Massachusetts Custody and Visitation Law
Massachusetts courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no published cases dealing with transgender parents. Courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for custody and visitation.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Massachusetts courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Massachusetts law states: “In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.”
In a 1980 case, Bezio v. Patenaude, the Supreme Judicial Court of Massachusetts held that a mother’s sexual orientation did not necessarily preclude her from obtaining custody of her children. The court held: “Natural parents should be denied custody only if they are unfit to further the welfare of their children. … In the total absence of evidence suggesting a correlation between the mother’s homosexuality and her fitness as a parent, we believe that the [trial] judge’s finding that a lesbian household would adversely affect the children to be without basis in the record.”
This principle was affirmed in 1983’s Doe v. Doe when the Appeals Court of Massachusetts found that: “There is no evidence to show that the wife’s lifestyle will adversely affect [the child].”
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Courts will allow a same-sex co-parent (with no legal or biological relationship to the children) to petition for custody and visitation.
In a 2006 case, the Massachusetts Supreme Judicial Court ruled that a same-sex co-parent who failed to adopt the child during the relationship did not meet the requirements of establishing herself as a “de facto” parent and was not entitled to custody and visitation.
In a 2004 case, T.F. v. B.L., the Massachusetts Supreme Judicial Court ruled that a same-sex co-parent did not have an obligation to pay child support for the child planned for and conceived during the couple’s relationship.
In a 1999 case, E.N.O. v. L.M.M., the former same-sex partner of the child’s biological mother was granted visitation rights. The court found that the former partner qualified as a de facto parent — one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. The court found that it was in the child’s best interest to have a continuing relationship with her.
Citations: Citations: MASS GEN. LAWS, ch. 208, § 28; § 31; A.H, v. M.P., 857 N.E.2d 1061 (Mass. 2006); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980); E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999), cert denied 528 U.S. 1005 (U.S. 1999); T.F. v. B.L. 813 N.E.2d 1244 (Mass. 2004).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 1/4/2007