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  1. #1
    Join Date
    Feb 2011
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    1

    Default Getting Joint Physical and Legal Custody of a Child, Mass. R. Dom. Rel. P. 41 (A) .

    My question involves a child custody case from the State of: Massachusetts

    My wife and I are getting back together, and are looking for an apartment where the three of us (me, wife, son) can live together.

    Prior to us reconciling she had sole physical / legal custody of our son, but she had been letting me spend more time with him beyond the visitation plan that had been in place. He has spent nights at my home.

    She and I had talked about wanting to end the divorce, but my concern was that I did not simply want to just drop the divorce but that I wanted to make sure that I had been awarded joint phyiscal / legal custody of our son. My wife agreed to this, saying she had no problem with my having joint physical / legal custody of our son. It should be noted that I have also been paying child support (am not behind), it gets automatically taken out of my paycheck per court order.

    My attorney has a habit of agreeing with me on a matter, then backtracking when under pressure. He had told me that he asked opposing counsel for both a parenting plan (should the reconciliation fail) and joint physical / legal custody in order for the divorce case to be dropped. Opposing counsel stated that simply dropping the divorce will be enough to grant me the protection that I need.

    The paper I signed references Mass. R. Dom. Rel. P. 41 (a), and when I look at that I don't understand how simply reconciling and moving back in with my wife will really give me joint physical / legal custody of my son. Furthermore, I do not see how the court is just going to say "Oh, you guys are living together again, we'll order child support to be dropped!". Am I worrying over nothing here, or did the wife's attorney just get away with murder here?

    What happens if my wife and I break up in the future? Will I then have joint physical / legal custody to start out with if I pursue divorce again? Or will she just be able to say "Oh, let's pick up where we left off, me having sole physical / legal custody of our son"?

    Please help!

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: Getting Joint Physical and Legal Custody of a Child, Mass. R. Dom. Rel. P. 41 (A)

    If you want a custody order, get divorced or get legally separated (if possible in your state). If you want to reconcile, you'll have to deal with the fact that intact marriages aren't subject to custody orders. If your lawyer disagrees with that, ask him to cite the provision of law under which it would be possible to get such an order.

    If you merely want a piece of paper that says, "I have joint custody now that we're back together", that follows from the fact that you're back together and the custody order has been dismissed. It would mean nothing in the event that you later separate. If your lawyer disagrees with that, ask him again to cite case law or statutory law to the contrary.

    How do you imagine that a court would continue a child support order if the underlying case is dismissed?

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