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

Dammit Jim, I'm a Lawyer not a Priest!



I often have to refer my clients to other professionals when issues arise in a divorce case that I do not have professional training to deal with. The most common example is when I tell clients that they need to seek the assistance of a therapist, because they are using me to help deal with emotional problems. But there is also the rare occasion when a client will ask me whether they should do something which I find morally offensive but which is technically not illegal. In these situations I will explain to a client that their actions may not have legal consequences but they may have other (moral) consequences. In other words, just because something is legal doesn't mean you'll be able to sleep at night.



A good example of this distinction is the latest case of divorced parents acting inappropriately:



Mr. Morelli published a Blog entitled "The Psycho Ex-Wife" where he and his current significant other bash his ex-wife and even, in some instances, his own children. The Court ordered him to take the site down, and this has sparked significant controversy over his potential First Amendment rights.



There are really two issues at play in this case, and many commentators seem to be confusing the two. The first issue is whether or not Mr. Morelli should be legally allowed to publish this material. Or put another way, is his speech protected by the First Amendment? The second, and just as important, issue is whether or not Mr. Morelli's actions are moral.



Because this is a Blog devoted to legal issues in family law, I will address the legal question first:



1. Is the Psycho Ex-Wife Blog protected by the First Amendment?



I have seen many Judges order parents not to disparage the other parent in front of, or within earshot of the children. In addition, we often include this provision in our parenting plan agreements. Obviously parents can agree to limit their rights, but is it a violation of the First Amendment to prohibit parents from speaking their mind to their children?



The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The Courts have expanded this limitation on Congress to include any "state action" by officials of any level of government, which would include state Judges. But that doesn't mean that freedom of speech is absolute. There are limitations which the U.S. Supreme Court has found are permissible.



The most common example is that you are not free to yell "fire" in a crowded theater if there is no fire. The incitement to riot or violence is considered unprotected for obvious reasons.



But there are other limitations that should be common-sense as well. You do not have the right to slander others, and in fact you may be subject to civil litigation if you do. You also don't have the right to publish obscenities. While these limitations are often difficult to pinpoint and usually involve some gray area, the overriding theme is that the government is not allowed to limit your speech because it is unpopular or distasteful, but can limit speech to protect the public.



In the Psycho-Ex Wife Blog case, the state Judge is trying to protect the children, and most state laws give Judges broad discretion to protect the best interest of children in custody disputes. In most cases, the Judge is not ordering that a parent cannot complain about their ex, but only that they can't do it in front of their children, who could obviously be damaged by such comments. It seems that this type of limitation is within the scope of restrictions which have previously been allowed.



Fortunately (or unfortunately, depending on your perspective), we are unlikely to see such a clear-cut case address this issue in front of the Supreme Court, because what parent wants to be the one to take an appeal to the Supreme Court claiming they should be able to tell their children directly that their Mom is a psycho.



In this case, Mr. Morelli has not taken it that far. Instead he has attempted to blur the line by claiming that his Blog was sufficiently anonymous and that the children would not have known about it if not for their Mother showing them the website. If the Mother showed the children the site then certainly her actions are as deplorable as his, but the legal question is: would they have found it anyway? The distinction he is attempting to make is that telling your children directly that their Mom is a psycho is different than writing it on the internet. But is it really that different?



Given how often we write on this blog about being careful with anything you put on the internet, you can probably guess where we come down on this issue. You should assume that everything you put on the internet is public and will be seen by anyone who can access the internet, especially the people you least want to see it. The idea that Mr. Morelli can protect his children from something he writes on the internet forever is laughable, and clearly that is where his argument breaks down. I can't recognize the practical distinction between saying something directly to your children and writing something on the internet in a forum where it can be copied, reposted, discussed on other blogs, and even end up on the Today Show.



The simple fact that this story has now made national news proves my point that once you put something on the internet you risk it having a life of its own and growing to a point where you do not control who sees it. This is especially true for your own children who have all the motivation in the world to read everything you tell them not to.



If there is no practical distinction between calling your ex a psycho on the internet, and saying it in front of your children, then the only way that you can support Mr. Morelli's First Amendment argument is to agree that he should have a constitutionally protected right to say these things directly to his children. Given the amount of psychological damage that can cause children of divorce, I don't think the First Amendment stretches that far.



2. But even if the First Amendment does protect his speech, Is it Right?



On principle, we don't endorse asking your lawyer for moral advice. But if you've read this far, you probably already know what our answer to this question is. Mr. Morelli doesn't seem to understand that his actions increase the conflict, not minimize them. He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems. This is a distinction lost on many, especially those who are particularly angry about how their divorce went. Complaining can be cathartic, but it doesn't solve problems and if you complain in a forum accessible to your ex, then you are more likely increasing the conflict, not trying to deflate it.



Many people will try to turn this case into a forum to talk about how hard it is to be a divorced mother vs. a divorced father (just read the comments on Huffington Post to see how far this has gone). This is exactly what Mr. Morelli was trying to do. Like many on the internet he was seeking validation through shared experience, and that validation was more important to him than his children's well-being. If he truly believes that his children would never see the words he wrote on the obviously public form of the internet than he is delusional.



Unfortunately, it is much more likely that he is looking for the same validation from his children that he is from the public. It is far more likely that when he wrote this blog he was actually hoping his children would see it some day.



This desire to be the "validated" parent is a common feeling. Parents often want their children to be on "their side" and understand that the other parent is at fault. The reason that the court has to tell parents that they shouldn't bad-mouth their ex-spouse in front of their children, is exactly because this feeling is common-place. Sometimes common-sense and moral judgment must be used to overcome strong emotional responses. Sometimes being a good parent is about biting your tongue. Mr. Morelli and his "psycho ex-wife" would be better off if they learned that lesson, or at least their children would be.

It doesn't take a child development specialist to know that children of different ages have different needs. But how do we apply this knowledge to create age-appropriate parenting plans?

The greatest key to working out an appropriate parenting plan regardless of age, is being able to communicate effectively with your co-parent (or take advantage of resources to help you communicate effectively such as mediation or collaborative divorce).

But if you are not able to work out a plan directly, or need assistance in figuring out what might work best, there are resources available.

Zero to Three: Parenting Issues and Parenting Plans For Young Children is an article devoted specifically to the developmental needs and corresponding parenting plans for very young children.

In Massachusetts, the Court recognizes that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete. In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart.

In addition, a similar committee of Massachusetts judges, practitioners and mental health professionals produced Model Parenting Plans, which in many ways correspond to the recomendations suggested by the earlier Planning for Shared Parenting brochure.

At Kelsey & Trask, P.C. we have created a Parenting Plan Worksheet to help you visualize these Model Parenting Plans and/or other Custom parenting plans on a color-coded Calendar.

MISTAKE #1: INVOLVING YOUR CHILDREN IN YOUR DIVORCE

While listening to 107.9 (Matty in the Morning) last week I heard a caller who described herself as a 17 year old girl. This girl when asked where she was, stated that she was at court with her Mother for a Contempt hearing against her Father for non-payment of child support. The girl thought it was funny, which is a perfect example of how a 17 year old child is still not mature enough to understand how inappropriate and damaging it can be to involve your children (no matter their age) in any of your divorce disputes.

The mistakes parents make involving their children in a divorce case range from a simple slip of an angry snide comment about the ex, to a revealing argument meant to win over your child because you think they're old enough to understand, to purposeful comments meant to alienate the child from the other parent.

In any of these cases the damage to the child is significant. A simple comment releasing a parent's frustration can put a child in the middle of an argument that they truly can't understand. Children, naturally inclined to want to please their parents, will often agree with both parents, only increasing their discomfort when parent's discuss the "preferences" of their children.

The bottom line is children (even for the most part adult children) want to love both their parents and should be given that opportunity. Even if one parent starts an argument through a child, responding only does more damage. Quite often the instinct to respond and defend oneself is the wrong choice because it only perpetuates keeping the child in the middle of the argument.

The best strategy for dealing with children during a divorce case is to provide them with as much stability as possible and to remember that they still want and deserve the chance to bond with both parents. According to Planning for Shared Parenting: A Guide for Parents Living Apart, children benefit when parents:

• Communicate with each other in a courteous “businesslike” manner.
• Are on time and have children ready at exchange time.
• Avoid any communication that may lead to conflict at exchange time.
• Encourage the children to carry “important” items such as clothing, toys and
security blankets with them between the parents’ homes.
• Follow reasonably similar routines for mealtime, bedtime and homework time.
• Communicate about rules and discipline in order to handle them in similar ways.
• Support contact with grandparents and other extended family so the children do
not experience a sense of loss.
• Are flexible in developing parenting plans to accommodate their child’s
extracurricular activities and special family celebrations.
• Make time to spend alone with their children when the parent has a new partner.
• Are with their children during scheduled times and communicate with their
children when they cannot be with them.
• Respect the other parent’s scheduled times with children and do not schedule
plans that will conflict.
• Discuss any proposed schedule changes directly with the other parent.
• Support the child’s relationship with the other parent and trust the other’s
parenting skills.
• Assure the children that they did not cause the divorce and that they do not have
the power to reverse the process.

Click here to view Mistake #5.

NO.

That was easy, next blog post... No, you want more than that? Okay:

Divorce is by definition about the failure of a plan. You got married, you took vows, and it didn't work out. Whether or not you are about assigning blame (and there is usually enough to go around), divorce is about picking up the pieces of a failure. Accepting that disappointment is as important a step in moving on as accepting that the marriage was over in the first place.

If you take that failure personally, you should discuss those feelings with friends, family or a professional therapist. You shouldn't ignore them because you need to find a way to move past them in order to deal with the practical realities of dividing up a marital life.

With respect to finances, divorce means dividing up a business partnership, and there is no perfect or ideal way to do this. In Massachusetts, the court can consider numerous factors in how to do this (M.G.L. c. 208 s34), but in practice most cases settle, and they settle based on what both parties can live with. You won't get everything you want, but neither will the other side.

With respect to children, even if you do the best you can parenting apart is never ideal. In many situations and for many relationships it may be better than parenting together, but even the best parents can't undue the loss a child feels when their parents break up. I was reminded of this when reading a simple quote from an interview with Jack Black in the Guardian, in which he matter-of-factly indicates that his parents divorced and as a kid the simple fact "that they can't live with each other makes you feel there's something wrong with you." In many ways parenting is about doing your best with what you have anyway, and no where is this more true than in parenting apart. You can educate yourself and make the best of it, and minimize the trauma on your children. But to do that you have to first accept that this situation is not perfect, and find ways to compensate.

At the end of the day, realizing that there is no perfect divorce is an important step in figuring out how to look at the future rather than dwell on the failures of the past. Sometimes the cliché is true: whatever doesn't kill you makes you stronger.

The most common reason for divorcing spouses to continue living in the same house is because neither wants to leave their children behind. When a parent leaves the home and moves to another location without an agreement for parenting plan in place, they are essentially ceding physical custody to the other parent. Physical custody is simply defined as who the children reside with and unless there is a plan in place, if only one parent lives in the children's home, then that parent necessarily has physical custody (it is possible for a parent to move out with the children, but this is unusual except in cases of abuse).

While many parents will fight over who can remain in the home during this time period, this argument is a distraction from the reality that eventually divorcing spouses will live separate and apart. It makes more sense for the spouse who will eventually move to begin investigating their other options as soon as possible, and for parents to work out a realistic parenting plan prior to that move. Rather than use this argument as a ploy to fight over the children, discussing practical resolutions will focus both parents on how much time each will spend with their child instead of focusing on what they are losing. Divorce will never leave each person whole, but to the greatest extent possible parents should strive to keep their children from getting caught in the middle of any disputes.

It is typical for parents to make changes to their parenting plan and visitation schedules as their children age. Indeed, we often refer clients to two resources which suggest that parenting plans need to change as children age to accommodate their different developmental requirements: Planning for Shared Parenting: A Guide for Parents Living Apart and the Model Parenting Plans.

In addition, we usually include the following paragraph or something similar in our agreements:

Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule.

This is intended to provide parents with encouragement to be flexible when life requires it or children's ages require new arrangements.

But, if you enter into such a modification, should you go back to court to have it approved by the court?

According to the Massachusetts Appeals Court in an unpublished decision, if you don't ratify the agreement in writing and have it approved by the court it may not be enforceable. In Benoit v. Benoit the court found that the oral agreement between parents to make changes to the parenting schedule was not sufficient evidence to show a material and significant change in circumstances. The court therefore refused to enter the oral agreement as a new order. If the parties had made the agreement in writing and entered it as an Agreement for Modification, then the Father could have enforced it in court. But since they didn't, the court was not willing on the evidence of an oral agreement alone, to enforce the changes.

As discussed in a previous post a Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. Parenting Plans can be made specific or flexible depending on the requirements of each case but usually contain a base schedule.

In most cases it is also advisable to supplement the base schedule with a holiday schedule. At Kelsey & Trask, P.C. we have a template holiday plan that includes proposed schedules for many of the typical holidays that parents and children enjoy sharing together. However, we often encourage our clients to try and create their own holiday plans based on their family traditions, trying to keep as much of the family traditions intact for children already experiencing many changes.

If you are a separated or divorcing parent, we suggest that you pay special attention to how your children experience holidays and how each parent can continue to share in those traditions.

It's difficult for people who haven't been involved in a divorce case to understand why divorcing spouses can be so mean to each other, especially when children are involved. But the emotions that couples experience when going through a divorce can be like riding a roller coaster. Many experts describe the emotional process of dealing with a divorce as similar to that of dealing with the death of a loved one, including all the same stages of grief: denial, anger, bargaining, depression and acceptance. When divorces involve children, these emotions are amplified by parent's fears that they will "lose" their children.

This is why the labels of "custodial parent" and "visiting parent" carry so much baggage with them, and can make people fight when they don't need to. When it comes to figuring out the best way that both parents can remain involved in the lives of their children, we believe it is more important for clients to focus on what the actual plan is, rather than the labels. We recently wrote a post about Parenting Plans, that focused on how parents can come up with a Parenting Plan as part of their divorce case.

But it is also important to know what significance the labels have. As the court moves away from the "custody vs. visitation" model towards a "parenting plan" model much of the old significance to these labels has been drained from them. For example, the Child Support Guidelines use to simply specify that the custodial parent pays the non-custodial parent the figure calculated by applying the Child Support Guidelines Worksheet. However, the new Massachusetts Child Support Guidelines clarify as follows:

"These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests.

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one­third 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..."

This clarification obviates the need for using the label of custodial parent, because the amount of time the child spends with each parent in the parenting plan will define how we apply the guidelines.

Likewise, the title of "sole custody" vs. "joint custody" used to have definite legal significance regarding what standard would be applied when a parent wanted to remove the child from the Commonwealth and move to another state. The differences in the applicable standards was the weight that should be given to the benefit of the relocation to the parent seeking to move. In the case of "sole custody" the benefit to the relocating parent is given so much weight that it is a difficult burden to overcome, and in many cases relocation is allowed. In the case of "joint custody" the benefit to the relocating parent is not given as much weight, and the disruption to the non-moving parent's parenting time will often outweigh the benefits of the move, and so in many cases relocation is not allowed.

But recent court decisions have cut back on the significance of the labels in these cases as well, focusing more on the actual parenting time spent with the children by each parent to determine whether the children were truly living equally with both parents or not. In Altomare v. Altomare 77 Mass. App. Ct. 601 (2010) the Court held that the parenting time arrangement, which involved significantly more time with the Mother, was more important than the label of shared physical custody. The Court in Altomare looked past the "shared physical custody" label and indicated they would treat the case as a "sole physical custody" case for purpose of applying a removal standard, because that was what the parenting time actually reflected. See also Katzman v. Healy, Appeals Court of Massachusetts.No. 09-P-2341. (2010) in which the Appeals Court overturned a trial judge who, according to the appeals court, mixed the standards together in the case where the Mother's label was "sole physical" custodian, but also where Mother had significantly more parenting time with the children.

Because the history of these cases is important, we do not mean to imply or express the opinion that the labels have lost all legal meaning. However, it is clear that the Court is leaning away from these labels and towards an analysis of how the actual parenting time impacts the social, emotional and financial effects on children and their parents. If you are mired in a fight over labels, you should consider re-focusing your attention on the best Parenting Plan for your family and let the realities of that plan inform these other issues, rather than letting the cart lead the horse.

As discussed in a previous post, M.G.L. c. 208 Section 30 states that a child who the Massachusetts' probate courts have jurisdiction over shall not be removed from the Commonwealth without consent of both parents or Order of the Court. This statute does not apply to vacations, but rather is intended to prevent the "removal" of children to another state of residence without permission of both parents or the Court's permission.

In a 2003 decision, the Massachusetts Appellate Court expanded this prohibition on removal to include relocation within the Commonwealth if the relocation would "involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." D.C. v. J.S., 58 Mass. App. Ct. 351, 355-356 (2003).

If your ex is threatening to move to another part of the state with your children and it would significantly disrupt your parenting time with the children, then you can ask the Court to prevent this move. If the Court agrees that the move would significantly disrupt your parenting time then the court should apply the same standard as in a case involving a removal out of state. It may be prudent for a parent who wants to move, even within the Commonwealth, to ask the Court's permission if the other parent disagrees. This could prevent costly requirements if the Court disallowed the move afterwards.

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans are necessary when two parents live apart (whether because they were never married, are divorced, getting divorced, or simply choosing to live separate and apart).

Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

The best Parenting Plan for each family will depend on the ages of the children in that family,the schedules of both the parents and the children, the relative parenting abilities of each parent, any special needs of the children, and the family's traditions. Many people have trouble figuring out where to start in creating a parenting plan and in order to assist separate parents, the Massachusetts Courts asked a a Task Force of judges, lawyers, probation officers and mental health professionals to provide Model Parenting Plans. The Plans are available on the Massachusetts Courts website and although not mandatory or presumptive they can be helpful in designing a Parenting Plan that reflects the ages of the children and the relative involvement of each parent. While these schedules may not work for every family, they are instructive as to what many experts believe are the types of schedules most likely to encourage positive child development.

When considering the best Parenting Plan for their family, we encourage our clients to review these Model Parenting Plans as well as the guide: Planning for Shared Parenting: A Guide for Parents Living Apart.

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

A parenting plan which is becoming more popular among divorcing and separating parents is called "nesting."

Nesting is when the children stay in the home and the parents move in and out according to a parenting schedule (rather than have the children travel back and forth to separate homes.

The main benefits of nesting are as follows:

1. Rather than create greater stress for the children by making them travel and sleep in a new place, while they are still getting used to the idea that their parents are separating, we force this stress on the parents. Although not ideal in either situation, the argument is that if either the children or the parents are going to be inconvenienced it makes more sense for that burden to fall on the parents (at least while it is practical). After all, the parents are the ones who decided to get divorced, not the children.

2. It allows for greater flexibility in designing a settlement of a case. By not forcing one spouse out, we haven’t made any irreversible decisions about living arrangements, which more realistically should be based on who can afford the home and not on who has the most reason to leave right now. It also avoids the pain and animosity that comes with a Motion to Vacate. In situations that rise to the level of needing a Restraining Order, the first consideration should be safety. But if the only issue leading to the Motion to Vacate is tension between the parties which is affecting the children, nesting can resolve that without having to brand one party the "bad" one.

3. If parents have available temporary housing for their non-parenting nights then nesting can be cheaper than immediately having to support two full-time households.

The downsides to nesting are:

1. Since it is not a permanent solution, spending too much time working out a nesting plan could be considered wasted cost. The simple fact that it is not a permanent solution could keep the parents from moving towards final resolution.

2. If parents don’t have available temporary housing then nesting could require three households instead of two, resulting in increased cost.

IF you agree to a nesting arrangement the key is still a parenting plan that makes sense for the children and their schedules and the parties' work schedules. But if you can reach a mutually agreeable parenting plan, nesting can be a useful tool in moving a case forward with less animosity and less stress on the children.

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting.

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child.

The Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete, and also that at each stage, a child's needs are different.

In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.