In order to get custody of your sibling in Massachusetts, you must be familiar with child custody laws in Massachusetts. Child custody refers to the set of laws that grant a set of legal rights to a biological or adoptive parent in Massachusetts.
It is important to note that child custody laws in Massachusetts automatically grant child custody rights of a child to their biological mother upon the birth of the child. The rights are also automatically granted to married fathers of a child.
Child custody may also be obtained upon receiving custody of a child in a divorce or legal separation setting. For example, if two parents were married and both had automatic rights to custody of a child later split, child custody laws will be used to determine the custody rights of each parent.
It is important to note that a parent who has custody over their child in Massachusetts will have certain parental rights to make important legal decisions on behalf of that child. Examples of such rights include, but are not limited to:
- The right to make educational decisions for the child, such as what type of school they go to and other educational choices
- The right to make religious decisions regarding what religion to raise the child in
- The right to make legal decisions on behalf of the child, such as whether or not to enter into certain legal contracts on behalf of their child or the right to represent their child in a lawsuit
- The right to make medical decisions for the child, such as whether or not the child should undergo invasive and noninvasive procedures
- The right to consent to the marriage of the child if underage
- The right to make decisions regarding the psychiatric treatment of the child
- The right to choose whom the child associates with
It is important to note that in Massachusetts, non-parents that are interested in obtaining custody must now file for guardianship of a minor. As such, a non-parent cannot obtain custody over a minor child, but must rather seek a guardianship.
What Is the Process for Obtaining Custody of a Sibling?
In Massachusetts, a family court will consider certain factors when awarding custody of a child. As mentioned above, for siblings specifically, the Massachusetts law does not allow the sibling to obtain custody; instead, they may seek to obtain guardianship over their minor sibling.
In order to get custody of your sibling in Massachusetts, you’ll need to go through the legal process of becoming their guardian. This includes filing a “Petition for Appointment of Guardian of a Minor” (MPC 140) with the local Probate and Family Court where your sibling lives.
Additionally, you must submit an “Affidavit Disclosing Care and Custody” (OCAJ-1) and a “Bond” (MPC 801). It is important to note that if the parents agree to the guardianship, they may sign a “Notarized Waiver and Consent to Petition” (MPC 440). This will allow you to skip certain steps in the guardianship process.
If the parents do not agree to the guardianship, then you must prove they are unfit or incapable of caring for your sibling. Examples of unfit parenting include abuse, neglect, or abandonment. In contested cases, you will likely attend court hearings, during which a judge will review your petition and any evidence you provide.
It is important to note that when the court is making a decision as to whether or not to grant a guardianship to a minor, the court will utilize the child’s best interest standard. The child’s best interest standard is a legal standard that all family courts adhere to when making decisions regarding children. Under the child’s best interest standard, any decisions that will affect a child, such as a minor guardianship, should ultimately benefit and protect the child.
As such, when it comes to awarding a minor guardianship of a child to their sibling, the sibling must follow the same process as a parent seeking custody. In other words, in order to get custody of a sibling, the older sibling will need to follow the proper procedures of filing for minor guardianship noted above.
How Old Do You Have to Be to Take Custody of a Sibling in Massachusetts?
In order to obtain legal guardianship of a sibling in Massachusetts, the older sibling seeking custody must be at least 18 years of age or older. Further, the sibling that the older sibling is seeking to gain guardianship over must be under 18 years of age or otherwise legally dependent.
Can a Sibling Be a Legal Guardian?
As mentioned above, yes, under Massachusetts law, a sibling may be the legal guardian of a younger sibling. However, when it comes to being named legal guardian of a younger sibling, a family law court will typically only award an older sibling legal guardianship in limited circumstances.
For instance, if there are no parents or grandparents alive to be named legal guardians of the minor child, or if there is evidence of child abuse, then the older sibling may be considered for legal guardianship over their minor sibling.
It is important to note that legal guardianship over a minor and custody are not the same. First, a parent who objects to someone else taking guardianship over their child or children may get a lawyer appointed at public expense if they cannot afford one.
Second, the person who files for minor guardianship must notify more people about the case than if they were filing for non-parent custody like in the past. Any interested party must be notified.
Finally, someone who obtains minor guardianship over their sibling can choose to have physical custody of the children, i.e., their sibling lives with them most of the time. This is the same as if the court awarded them non-parent custody. However, they can also choose to let the children live with someone else, such as an aunt, uncle, grandparent, etc.
What Else Should Be Considered?
It is important to also consider the costs associated with obtaining legal guardianship of a sibling. When it comes to estimating the overall cost of a guardianship case, the following will affect the cost:
- Whether or not the guardianship is contested. If the guardianship is contested, the dispute will likely be more complicated and include taking depositions, filing temporary motions, and excessive court hearings. It may also include the hiring of expert witnesses, such as child psychologists and other experts.
- When it comes to guardianship cases, it is often advised to seek representation from a local attorney in Massachusetts. Attorney fees will then vary based on the amount of time the attorney spends on the guardianship case, as well as their hourly fee.
- There are also miscellaneous fees that add up quickly in guardianship cases, including paying process servers, paying court costs, undergoing a background check, taking a guardianship course, and paying for certified copies of documents.
Additionally, it is important to understand that, unlike custody orders, guardianship orders must be annually renewed. This means that once a year, you’ll need to file an annual report with the probate court. This is called an “Annual Report Form.” You’ll be responsible for filing the report in a timely manner, and the court will not typically send you a reminder.
Do I Need an Attorney for Sibling Custody Issues?
As can be seen, when determining whether or not an older sibling should be named as legal guardianship over their minor sibling, numerous factors will be considered. As such, if you are seeking to be named the legal guardian of a sibling, it is in your best interests to consult with an experienced Massachusetts child custody lawyer.
LegalMatch can assist you in setting up an initial legal consultation with a custody lawyer in your area. An experienced child custody attorney will be able to help you understand Massachusetts’ specific laws on a sibling obtaining guardianship over a minor sibling.
Additionally, an attorney will also be able to help you gather the evidence necessary to prove that naming you as legal guardian is in the child’s best interests. An attorney will also be able to guide you through the process of filing the application for guardianship and doing all of the necessary background checks and guardianship courses. Finally, an attorney will also be able to represent you in court, as needed.
