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According to the Massachusetts Appeals Court in an unpublished decision, if you don't ratify the agreement in writing and have it approved by the court it may not be enforceable.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.

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.

In Tuesday's New York Times, there was an article entitled "Losing Fatherhood" that explores how DNA testing has changed the face of Fatherhood in America. It's an interesting read and raises the question of what does it really mean to be a Father.

Last night on the ABC comedy the Modern Family, the patriarch played by Ed O'Neill (of Al Bundy fame) states that "90% of being a Father is just showing up."

In Modern Family Ed O'Neill's character, Jay Pritchett, has an adult gay son who is in a couple and has an adopted daughter, and an adult daughter who is married with three children as well. In addition, Jay Pritchett has re-married to a younger woman and has a step-son. Although there are three distinct families in the show, all with different "father figures", they are all tied together by their relationship to Jay.

In last night's episode (available online here) Jay plays the role of grand-father, father and step-father and in all of these interactions, Jay shows what it means to be a Father. By just "showing up" he is not perfect, but he is involved, protective and loving. This is especially obvious in the show when his step-son's biological father fails to show up for a visitation.

For me, this show highlights the fact that whether or not a family is "traditional" or "non-traditional" we can all still tell the difference parents can make in a family by being involved and at least "showing-up."

Getting divorced doesn’t always mean the end of a relationship. When parents of a child get divorced, there is a need for some form of continuing communication and cooperation. When parents fail to recognize that need for ongoing cooperation, the child is the one who suffers.

The latest example of parents putting their child in the middles is the story of Joseph and Rebecca Reyes as reported in this ABC news story:


Joseph Reyes returned home from serving in Afghanistan and soon married his sweetheart, Rebecca. Because Rebecca is Jewish and Joseph was Catholic, Joseph converted to Judaism to make his wife, and her family, happy. After a few years, and the birth of a daughter, their marriage had started to deteriorate.

Religion became a contentious issue between the two, and they decided to get divorced. Rebecca became the daughter’s custodial parent, and Joseph had visitation rights. Although Rebecca had been raising their daughter in the Jewish faith, Joseph unilaterally decided to have her baptized. He sent pictures of the baptism to Rebecca, who responded by getting a court order prohibiting Joseph from bringing the girl to church. In response, Joseph had a local television crew follow him as he brought his daughter to church in violation of this order, for which he now may face jail time.

While some have been quick to criticize this as what feels like an unconstitutional endorsement of one religion over another, the issue was that Joseph had his daughter baptized without first discussing the matter with Rebecca. Getting along with an ex-spouse is often not an easy task, but some level of cooperation is necessary for the healthy upbringing of any children caught in the middle. With Joseph and Rebecca, regardless of who “wins” in a courtroom, their daughter loses.

Parents who find themselves struggling over child-care issues with an ex-spouse should consider going to a therapist with experience in post-divorce relationships, taking advantage of the resources that organizations such as The Divorce Center offer, or trying mediation. It’s certainly in the best interests of the child to work towards agreement on these types of issues rather than involving T.V. cameras.

Many parents facing the prospect of a divorce or break-up where children are involved place a great deal of importance on obtaining "sole physical custody" or "joint physical custody" of the child or children. Parents are often devastated to find out that their former significant other is seeking sole physical custody, as if that phrase automatically means that there is an intent to preclude one parent from the child's life. These phrases have unfortunately taken on pop culture definitions that more often than not vary from reality.

Physical custody refers to where the child lives. If a child lives primarily at one place, usually thought to be about two-thirds of the time or more at the same residence, that child is considered to be in the "sole physical custody" of the parent who shares that address. Usually, children who are living in the sole physical custody of one parent have some sort of "visitation" schedule with the "non-custodial" parent. The details of that visitation schedule, also sometimes called a "parenting plan", are dependent on both parents. For some "non-custodial" parents it is every other weekend, for others it could be two or three days each week.

Even a parenting plan that falls into that two-thirds vs. one-third mold still includes a significant amount of time that the children are with the "non-custodial" parent.

In addition, not having sole physical custody does not mean that a parent cannot be involved in major life decisions involving the child. Or put another way, non-custodial parents are still able to contribute to the major life decisions necessary for their child. The ability to be involved in such decisions is determined by which parent or parents have legal custody of the child. In other words, while the sole physical custodian of the child may decide what clothes your child will wear to school, legal custodians can (and in most cases should) still be involved in decisions such as who the child's doctor will be, whether or not your child will have surgery, and what school the child will attend.

Finally, absent a restraining order or other order of the court to the contrary, all parents have the right to attend their children's public events, such as sporting events, concerts, etc. Most courts do not consider these types of public events the exclusive time of either parent. Although how you interact with the other parent at these events may depend on your ongoing relationship and the appropriateness of said interaction, it is usually still beneficial for a child to know that both parents are there cheering them on, even if separately. While this is not necessarily "quality time" with your child it remains another way non-custodial parents can remain involved in their children's lives.

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question.

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

For more information on whether your Agreement properly protects you with regards to the merger and survival clause you should consult with an Attorney. To consult with Kelsey & Trask, P.C. please call us at (508) 655-5980 or e-mail us.