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How is custody determined?

I am the mother of has a newborn, living with but not married to the baby's father. The baby's father has another child from a previous relationship and is required by the state to pay child support to the mother. Last month he was sent to jail by the judge for neglecting to pay her. He has been unemployed for over six months, and cannot collect unemployment because he was fired or quit his last two jobs. He has a drinking problem, has stolen my credit cards on several occasions, and becomes angry and destructive when he has been drinking. I have given him many chances over the course of our relationship and my potency to get himself straightened out, but the behavior has continued since the birth of our son. He is verbally and emotionally abusive towards me, and expresses his anger by breaking things in our home. I have tried to break up with him and kick him out on several occasions. But everytime he threatens to take me to court and take custody of my son away from me on the grounds that I occasionally smoked marijuana while I was pregnant. I would like to know if his threats hold any weight. I have been employed at the same company for over three years and have neen supporting him for over a year. I do smoke marijuana on occasion but I am a responsible person who loves and cares for her son. In a case such as this, how would custody be determined?

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Sorry about your situation.  You can follow this link for some general information about custody of children in Massachusetts. In Massachusetts the question of custody for children when the parents are not married is determined with reference to Massachusetts General Laws Chapter 209C. If the paternity of the father has not been been established through acknowledgment, birth certificate, or paternity test, then he has no standing or ability to claim any form of custody and the mother is presumed to have sole legal and physical custody.  In cases where paternity is established or acknowledged, custody and visitation will be determined through a Complaint for Custody, Visitation and Support.  In custody disputes (let's assume your boyfriend would actually attempt to obtain custody of the child), the court will always attempt to find a custody arrangement that is in the best interest of the child.  Often, that means leaving the child with the person who has been the primary caretaker.  The judge may vary from this formula in cases where the primary caretaker has a serious drug of alcohol problem.  While I can't recommend smoking marijuana around your child, your casual use does not seem like a deciding factor. Having said that, if I were in your shoes, I would quit. If it becomes an issue, instead of having to admit to continued use of a drug, I would rather be able to tell the court that I no longer smoke marijuana.
You should also be aware of the role that domestic abuse can play in custody decisions.  Under some amendments to Massachusetts General Laws Chapter 208, Section 31A, and M.G.L. Chapter 209, Sections 209A and 3, there is a statutory presumption against awarding custody of a child to a parent who has committed a pattern of abuse toward the other parent or the child.  The presumption applies in cases where one parent attempted to cause or caused serious bodily injury, placed another person in reasonable fear of imminent bodily injury, or caused another person to engage in involuntary sexual relations.  I encourage you to contact an attorney to discuss this matter.  Hopefully you will, as quickly as you can, get yourself and your child away from your present living arrangements.  If you cannot afford an attorney, you can look into finding representation for free or at a reduced rate. 

I don't have any advice for you but wanted to let you know that I am in the same exact situation. Almost word for word, except I occasionally have a drink and my daughter's father was sent to jail for domestic violence against me (he's now out and is seeking custody and the claim that I am an "alcoholic"). I'm so sorry to hear that you are going through the same thing. I know how much pain, fear, and worry that it causes but know in my heart that if we do the right things and just protect our children, everything will work out. And remember, even if your son's father is good to your son, the fact that he emotionally/verbally abuses you IS emotional abuse to your son. Keep your head up dear.

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