How Living Together Affects Custody of Children from a Prior Marriage

  • By:Karpenski & Schmelkin

While living together outside of marriage was once considered socially unacceptable, it is now very much the norm. The majority of couples cohabitate prior to marriage and many couples never choose to legally marry. If you have children from a prior marriage, however, you may wish to reconsider living with a new partner if custody of the children remains in dispute.

Custody Basics

Anytime the parents of a minor child no longer live together, whether because of divorce, legal separation, or because they never lived together, the issue of custody of the child must be addressed. In Massachusetts “custody” may refer to legal and/or physical custody of the child. There are basically four types of custody arrangements, including:

  • Sole legal custody. One parent has the right and responsibility to make major decisions about the child, including decisions relating to education, medical care, religion, and emotional development.
  • Shared legal custody. Both parents share the right to make major decisions about the child, including decisions relating to education, medical care, and emotional, moral, and religious development.
  • Sole physical custody. The child lives with one parent most of the time and the other parent exercises reasonable parenting time (unless a court determines otherwise).
  • Shared physical custody. The child splits his/her time equally (or as close to equal as possible) with each parent.

How Are Custody Disputes Decided?

When the custodial decision must be made regarding a minor child, the parents will ideally work out an agreement between them that the court approves. If the parents are unable to reach an out-of-court agreement regarding custody, the court must intervene. Like all decisions made that impact a minor child, the court is required to decide custodial issues using the “best interest of the child” standard.

In Massachusetts, Mass. Gen. Laws Ch. 208 §31 governs custody of children. That statute does not require a judge to consider specific factors when deciding what is in a child’s best interest. Instead, the law states “When considering the happiness and welfare of the child, the court shall consider whether the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.” Factors a judge may consider when deciding custody of a minor child include:

  • The ability of each parent to provide the child with food, clothing, shelter, and other necessities.
  • The relationship each parent has with the child.
  • The child’s home, school, and community record.
  • A history of domestic abuse or child neglect if one exists.
  • The willingness of each parent to foster a frequent, continuing, and quality relationship between the child and the other parent.
  • The moral fitness of each parent
  • The physical and mental health of each parent.
  • Other factors the judge deems relevant.
  • Living Together and Child Custody

The law does not specifically prohibit a parent seeking custody of a minor child from living with a new partner outside the bounds of legal matrimony.  In fact, the law does not directly address the issue of cohabitating.

Nevertheless, if you are in a custody dispute, or you foresee one in the near future, you may wish to reconsider living with a new partner while the litigation is ongoing. A judge can consider your living arrangements when deciding custody of your child. The judge can also take into consideration the moral fitness and mental health of any other adult living in your household. Moreover, judges tend to place a significant value on stability when deciding custodial disputes regarding minor children. Adding someone new to your child’s life may be viewed as a destabilizing factor during a time when stability is crucial.

On the other hand, if you have concrete plans to marry, living with your fiancée may not be seen in quite the same negative light. In fact, it could be viewed as a positive factor in a custodial dispute if you and your spouse-to-be can provide a stable family life for your child. Because each scenario is unique, it is best to consult with an experienced custody lawyer to determine whether living with someone while litigating custody is in your best interest.

Posted in: Child Custody