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.
Showing posts with label Shared Parenting. Show all posts
Showing posts with label Shared Parenting. Show all posts
Sunday, August 12, 2012
Monday, April 16, 2012
Custody Reform: H.1306 & H.2684 - Is Changing the "Best Interest" Standard Necessary?
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 2 of H.1306 replaces this language with the following:
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:
H.1306 was less specific as to the evidentiary standard but essentially allowed for the same exception.
Section 4 of H.1306:
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:
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:
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
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
Tuesday, March 27, 2012
Custody Reform: H.2244 - Does Equal Time Make Equal Parents?
HO1330 is the third House bill which proposes to make amendments to the current custody statute. This proposal was filed in the House on January 21, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.
H.2244 – Legislation relative to the rights of parents in child custody proceedings.
This proposed bill is split into seven sections, each one making a specific amendment to one paragraph of the current bill. The clear trend of this proposal is a focus on parent's rights instead of the "best interest of the child" standard.
Section 1 deletes paragraph 6 of the current statute. First off, this means that the definitions of custody are kept in tact. Instead of considering the happiness and welfare, and past and present living situations, though, this proposal would have the court consider the following factors when determining custody:
Section 31 of Chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended by striking the sixth paragraph and inserting in place thereof the following paragraph:- “In making an order or judgement relative to the custody of children, the rights of the parents shall, in the absence of abuse or neglect, be held to be equal. Concomitant with the equal rights of parents is the right of the child(ren) to spend equal time with each parent.”
This bill would create a "right of children" to spend equal time with both parents. This right does not currently exist, and though some argue it should, there is significant problems with this standard when applied to all ages and all situations.
As we have discussed in previous posts, the simplest example is a newborn child. This proposal makes no exception for newborns, but equal time with newborns is impractical and against the best evidence we have on child developmental needs. We don't mean to imply that newborns should always be with mothers, but only that a newborn's sleep and eating schedule typically requires one primary caretaker parent (whether the mother or father) and frequent often contact with the other parent.
Other situations can make equal time impractical or not in the best interest of children as well, and therefore making equal time an absolute right in all cases puts the desires of parents ahead of the needs of children.
Section 2 follows the equal time presumption with a presumption of shared legal and physical custody absent clear and convincing evidence of abuse or neglect, and deletes the current less strict presumption language. This is consistent with the equal time provisions above, though not as far reaching as those requirements.
Section 3 deletes language allowing the court to limit shared custody based on all relevant factors, an admittedly broad standard, and it replaces it with a more strict standard:
Said section 31 is hereby further amended by striking the eighth paragraph and inserting in place thereof the following paragraph:- “Fit parents by definition and by virtue of the natural, immutable bond they share with the child(ren), both define and act in the best interest of the child(ren). Absent clear and convincing evidence that either parent is unfit, each parent shall be presumed to be fit, and as such the court shall order temporary shared legal and physical custody of the child(ren).”
Essentially, the Court still has broad discretion to determine parental fitness, but this is a much stricter standard than examining only the best interest of a child. Similar to the presumption of biological parents over non-biological parents in guardianship cases, this standard would create a presumption that both parents have equal time in conjunction with Section 1 absent strong evidence otherwise.
Section 4 deletes the restraining order presumption language completely, and also deletes the lack of any presumption at trial language. Deleting the restraining order presumption language completely is something we have discussed in reviewing the other proposed bills. Essentially a complete deletion or reversal of this paragraph ignores the danger domestic violence poses to children, in favor of erring on the side of parental rights. Compromise is possible on this section, but complete deletion goes too far.
Section 5 creates a presumption in favor of any shared custody plan whether filed jointly or by either party:
Said section 31 is hereby further amended by striking the twelfth paragraph and inserting in place thereof the following paragraph:- “At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. In conjunction therewith, absent clear and convincing evidence that either parent is unfit, the court must accept the shared custody implementation plan submitted by the parties jointly. Absent a jointly submitted shared custody implementation plan, the court must accept the shared custody implementation plan submitted by either party.”
The final line of this paragraph is confusing because it would appear to require the Court to accept a shared custody plan even if only submitted by one parent. This means that if one parent submits a shared custody plan, and the other does not, then the shared plan will automatically be accepted. There is no discretion left for a Judge to use common sense if the proposed plan is clearly inappropriate or problematic, unless the court finds that parent unfit. Support of this presumption requires a belief that a parents rights should always trump the oversight of the courts, even if the plan they are proposing would cause harm to the children.
Section 6 amends the child support presumptions:
Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following paragraph:- 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.”
As we have previously indicated, this type of change at least eliminates the inconsistency between the current statute and the Massachusetts Child Support Guidelines.
Finally, Section 7, similar to section 5, requires the court to enter any custody agreement reached by the parties, without any authority to amend or reject it.
Conclusion:
This proposed bill would eliminate almost all judicial discretion regarding custody determinations except when one or both parents are unfit. Again, approval of this type of change requires a belief that the Judges should not have any oversight over the custody of children when the parents are unreasonable, unless they are completely unfit. This position is inconsistent with other statutes, such as the guardianship statute. But since it is ideologically based there is little room for compromise.
This extreme restriction of judicial power is not a position that we support, but we recognize why parents in certain situations may feel that this type of radical change is necessary. The power of Judges to make decisions relating to the custody of a parent's children under the current statute can be very upsetting for parents. This is one of the reasons that we encourage parents to seek alternative dispute resolution through Mediation or Collaborative Divorce.
This proposal goes even farther, though. It wouldn't just take power away from Judges, in the end, this proposed bill also takes an extreme position that equal time is more important than all else (except in abuse and neglect cases). This only makes sense if the ideology behind it is that equal time with both parents is in the best interest of the child in all situations. This is simply not the case at all ages and all situations.
Even if you believe that restrict the discretion of Judges is necessary, this concern could be addressed with parenting plan guidelines that are more specific. 50/50 parenting time in all situations is arbitrary and doesn't recognize different developmental stages or other circumstances. If the goal is to reduce judicial discretion, then we believe enacting guidelines similar to the Model Parenting Plans would make more sense than a blanket 50/50.
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
Saturday, March 24, 2012
What can we learn from Katie Holmes divorce filing against Tom Cruise?
If you live in a cave, then maybe you haven't heard that TomKat is no more. As reported by TMZ, Katie Holmes has filed for divorce from Tom Cruise and according to the pleadings she is seeking sole legal and physical custody of their daughter Suri.What I find interesting is not the fact that another celebrity couple has called it quits. Celebrities getting divorced is hardly even surprising news anymore. Okay, it is a little interesting that this would be Tom's third divorce and, according to the Huffington Post, all three occurred when his wives turned 33.
But what I find most interesting is how the media has been reporting the divorce filings and what it says about how we perceive custody battles. Specifically the Huffington Post had the following headline on an article about the divorce filings: Suri Cruise Custody: Katie Holmes Reportedly Seeks Full Custody In Divorce From Tom Cruise
When I first read this I immediately cringed, because I am so often telling clients that the words "full custody" are meaningless. What is "full custody"? Is it sole legal and physical custody, or just sole physical custody? Does it mean Katie doesn't want Tom to ever see their daughter? Does it mean Katie thinks she is the only parent to Suri? Probably not, but that's what asking for "full custody" can sound like to the person who is being asked to give up custody of their child.
The word "custody" is a loaded term already, and the term "full custody" is even worse. The terms "legal custody" and "physical custody" have legal meaning but they don't actually tell you how to co-parent a child as separated parents. Parents who are separated or are separating should be considering what is in the best interest of their child. Except in very unusual circumstances (when a parent is destructive and dangerous), a child always benefits from having both parents involved in their life. In addition, in most cases both parents will feel strongly that they should stay involved in their child's life.
Telling the other parent that you want "full custody" is akin to saying "I'm a parent and you're not." Is that what Katie Holmes meant to do? Probably not, despite the way it was being reported by the media. In fact, the legal document for filing divorce requires that a request be made on custody. Many times the legal pleadings are restrictive on what you can ask for depending on how you plan to proceed with the case and this may have been the best way for Katie's attorneys to complete the form even if "full custody" was not their intent. Because Tom likely has a team of lawyers he probably already knew the difference between the legal document and the practical reality.
Unfortunately, though, many divorcing parents begin the divorce process with the misunderstanding that they should seek "full custody" or that their spouse is trying to do so. Imagine someone/anyone trying to take your child away from you and you can begin to understand the amount of hurt that causes parents. These parents are already hurting because of the loss of their marriage, and now add to that the perception that their spouse is trying to take away their children. That is a recipe for disaster, and it is not hard to figure out where the term "custody battle" comes from.
But it doesn't have to be that way.
There are two movements towards greater civility in the Divorce process which overlap in this instance: Collaborative Divorce, and Shared Parenting.
Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to Court. The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court. In the context of family law, Collaborative Law can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification. The process can also include other professionals such as financial planners and mental health professionals using a team approach to help negotiate and settle disputes.
Shared Parenting doesn't necessarily mean "equal parenting" but rather a recognition that both parents will be involved (in most cases) in the child's life. The goal of speaking about parenting in these terms as opposed to adversarial terms is in recognizing the shared roles that parents have and the cooperation necessary to parent a child together even if from separate households. That relationship is defined through a parenting plan, that may still use the legal terms "custody" but is focused primarily on the relationship and only uses the legal terms to ensure understanding by the courts.
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 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.
As we learn more and more about the destructive effect that custody battles have on the children, shared parenting and collaborative divorce will become more and more popular.
Even between Tom and Katie, despite the supposed request for "full custody" in the initial filing, they saw a way through the 'battle" to quickly reach an agreement and release a statement that they "are committed to working together as parents to accomplishing what is in our daughter Suri's best interests" (as reported by CNN). In a divorce, that's the only commitment that still matters.
Read more about Collaborative Divorce here.
Read more about Parenting Plans here or try out our Parenting Plan Worksheet.
Tuesday, March 20, 2012
Custody Reform: Six More Proposals Varying in Practical Effect
In addition to the six lengthy proposed custody reform bills that we have reviewed over the past two weeks, there are six other proposed bills which would affect the resolution of custody disputes, although they do not make changes to the custody statute directly. In this post, we will summarize each of these proposals briefly and indicate how they could, at least in some indirect way, influence custody reform.
H.2851 – Legislation relative to mediation of divorce cases involving children.
This bill proposes adding a new statute to M.G.L. ch. 208: "SECTION 28B. Mediation of cases involving children". This new statute would allow the court to order the parties to participate in mediation in all custody disputes between parents (or grandparents). If mediation is ordered, all disputed issues (such as property division or alimony) will also be mediated. Parties are required to participate in said mediation "in good faith."
However, the "mediator has no authority to make a decision or impose a settlement upon the parties... Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation."
The proposed bill does allow some deviation allowing the court not to order mediation when there are circumstances such as abuse, undue hardship or drug abuse. Also, the court shall not order mediation if there is an active restraining order.
Clearly, the goal of this proposal is to force parties to try mediation, but in no way change their rights to litigation. While this is a laudable goal, the reality is that many cases won't settle, even with mediation. Is forcing mediation on people the right solution? How can the court "order the parties to participate in mediation" and have the settlement still be voluntary? This essentially amounts to bullying, but bullying that is worth it if you truly believe that mediation is that powerful of a tool.
Participation in mediation has been linked to increased involvement of non-custodial parents with children after divorce. However, this increase is based on voluntary mediation. Whether or not forced mediation will result in similar positive results is unknown, though it seems likely that there would at least be some benefit for at least some cases.
H.1305 – Legislation relative to child care involvement of non-custodial parents
This proposal amounts essentially to a right of first refusal for non-custodial parents before a child is placed in childcare. "If the court determines that the non-custodial parent is available, capable, and desirous of providing all or part of said childcare for the child or children for whom support is ordered, the court shall include in its order provisions allowing the non-custodial parent the right to provide such child care."
Similar provisions are sometimes included in agreements between parents to allow a non-custodial parent greater time with the children when the custodial parent is unavailable. However, the proposed bill is a little vague as to what counts as "childcare." Is preschool considered "childcare" or is preschool considered school, which carries benefits such as socialization. The idea is a good one, but needs to be refined.
S.0691– Legislation relative to parental choice of terminology in certain domestic relations matters. (H.2258– Legislation relative to parental choice in child custody agreements.)
This Senate and House proposal are essentially the same, and we will therefore summarize them together. These bills propose adding a new statute to M.G.L. ch. 208: "Section 31B. Parental rights and responsibilities; parenting plans; use of terms."
The proposed new statute would allow parties to use alternative terms for custody. These terms are defined in the proposal, essentially just replacing the term legal custody with "decision making responsibility" and physical custody with "primary residential responsibility". The proposal also includes a definition for "parenting plan."
The bill makes no requirements on the courts and would therefore be mostly window-dressing in our opinion. Allowing parents to use different, more "PC", terms doesn't really change the underlying reality. We already advise our clients to focus on the parenting plan first and the terms second, because how you actually parent your children is more important than the labels.
H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service.
This proposed bill would prohibit courts from modifying parenting plans while a parent was on active duty military service, except for temporary orders deemed necessary to protect the best interest of the child. If a temporary order is made during the active duty period, the original plan will be reinstated upon the parent's return from active duty, and the active duty will not be considered in any modification determination.
This bill will have limited applicability, because most parents aren't facing this issue, but the protection of parental rights for members of the active duty military makes sense. The only potential issue we see with this language, is that it may make sense to allow some transition period back to the old parenting plan if the active duty military parent has been gone for a relatively long time. For example, a young child who hasn't seen a parent for a year, will need some time to get used to them again. This may not seem fair, but it is more realistic. This change could be made by adding only one line to address such a reasonable transition.
H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.
The proposed bill is pretty straightforward:
Due to the length that some cases can drag out, this may not be practical in its blanket form. In addition, in cases where this type of order is appropriate, Judges are typically willing to make such an order. Changing the presumption to limit the rights of all individuals without a court finding in a particular case seems a bit overreaching and unnecessary. Given that the majority of these custody reform statutes are geared more towards less court oversight rather than more, this proposal stands out as superfluous and not likely to be recommended by the Judiciary Committee.
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
H.2851 – Legislation relative to mediation of divorce cases involving children.
This bill proposes adding a new statute to M.G.L. ch. 208: "SECTION 28B. Mediation of cases involving children". This new statute would allow the court to order the parties to participate in mediation in all custody disputes between parents (or grandparents). If mediation is ordered, all disputed issues (such as property division or alimony) will also be mediated. Parties are required to participate in said mediation "in good faith."
However, the "mediator has no authority to make a decision or impose a settlement upon the parties... Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation."
The proposed bill does allow some deviation allowing the court not to order mediation when there are circumstances such as abuse, undue hardship or drug abuse. Also, the court shall not order mediation if there is an active restraining order.
Clearly, the goal of this proposal is to force parties to try mediation, but in no way change their rights to litigation. While this is a laudable goal, the reality is that many cases won't settle, even with mediation. Is forcing mediation on people the right solution? How can the court "order the parties to participate in mediation" and have the settlement still be voluntary? This essentially amounts to bullying, but bullying that is worth it if you truly believe that mediation is that powerful of a tool.
Participation in mediation has been linked to increased involvement of non-custodial parents with children after divorce. However, this increase is based on voluntary mediation. Whether or not forced mediation will result in similar positive results is unknown, though it seems likely that there would at least be some benefit for at least some cases.
H.1305 – Legislation relative to child care involvement of non-custodial parents
This proposal amounts essentially to a right of first refusal for non-custodial parents before a child is placed in childcare. "If the court determines that the non-custodial parent is available, capable, and desirous of providing all or part of said childcare for the child or children for whom support is ordered, the court shall include in its order provisions allowing the non-custodial parent the right to provide such child care."
Similar provisions are sometimes included in agreements between parents to allow a non-custodial parent greater time with the children when the custodial parent is unavailable. However, the proposed bill is a little vague as to what counts as "childcare." Is preschool considered "childcare" or is preschool considered school, which carries benefits such as socialization. The idea is a good one, but needs to be refined.
S.0691– Legislation relative to parental choice of terminology in certain domestic relations matters. (H.2258– Legislation relative to parental choice in child custody agreements.)
This Senate and House proposal are essentially the same, and we will therefore summarize them together. These bills propose adding a new statute to M.G.L. ch. 208: "Section 31B. Parental rights and responsibilities; parenting plans; use of terms."
The proposed new statute would allow parties to use alternative terms for custody. These terms are defined in the proposal, essentially just replacing the term legal custody with "decision making responsibility" and physical custody with "primary residential responsibility". The proposal also includes a definition for "parenting plan."
The bill makes no requirements on the courts and would therefore be mostly window-dressing in our opinion. Allowing parents to use different, more "PC", terms doesn't really change the underlying reality. We already advise our clients to focus on the parenting plan first and the terms second, because how you actually parent your children is more important than the labels.
H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service.
This proposed bill would prohibit courts from modifying parenting plans while a parent was on active duty military service, except for temporary orders deemed necessary to protect the best interest of the child. If a temporary order is made during the active duty period, the original plan will be reinstated upon the parent's return from active duty, and the active duty will not be considered in any modification determination.
This bill will have limited applicability, because most parents aren't facing this issue, but the protection of parental rights for members of the active duty military makes sense. The only potential issue we see with this language, is that it may make sense to allow some transition period back to the old parenting plan if the active duty military parent has been gone for a relatively long time. For example, a young child who hasn't seen a parent for a year, will need some time to get used to them again. This may not seem fair, but it is more realistic. This change could be made by adding only one line to address such a reasonable transition.
H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.
The proposed bill is pretty straightforward:
In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.
Due to the length that some cases can drag out, this may not be practical in its blanket form. In addition, in cases where this type of order is appropriate, Judges are typically willing to make such an order. Changing the presumption to limit the rights of all individuals without a court finding in a particular case seems a bit overreaching and unnecessary. Given that the majority of these custody reform statutes are geared more towards less court oversight rather than more, this proposal stands out as superfluous and not likely to be recommended by the Judiciary Committee.
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
Saturday, February 11, 2012
Custody Reform: The Current State of Massachusetts Child Custody Law
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:
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:
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):
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:
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:
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:
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:
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.
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:
Child Support
The statute also deals briefly with how shared custody may affect child support:
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:
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:
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
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
Monday, January 9, 2012
Custody Reform: S.847 – Shared Custody Above All Else?
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:
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:
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
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
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