How to File for Custody in Massachusetts

Whether you're an unmarried parent establishing custody for the first time or a married parent filing within a divorce, the process runs through the Massachusetts Probate and Family Court. The court handles all custody matters across 14 county divisions, and the specific forms, fees, and procedures depend on your marital status.

Here's the important baseline: if you're an unmarried parent and no court order exists, Massachusetts law gives the parent who gave birth sole legal and physical custody by default. The other parent has no legal custodial rights until a court order is established — even if their name is on the birth certificate.

For Unmarried Parents: Complaint for Custody

Unmarried parents file a Complaint for Support-Custody-Parenting Time (Form CJD-109) in the Probate and Family Court.

Step 1: Establish Parentage

Before the court can address custody, parentage must be legally established. This happens one of two ways:

• Voluntary Acknowledgment of Parentage — both parents sign a form at the hospital at birth or later at the Registry of Vital Records
• Complaint to Establish Paternity — if parentage is disputed, you file a separate complaint, and the court may order genetic testing

If a Voluntary Acknowledgment was signed, parentage is already established. You can proceed directly to the custody complaint.

Step 2: File the Complaint and Supporting Documents

Bring the following to the Probate and Family Court registry in the county where the child lives:

1. Complaint for Support-Custody-Parenting Time (CJD-109)
2. Child Care or Custody Disclosure Affidavit (required by Trial Court Rule IV)
3. Certified copy of the child's birth certificate or Voluntary Acknowledgment of Parentage
4. Military Affidavit (TC0002) — confirms the defendant's military status
5. Rule 401 Financial Statement — if you're also requesting child support

Filing cost: $100 court fee + $15 surcharge + $5 summons fee = $120 total. Fee waivers are available through an Affidavit of Indigency.

Step 3: Serve the Other Parent

The court issues a summons that must be delivered to the other parent by a constable or deputy sheriff. You cannot serve the papers yourself. Once service is complete, file the Return of Service with the court.

Step 4: Attend the Pathways Case Management Conference

Under Standing Order 2-25, the court schedules a Pathways 1 Conference within 30 to 45 days of filing. A court staff member assesses the case and assigns it to one of three tracks:

• Pathway 1: Case management conference to narrow issues
• Pathway 2: Guided resolution through mediation or conciliation
• Pathway 3: Judicial intervention for high-conflict cases headed toward trial

For Married Parents: Custody Within a Divorce

Married parents don't file a separate custody complaint. Custody is addressed within the divorce filing:

• 1A Joint Petition (CJD-101A) — both spouses agree on all terms including custody, and submit a separation agreement with a parenting plan. Cost: $215.
• 1B Complaint for Divorce (CJD-101) — one spouse files, and custody is contested or negotiated during the case. Cost: $220.

In both cases, custody and parenting time are part of the final divorce judgment.

The Mandatory Co-Parenting Class

Regardless of how you file, parents in contested custody or divorce cases must complete the "Two Families Now" co-parenting education program. Under Standing Order 3-23:

• Register within 30 days of serving the complaint
• Complete the 4-hour online course within 30 days of registering
• File the Certificate of Completion with the court within 14 days of finishing

The course costs $49 per parent. Fee waivers are available.

Temporary Orders While the Case Is Pending

Custody cases can take months to resolve. If you need an interim arrangement, file a Motion for Temporary Orders (CJD-400) requesting temporary custody and a parenting time schedule. The other parent must receive at least 10 days' notice before the hearing.

Temporary orders are critical because Massachusetts judges are conservative about stability — the schedule established during the case often becomes the baseline for the final order.

What the Court Decides

The Probate and Family Court uses the best interests of the child standard for all custody decisions. Key factors include:

• Each parent's relationship with and caregiving history for the child
• The child's educational, physical, and emotional needs
• Each parent's capacity to provide a stable home
• Any history of domestic violence or substance abuse
• The child's preference, if the child is old enough and mature enough to express one

Massachusetts law starts from the presumption that both parents are equal. There is no statutory preference for mothers over fathers.

Building a Strong Custody Case

The strongest custody cases are built on preparation — having a detailed parenting plan, understanding the court's scheduling tracks, and knowing what evidence matters. The Massachusetts Child Custody & Parenting Plan Guide walks through each step of the process with worksheets and templates for building a plan the court will take seriously.

See more Massachusetts guides →