal rights in custody cases. It is a common misconception that mothers are more likely to obtain custody of the children during divorce or custody proceedings. This inaccurate assumption stems from the antiquated Tender Years Doctrine, which is no longer utilized by the courts. The Tender Years Doctrine established a presumption that mothers should have custody of younger children based upon the notion that young children must to stay close to their mothers for love and support. This was also during a time men and women more commonly conformed to traditional gender roles.

Currently under Massachusetts Law, there is no gender preference given to a parent based solely upon gender. Modern families are finding that the “new normal” consists of two separate households, two sets of expenses, and two fully employed parents.  Thus, more parents are finding that shared physical custody can be beneficial to not only father (who would like to enjoy more parenting time), but also to mother (who would like for father to share in the responsibility of parenting duties). However, in order for a shared physical custody parenting plan to succeed, parents must be able to communicate with each other in a healthy, productive manner. The parties must also take into consideration what is in the best interest of the children. As well as, whether it is possible to establish a stable schedule with few parenting exchanges. Therefore, in order for this parenting arrangment to succeed a custody arrangement must be thoughtfully drafted and may not be appropriate in most cases.


[i] When a child is born to parents who are not married, fathers must first establish paternity prior to asserting their rights as a parent. This differs from a child born to married parents, as the father’s parental rights are presumed to be established.

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Filed under Custody, Divorce

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