When is Joint Legal Custody Inappropriate?

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Massachusetts courts recognize two distinct types of custody of children. The first, physical custody, is what most litigants mean when they refer to having “joint custody” or “primary custody” of their child. Physical custody is a term that describes the amount of time the child spends in the care of each parent. Although physical custody is often the aspect of divorce or custody litigation that is most contentious, the second type of custody – legal custody – is also a fundamental element of parental authority. Legal custody refers to the parents’ rights to make “major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” M. G. L. c. 208, § 31. Legal custody can be either joint, in which the parties must confer with each other and reach shared decisions on these types of matters, or sole, in which one parent has the ability to make decisions about the child’s health, education, or religion, even if the other parent disagrees. Joint legal custody, at a minimum, requires “two capable parents with some degree of respect for one another’s abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions.” Rolde v. Rolde

The majority of litigants assume that, should their case proceed to trial, a Probate and Family Court judge will award the parties shared legal custody, even if one party does not receive the physical custody arrangement he or she is seeking. However, a recent, unpublished decision demonstrates that there are cases where shared legal custody is not appropriate in the best interests of the child.

In Ogles v. Johnson, an unpublished Memorandum and Order Pursuant to Rule 1:28, the Massachusetts Appeals Court reversed a Probate and Family Court Judge’s grant of shared legal custody. Despite a finding by a Court-Appointed Guardian Ad Litem (GAL) that the father had perpetrated domestic violence against the mother, and a further finding by the trial judge that the parties had a historically volatile relationship, the Probate and Family Court nonetheless ordered the parties to have shared legal custody of their child on the basis that they had been able to make joint decisions about the child in the past.

The Appeals Court held that this decision constituted an abuse of discretion on the part of the Probate and Family Court judge. The Court wrote that, “though the judge did find that the parties have been able to agree on some decisions regarding the child, for the most part, the findings describe a contentious relationship.” Accordingly, the Appeals Court held that the Probate Court’s findings did not support the conclusion that the parties could “meaningfully cooperate in making decisions for the child.” This decision is evidence that Massachusetts courts will not hesitate to order sole legal custody to one party in cases where the parents have a historically high-conflict relationship.


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