WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Thursday, August 25, 2011

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 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

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