USA – MASSACHUSETTS LAW AND PRACTICE Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
posture later be used against them in a court process. Unlike financial questions, Massachusetts law generally does not favour the arbitration of child custody issues. Massachusetts law vests the Family and Probate Court system with the responsibility to adjudicate the care and custody of the children by determining what is in their best interests. As such, judges will not blindly accept an arbitrator’s determination of custody matters. Parties instead may refer some of their ongoing disputes relating to the care and custo - dy of a child to a parent co-ordinator – a neutral third party trained and certified by the Common - wealth of Massachusetts to help resolve custo - dial issues. However, the scope of their authority is bound by Massachusetts law – specifically, Probate and Family Court Standing Order 1-17. 3.5 Media Access and Transparency In Massachusetts, child custody cases filed in the Probate and Family Court are part of the public record and are generally open to the pub - lic, including the press. Recordings of the hear - ing are also available by request. A particular judge may, at their discretion, decide to close the courtroom to the public and hold the hearing without anyone but the parties, their counsel, and court personnel present. Regardless, that does not mean that a recording of the hearing is not available to the public upon request. Certain types of cases, however, are confidential and not open to public inspection. These include adoptions, cases involving child welfare, guardi - anship cases at the request of a child, abuse prevention cases involving a minor, and paternity cases where an alleged father is found not to be the father.
Pleadings in the Probate and Family Court are also considered part of the public record and are available either online or by requesting a case’s physical file at the registry in each courthouse. Certain documents, however, are also confiden - tial and will not be made available to anyone except the parties and their counsel of record. Personnel at the registry are expected to extract these documents before providing a member of the public with the file and they are not avail - able online. Besides financial records, records from the Department of Children and Families are also confidential. Reports from guardians ad litem have a heightened degree of confidential - ity – the parties themselves are not permitted to have a copy and may only read and review those reports at the courthouse or at their attorney’s office and may not make copies or disseminate their contents in any way. Either or both parties may seek that a portion of the file, or the entire file itself, be impounded and, as such, be made unavailable to the pub - lic. Generally, these requests are rarely awarded. The judge weighs the countervailing interests – the party or parties’ right to privacy against the public interest in an open and transparent judi - cial system. In order to seek impoundment, a litigant must file a motion to impound along with a sworn affidavit that outlines what they seek to impound and the reasons therefore. It is then up to the discretion of the judge as to whether a file, or portions of it, should be impounded and for how long, as there is typically a limitation on the length of time a file may remain impounded.
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