There are four house bills that propose changes to the current custody statute. However, H.1306 and H.2684 are practically the same, though the language in each and the numbering of sections differs slightly. We will review H.1306 primarily in this post and will simply note how H.2684 is different. H.1306 was filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. H.2684 was originally referred to the Committee on Children, Families and Persons with Disabilities, but on April 13, 2011 was discharged and on May 5, 2011 was referred to the Joint Committee on the Judiciary where all of the similar bills are awaiting action as well.



H.1306 – Legislation relative to shared parenting in cases of divorce. (H.2684 – Legislation relative to supporting children and parental custody.)



Similar to the two previously reviewed Senate proposals, these proposed bills replace large sections of the current statute, replacing them with greater presumptions for shared custody. H.1306 is divided into 8 sections (H.2684 is 7 sections). These bills make no changes to the definitions of custody and make no additions to the definitions.



Section 1 of H.1306 then deletes the following language:

Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended in the sixth paragraph by striking the following:.- 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.

Section 2 of H.1306 replaces this language with the following:

Said section 31 is hereby further amended by inserting after the sixth paragraph the following new paragraph:- In furtherance of the public policy that the happiness and welfare of children is enhanced by frequent and continuing contact with both their parents, upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine, the parents shall have temporary shared legal custody and shared physical custody of any minor child of the parties. In making an order or judgment relative to the custody of a minor child, there shall be a presumption that, absent emergency conditions, or abuse or neglect of said child, the parents shall have shared legal custody and shared physical custody of said child. The judge may enter any order or judgment for sole legal custody for one parent and/or sole physical custody for one parent if written findings are made setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody. In making any order or judgment concerning the parenting schedule of each parent with a minor child, the rights of the parents, absent emergency, abuse, or neglect of one of the parents, shall be held to be equal, and the Court shall endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable. A change in the availability of one or both parents to parent a minor child, and/or a change in the developmental stage of a minor child, shall be presumed to constitute a material and substantial change in circumstances for the purposes of a complaint or counterclaim seeking to modify a parenting schedule or parenting plan incorporated into a judgment of divorce. Nothing herein shall be deemed to modify the provisions of G.L. c.208, sec. 31A.

Section 3 of H.1306 then deletes paragraphs 7-10 of the original statute, so that they are essentially replaced by the above language.



The combination of these changes would have the following effects:



1. Directs the court that frequent contact is in the best interest of the children, regardless of whether the past or present living conditions are adversely affecting the children.



2. Creates a presumption for temporary shared physical custody as well as shared legal.



3. Requires that in order to grant sole legal or physical custody the Judge must enter findings that the child would be harmed by shared custody.



4. Creates rights of the parents which shall be considered equal (absent abuse or neglect), and requires the court to make an effort to maximize time with both parents. This implies equal time, but doesn't explicitly require it, giving the Judges some room for discretion.



5. Allows parenting plans to be modified as children get older (and enter new developmental stages) or if either parent has a change in availability (i.e. a change in work schedule or living situation).



6. Deletes the presumption against shared custody in restraining order cases.



Bill H.2684 makes essentially the same changes but consolidates Sections 2 and 3 into one section, so the numbering hereafter will be off by one section. The only notable differences are the addition of an indication that the presumption of shared legal and physical custody shall be rebuttable and that said presumption:

may be rebutted by either party by a preponderance of the evidence that the other parent has engaged in a pattern or serious incident of abuse or neglect of the minor child.

H.1306 was less specific as to the evidentiary standard but essentially allowed for the same exception.



Section 4 of H.1306:

Said section 31 is hereby further amended in the twelfth paragraph, in the third sentence, by inserting after the words "The court may also reject the plan and issue a sole legal and" the following:- /or sole

The intention here is to clearly give the Court the authority to award sole physical custody but shared legal custody (or vise versa). Although, a strict reading of the current statute might not allow this, it is common practice anyway. Section 3 of H.2684 is practically the same with no functional difference.



Section 5 of H.1306 adds language requiring the court to make written findings "setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody" if the court rejects a shared parenting plan submitted by the parties. This is the same standard presumption created by this bill for temporary orders and is therefore consistent. Section 4 of H.2684 is practically the same with no functional difference.



Section 6 of H.1306 adds language to indicate that:

The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.

This will presumably protect parties who are unrepresented and don't know that they are required to file a parenting plan, by not punishing their rights for their failure. Practically speaking, though, they will not receive the same consideration as a parent who does submit a plan because the Judge will not have two proposals in front of them when making a decision. The thought here is nice, but in practice it would be a bad idea not to submit a proposal if you want your voice to be heard as well. Section 5 of H.2684 is practically the same with no functional difference.



Section 7 of H.1306 amends the child support section to say the opposite of what it currently states:

Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following:- If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.

This is vague enough to allow the Child Support Guidelines to control, and frankly given the amount of time and work that goes into the crafting of the Guidelines, this makes sense. It also resolves the apparent conflict between the current Guidelines and the current statute. Section 6 of H.2684 is practically the same with no functional difference.



Finally, Section 8 of H.1306 amends the last paragraph to again change the standard from "best interest of the children" to require a finding that the child "would be harmed as a result." This is consistent with the other changes proposed by this bill. Section 7 of H.2684 is practically the same with no functional difference.



Conclusion



These proposed bills have advantages over the senate proposals we reviewed because they at least recognize that equal time may not trump the need to make changes to the parenting plan based on the developmental stages of the child. Recognizing that different developmental stages of the child are relevant is an important factor to include when creating a presumption of shared physical custody.



The standard for overriding shared custody plans in these proposals is "harm to the child" as opposed to "best interest of the child" which is clearly a more stringent standard. Although, H.2684 includes both in its language, the existence of the more stringent language will control anyway and so the practical affect is the same. In reality, we're not sure it would make all that much difference anyway because "harm to the child" is still a vague and broad standard. Judges could presumably make a finding that anything not in the best interest of the child could cause them harm. Therefore, we are not that concerned about this stronger language, given that it's impact is likely more instructive as to the importance of the shared custody presumption.



Overall these are better structured bills than the two senate proposals, but these bills still go too far in our opinion by deleting the Restraining Order presumption language. This language could be amended to make it less objectionable, but deleting it altogether is irresponsible. If this one change could be made, then this is the first proposal that balances a shared physical custody presumption with other relevant considerations. As the language currently stands, however, we can not endorse either of these bills.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

The second senate bill that proposes amendments to the current custody statute is S00847. This proposal was filed in the Senate on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.



S.847 – Legislation to share custody of minor children of divorced or separated parents



This bill begins by deleting only paragraph 2-9 of the current statute and replacing just those parts:

Section 31 of chapter 208 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the second through the ninth paragraphs, and inserting in place thereof the following 3 paragraphs:

Before we look at what is being added, it's important to understand what this bill proposes to delete. Paragraphs 2-5 of the original statute define sole legal custody, shared legal custody, sole physical custody and shared physical custody.



Paragraphs 6-9 of the original statute create a presumption of temporary shared legal custody (with some exceptions for abuse or restraining order situations) and state that there shall be no presumption for permanent shared legal or physical custody and no presumption for temporary shared physical custody.



By deleting these paragraphs this proposed bill essentially deletes any distinction between legal or physical custody.



In place of these traditional distinctions the proposed bill inserts the following language:

To ensure minor children of frequent and continuing contact and a meaningful relationship with both parents after the parents have separated and divorced, it becomes necessary to encourage parents to share in the rights and responsibilities of child care and rearing. Primary considerations in awarding custody shall be given to both parents jointly in order to secure the best interest of the children by providing continuation of parent-child relationships. It is therefore the presumption of the courts that in most cases shared custody should be considered paramount to ensure the happiness and welfare of the children.



In all separation and divorce proceedings involving minor children, it shall be a presumption of the court that both parents have an inalienable right to share temporary and final legal, as well as physical, custody of the children unless one or both parents: (1) are proven to be unfit to such an extent and in such a manner as to cause immediate physical or emotional danger or damages to the children, (2) abandon the children, or (3) voluntary relinquish custody. An agreement signed by both parents defining the shared arrangements shall be the order of the courts, provided the parents have been apprised of their custody rights, or unless clear and convincing findings indicate that such an order would not be in the best interest of the children.



Only after the parents have attempted and failed to reach an agreement on the shared living arrangements of the children shall the court determine the shared arrangements. The children shall also have the right to reside and spend an equal amount of time with each parent, provided this sharing arrangement does not interfere nor disrupt the school term. If equal time is neither practical nor possible, the right of one parent to a minimum guaranteed amount of time per year with the children shall be established and protected by the courts.

The first paragraph indicates that shared custody (without reference to a legal/physical distinction) should be the default in most cases and states an ideology that shared custody is in in the best interest of the children.



The second paragraph indicates a presumption of both temporary and final, shared legal and physical custody of the children. This is a bit confusing since the definitions of legal and physical custody have been deleted. The only exceptions to these presumptions are enumerated specifically and include finding a parent unfit to the extent that they pose an immediate danger to the children, finding that a parent abandoned the children, or if a parent voluntarily relinquishes custody.



There is also a presumption that shared custody agreements will be enacted as court orders absent "clear and convincing evidence" indicating that the order is not in the best interest of the child. This is a much higher standard than the current statute, but practically speaking may not be much different than current practice. The Judges do not typically override parties' agreements for custody anyway.



The third paragraph creates a presumption of equal time for the children with each parent so long as such a schedule doesn't interfere with school. This takes the shared custody presumption one step further by specifying the importance of equal time. Even if equal time is not possible the proposed bill requires a minimum guaranteed amount of time with each parent.



Conclusion



There are numerous practical problems with this proposed bill. First, the deletion of the legal and physical custody definitions is inconsistent with still using those terms later in the statute. Second, the substitution of an absolute presumption for shared custody and equal time ignores certain instances where this may not be appropriate. As discussed in previous posts, equal time is not appropriate for very young children.



Furthermore, equal time is not appropriate in cases of abuse. The deletion of language relating to restraining orders and past abuse and the substitution of the suggested language would require a much higher standard be met to restrict parenting time. We have previously expressed concern about this type of language erring on the side of parent's rights above erring on the side of protecting children. The primary concern should be children's safety and development first, even before the rights of parents.



Based solely on the practical inconsistencies of this bill we could not endorse it. In addition, as we have indicated above, the presumption of shared physical custody and equal time above all other considerations goes much too far. S00659 went a little too far in our opinion but would be much preferable to this proposed bill.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

Having provided an in-depth review of the current custody statute in Massachusetts, we will now move on to our review of the six proposed bills that would significantly modify that statute.



The first bill we will review was filed in the Senate on January 19, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. This bill makes some changes which could be positive, but also suggests one change that in our opinion goes too far.



S.659 – Legislation to strengthen family relationships through responsible shared parenting



This bill begins by deleting the current statute and replacing it entirely:

Chapter 208 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out section 31 and inserting in place thereof the following section: -

However, much of the original language remains in this version, including the definitions of sole legal custody, shared legal custody and sole physical custody. The first difference is in the definition of shared physical custody, adding the italicized language:

"Shared physical custody", a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. The child is not required to reside with each parent for an equal amount of time during any given period.

These additions indicate a preference for equal time but also clarify the common-sense approach of sharing parenting time equally does not require counting every minute of every hour to ensure that the time is exactly equal.



Another change to the definitions in this proposed bill is the addition of a definition for the term "parenting plan":

"Parenting plan", an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.

This addition requires the Courts to create a standardized parenting plan format. This format could presumably be reduced to a form with certain required details for each case, which would result in more consistent parenting plans. Having standardization would protect pro se parents (those without attorneys) by helping them understand what issues their agreements should address. However, this approach would also reduce the flexibility which parents have in crafting their own parenting plans currently. How the Chief Justice implements this section could make a big difference on how flexible parenting plans could be in the future.



The next section of the current statute is largely superfluous because it doesn't add anything to later sections. However, this proposed bill would change this paragraph significantly by adding the following italicized language:

There shall be a rebuttable presumption that shared legal and shared physical custody is in the child's best interest. In making an order of 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 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 the physical, mental, moral or emotional health of the child, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. The court shall further consider the capacity and disposition of each parent to comply with the terms of the parenting plan.

The current statute contains only one presumption, temporary shared legal custody. This means that there is currently no presumption for temporary or permanent shared physical custody or even for shared legal custody at a trial. The addition of the first sentence above, would change that completely, by creating a presumption for both throughout the case.



The addition of the "willingness" clause specifically addresses the fact that shared custody is often denied because one parent refuses to cooperate with the other. However, pointing it out specifically as a factor does not solve the problem that these cases are hard, not because of a vague standard, but because of the difficulty in obtaining evidence of alienation. It is very tricky to prove, especially with the evidentiary limitations on hearsay, that a person is not being cooperative or trying to alienate the child. This section clarifies that a Judge should consider this evidence, but doesn't solve the problem of how difficult it is to get that evidence in the first place. Even with this change, these types of cases will remain very complicated, and probably still require the involvement of a Guardian at litem.



As further enforcement of these new presumptions, the proposed bill adds a presumption of temporary shared physical custody to the presumption of temporary shared legal custody. This means that at a temporary order hearing, a Judge will have to order shared physical custody unless he or she makes a finding that shared custody would not be in the best interest of the child. This proposed bill also deletes the language that specifically allowed the Judge to consider "whether the parties have a history of being able and willing to cooperate in matters concerning the child." Of course, deleting the language carries some weight, but since this proposal doesn't preclude the Judge from considering this information it could still be considered under the "best interest of the child" standard.



The next section in the current statute was a further exception to the shared legal custody presumption in cases involving a restraining order. If a restraining order issued, under the current law, then the court must provide findings to allow shared custody. In other words, the Judge must have a good reason for allowing shared custody if their is a restraining order. This is essentially a presumption that the standard which must be met to obtain a restraining order (history of physical or sexual abuse or a reasonable fear or imminent serious physical harm), is sufficient to suggest that shared custody would not be appropriate.



This proposed bill turns that presumption around:

If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, section 38 of chapter 209, section 3 of chapter 209A, or section 10 of chapter 209C and issues a temporary or permanent custody order which does not grant shared physical custody, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child?s best interests and provides for the safety and well-being of the child.

This language requires that a Judge not make any changes to the shared custody presumption due to a restraining order, unless the Judge finds that the abuse affects the child, and the limitations are in the best interest of the child. The requirement of specific findings relating to the child is presumably based on the idea that even if abuse exists between the two parents that doesn't necessarily mean the accused abuser would also endanger the child. If you consider cases of true physical domestic violence, this presumption seems ludicrous. If a parent is willing to hit the other parent, why would't we assume they may also hit their child. The proponents of this change would likely respond that cases of actual violence would clearly allow the Judge to make the findings required under this language. So the change is really meant to deal with the cases where the accusations are vague or heavily disputed. But is this enough to shift the presumption?



Shifting this presumption is an idealogical choice based on an assumption that the majority of restraining orders involve either minor issues blown out of proportion, claims of fears that aren't based in reality, or accusations that are completely fabricated. While it is true that these cases do exist, changing the presumption to require Judges to make findings that the alleged abuse does not affect the child, essentially requires them to rehear the entire restraining order case in order to decide the issue of shared physical custody. If the majority of restraining order issues didn't affect children, that would make sense, but this is an assumption that would require some evidence before we could back it. The presumption of shared custody should not outweigh some requirement to err on the side of protecting children first. In cases where a restraining order has been extended there is at least one Judge who found good reason for it. This should be enough to create a presumption against the accused abuser, if only to err on the side of protecting the child. It may be unfair in some cases, but much less unfair than requiring a victim of abuse to prove the abuse twice in order to protect the children.



The next change is less controversial, but still significant. The language in the current statute relating to when parties must propose parenting plans to the court is shortened because much of that detail is now included in the added "Parenting Plan" definition. There is also an addition here, though, of the words: "custody hearing"

The parties, jointly or individually, shall submit to the court at the custody hearing or trial a parenting plan. The court shall accept a completed parenting plan submitted and agreed upon by both parties, in the event that a parenting cannot be agreed upon by the parties, the court may issue a parenting plan modifying a plan submitted by the parties. A parenting plan issued or accepted by the court shall become part of the judgment in the action together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

This change would mean that parents would have to submit parenting plans at any custody hearing (including temporary orders). This is good practice anyway. In any hearing where issues are disputed we try to submit a proposed order for those issues. Requiring it puts everyone on notice that they should be prepared to do so and is therefore a change we are in favor of.



The final change is substituting the word "will" for the word "may" in the following paragraph:

Where the parents have reached an agreement providing for the custody of the children, the court may will enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

This doesn't change the Judges' discretion to make changes to the plan if they make findings that the best interest of the children requires something different, but absent said findings it requires implementation of the parents' plan. In practice this is what happens anyway. Judges seldom vary from an agreement, and when they do they provide reasons for the variation.



Conclusion:



Most of the changes suggested by this bill, in our opinion, are a step in the right direction. They may not be practical, such as the requirement of the Chief Justice to create standardized parenting plans, but all of these changes seek equality of parenting time as a default. Given the greater involvement of both parents in the modern world, and the greater likelihood that both parents work outside the home, these defaults make more sense today, with one exception: very young children.



Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newborns have (especially if the mother is breast-feeding).



We are in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. We would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.



In addition, the proposed bill makes one change that goes too far, requiring extra findings in abuse cases. Again we would urge that Custody Reform be based on evidence about what defaults are in the best interest of children. There would have to be strong evidence that the majority of children were not harmed by the accused abusers in restraining order cases for us to favor this type of change. The current presumption errs on the side of protecting children, and that seems more appropriate absent strong evidence that such a presumption is not necessary.



Because of this one major difference of opinion with the drafters of S00659 this is not a bill we would support in its current format.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

This is the first post in our series evaluating the potential of Custody Reform in Massachusetts. Before you can figure out where you are going, you must first understand where you are. Therefore, in order to give context to the custody reform proposals, we will first review the current law.



The current statute governing the custody of children in a divorce in Massachusetts is M.G.L. 208 s 31. The statute defines physical custody vs. legal custody, and shared vs. sole custody. The statute also creates presumptions which have been criticized for favoring sole physical custody and in practice favoring mothers over fathers. To understand how these criticisms arise, we will examine the language of the statute in depth:



The statute first defines certain terms:

“Sole legal custody”, one parent shall have the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.



“Shared legal custody”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.



“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.



“Shared physical custody”, a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

These definitions separate the elements of parenting into two separate categories of custody, both of which the court must determine. The intention of this division is to recognize that there is a difference between overseeing the child's everyday decisions and their long-term development. We often describe this to clients as the difference between deciding where a child will go to school (legal custody) versus what that same child will wear to school or what they will take for lunch on any given day (physical custody).



Next the statute pays lip-service towards parents having equal rights:

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.

Although this paragraph clearly indicates the court can treat parents unequally if there has been misconduct, or if the current living conditions are endangering the child, it is for the most part a superfluous paragraph because it doesn't give any direction as to how the court should decide legal or physical custody. Every word in a statute is important, but when the statute fails to indicate action that should be taken based on a certain section, than that section lacks teeth. It is our opinion, that one area the statue could be improved is by clarifying how parents are to be treated equally.



Temporary Legal Custody



The next paragraph gives direction to how the court should decide legal custody on temporary orders (i.e. while the divorce case is pending):

Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

This means that temporary shared legal custody is the default position, and a Judge has to make written findings if they don't order shared legal custody (and the statute also clearly indicates that the same presumption does not apply for physical custody). If the Judge doesn't award temporary shared legal custody, then the Judge is required to indicate some reason that the Judge believes shared legal custody is not in the best interest of the child.



The next paragraph provides some guidance on what might convince a Judge that temporary shared legal custody is not in the best interest of the child:

In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.

Although not included specifically, here, Judges will often consider the ability of parents to cooperate and communicate as a "relevant factor." This can be very frustrating for parents because it means that if one parent makes communication impossible by being difficult, they could be "rewarded" with sole legal custody.



Although this type of situation is unusual, the discretion allowed by this paragraph allows this to happen in some cases, and is one of the biggest complaints that alienated parents have about the current statute.



The direction on temporary legal custody ends with a presumption against shared legal custody in cases of abuse:

If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

Legal and Physical Custody at Trial



Despite creating a presumption for shared legal custody on a temporary basis, the current law indicates that there should be no presumption for shared legal or physical custody at trial:

There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

It is confusing that there would be a presumption for shared legal custody on a temporary basis but not a permanent basis. The likely reasoning behind this difference is that during a full trial on the merits the court should have sufficient evidence to make a choice without having to rely on the limited representations received at a temporary order hearing. Essentially, the legislators put their faith in the Judges to use their discretion appropriately at a full trial on the merits, but recognized the limits of temporary order hearings and therefore indicated a presumption for that stage. Practically speaking, a presumption of temporary shared legal custody is likely to continue to permanence anyway, but there is clearly the opportunity to re-argue this issue at trial.



In addition, although this section indicates there should be no presumption against shared legal or physical custody at trial, the next paragraph places extra requirements on a parent seeking shared legal or physical custody:

At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

Practically speaking, in any custody dispute both parties are going to submit proposed parenting plans at trial, but it is odd that the statue only requires it when a parent is seeking shared custody.

At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

This paragraph requires the Judge to consider the proposals of both parents for shared custody, but gives the Judge discretion to reject or amend the plans. The discretion of the Judge is not limited at all except by the "best interest of the child" standard. Many parties feel that this gives the Judges too much unguided discretion and most of the proposed bills amend this section.



The next section indicates that shared custody agreements between parties shall be treated as a plan under the previous section submitted jointly by the parties:



Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

Essentially this means that the Judge could amend or reject a jointly crafted parenting plan within their own discretion. However, this very rarely happens and the last paragraph of the statute requires that a Judge at least indicate why they think the plan is not in the best interest of the child if they overrule an agreement of the parties:

Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

Child Support



The statute also deals briefly with how shared custody may affect child support:

An award of shared legal or physical custody shall not affect a parent’s responsibility for child support. An order of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification.

Clearly, the current statute attempts to separate issues of child support from custody determinations. This makes sense for shared legal custody, but generally shared physical custody represents a sharing of parenting time that would result in sharing of child-related costs. The Massachusetts Child Support Guidelines appear to be at odds with this statutory language:

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one ­third of the time with the other parent.



Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as­ the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount.

You can distinguish the difference in language because the Guidelines make no mention of "shared physical custody", but that is just a semantic argument. The reality is that shared physical custody should reflect that the parents "share equally, or approximately equally, the financial responsibility and parenting time for the children." Thus, it would appear that for the Guidelines to be consistent with the statue, this section of the statute should be updated.



Finally, the statute tries to protect some rights of the non-custodial parent (absent or abuse or other specific limitations) to have access to academic and medical information about their child:

The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent.

Unfortunately, despite this paragraph, schools and doctors will often refuse to provide information to a non-custodial parent if they can't show that they at least share legal custody. As a practical matter, when we have a case with sole legal custody (and even sometimes in shared custody cases) we request language in any Agreement or Judgment that clearly indicates that the non-custodial parent has these rights. This ensures that schools and doctors don't refuse to provide such information.



Conclusion:



The advantages of the current statute are that it has been around long enough for the courts to well understand the presumptions and for the case law to be well developed. However, society has changed and it may be time to update the statute to reflect that two working parents is now the default in many households. In addition, there are other issues discussed above such as the inconsistency of the child support language with the current Guidelines. Overall, some updates are needed.



After we review the proposed bills in the coming weeks, we will summarize them and provide our own thoughts on the best way to update the current statute.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

If you live in Massachusetts, by now you've probably heard about Alimony Reform. Both the House and Senate have passed the Alimony Reform Act of 2011 and it now awaits the approval of the House again (for some language changes made by the Senate). Although, the majority of people in Massachusetts are just now learning about this reform, it has actually been in the works for at least 10 years. In various forms there have been numerous attempts to update the alimony laws in Massachusetts, culminating with a recent Legislative Task Force which authored and approved the current bill.





The same type of reform may be on the horizon for the Massachusetts custody statute.



The Joint Committee on the Judiciary held a public hearing on May 18, 2011 where public testimony was given primarily on Alimony Reform and a pending human trafficking bill. But there were also a few people (mostly fathers) who were there to present testimony in support of a few different bills that would make changes to how custody is determined in the Massachusetts Probate and Family Courts. After further review there are currently six pending bills which would make significant changes in this area, and six more that would make minor tweaks or additions to the current custody statute.



We have provided links to the current custody statute and each of the proposed bills, below. Over the next two weeks we will be posting a series of blogs evaluating the pros and cons of each of these proposals and comparing them to the current statute. We believe that, similar to alimony reform, there are flaws in the current law that could be improved with some updating. However, we also recognize that some of these proposals go too far.



We will provide insight to how these proposals might work in certain instances and fail in others and we hope that our analysis over the course of these posts will provide a benefit from our experience as family law practitioners.



Current Statute: M.G.L. 208 s 31 - Custody of children; shared custody plans



S.659 – Legislation to strengthen family relationships through responsible shared parenting;



S.847 – Legislation to share custody of minor children of divorced or separated parents;



H.1306 – Legislation relative to shared parenting in cases of divorce;



H.1330 – Legislation relative to the determination of the legal custody of children in court cases;



H.2244 – Legislation relative to the rights of parents in child custody proceedings;



H.2684 – Legislation relative to supporting children and parental custody;



H.2851 – Legislation relative to mediation of divorce cases involving children;



H.1305 – Legislation relative to child care involvement of non-custodial parents;



S.691– Legislation relative to parental choice of terminology in certain domestic relations matters;



H.2258– Legislation relative to parental choice in child custody agreements;



H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service;



H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.



To read more about Shared Parenting in Massachusetts, check out the following pages:



Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.



Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation