WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Monday, August 29, 2011

Custody Reform: H.1330 - Can Court Ordered Mediation be Effective?

HO1330 is the second House bill which proposes to make amendments to the current custody statute. This proposal was also filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.

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

Unlike the first House bills we reviewed (H.1306), this proposal doesn't change the best interest standard, but still adds a presumption of temporary shared physical custody.

This bill begins by deleting the current statute and replacing it entirely, however much of the text remains the same. The definitions of custody remain in the proposed bill, as does the presumption of temporary shared legal custody.

The bill adds the "rights of the parents" to the factors that the court should consider in creating parenting plans. The proposal keeps the language allowing the Judge to consider adverse affects of the past or present living situations but adds language requiring the court to consider "who was responsible" for this conduct. The addition is understandable, but from a practical standpoint if the court was considering negative conduct then who was at fault was already being considered as well.

Temporary Shared Physical Custody and Required Dispute Resolution

The bill also adds a presumption of temporary shared physical custody, and still allows a Judge to order sole custody if shared custody is not in the best interest of the child with the addition of requiring written findings of any such decision. This means that the standard is not changed but that the Judge must specifically write in the order how they applied the standard.

The next section of the proposed bill makes the most significant change to the current statute, by adding more specific language as to what factors the court should consider in denying shared custody:

In determining whether temporary shared legal and/or physical 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 parent abuses alcohol or other drugs, has deserted the child or alienated the children toward the other parent; but a history of the parties inability to cooperate will not be determinative of the issue of custody. If there are facts of a lack of cooperation or by agreement of the parties, the agreement or order must contain a provision for resolution of matters of dispute in the future during joint legal or physical custody by final alternative dispute resolution a) arbitration in accordance with the provision of c. 105C in this court, b) by agreement, or c) presentation of the issue in dispute only to the probate court by complaint pursuant to c. 231A for future resolution and an enforcement order. Such alternative dispute resolution must be tried and fail before a modification can be entered in this regard. Orders described herein after hearing or trial and or an agreement enforced by the court shall be considered a final judgment notwithstanding future dispute resolution provisions are included therein. In addition it shall be grounds for modification of custody and the awarding of counsel fees to the other party, if a parent is found to have persistently and/or in bad faith, failed to carry out the terms of the said joint custody order or engaged in parental alienation in regard to the other parent with a child.

In addition to enumerating more specific factors, this section requires dispute resolution, and wouldn't allow the court to deny shared custody because of one parents failure to cooperate with communication. This is a major complaint about the current statute. The motivation behind requiring better communication and better efforts towards communication is noble, but the practical implementation of this section may not be realistic.

Unless the Courts can budget for dispute resolution services (unlikely), then many litigants will not be able to afford the required dispute resolution services. In principal this is a statutory recognition of a failure of the court to properly resolve these matters, and in that way feels like an admission of failure. Wouldn't it be better to improve the court system than to require people go elsewhere?

One possible compromise, for example, would be to allow Judges the authority to appoint Parent Coordinators. Another possible solution would be to revamp the required Parenting Course to include dispute resolution training.

Restraining Order Presumption

This proposed bill also makes changes to the language relating to restraining orders in the original custody statute. We have already discussed our concerns about proposals which delete this standard altogether (or in some cases reverse it). In this case, this proposed bill offers a compromise between keeping the presumption and deleting it:

If despite a current or permanent restraining order against one parent pursuant to chapter two hundred and nine A being in effect, 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 and cause the 209A order to be amended in regard thereto. The denial, or vacating of such an order first issued in a prior 209A matter by any court, shall be binding on this court, and the facts alleged or which could have been alleged, shall not be permitted to be considered again in regard to its custody or visitation determinations under this section. The definition of ‘abuse’ shall be the same in custody and visitation matters as defined by c. 209A.

This paragraph would keep the presumption against shared custody when a 209A order is currently in effect. But if the 209A order is denied or vacated, that decision shall be binding on the Family Court and the alleged facts cannot be then reiterated in the custody hearing. This change makes an attempt to weigh the desire to protect children from abusers, with an attempt to protect the wrongly accused from having to defend themselves in multiple courts from allegations already found false by a previous court.

There are still some potential problems with this compromise, though. If a 209A request is vacated or denied, this only means the facts presented don't rise to the level to require Protection from Abuse. This doesn't mean the facts are necessarily false or irrelevant for custody determinations. For instance, what if a mother requests a 209A because the father is a drug addict and the mother is in fear because of the unpredictable nature of his addiction. A Judge could reasonably find, without more evidence of past physical violence or threats of violence, that drug addiction is not enough to warrant a 209A Protection from Abuse. Under a strict reading of the proposed language, the facts presented at the 209A hearing can not then also be considered by the Family court in custody determinations, even though they are clearly relevant.

The intent of this proposed language is good, but the application could be impractical. There is a way to draft the language to reach a compromise more appropriately. For example, rather than disallowing the entry of the facts in evidence, the requirement of written findings is deleted if the 209A is denied or vacated and the presumption for shared custody remains in this case. This would be an appropriate compromise that wouldn't keep the Judges from hearing relevant evidence, but still prevent parties from using false restraining orders to obtain a custody presumption.

Permanent Shared Physical and Legal Custody:

The proposed bill keeps the requirement for the submission of parenting plans at trial if there is a custody dispute, but adds a requirement that said plans contain dispute resolution provisions. In addition, the proposed bill would add a presumption of shared legal and physical custody at trial:

There shall be a prima facie presumption in favor of shared legal and physical custody in determining final custody and visitation on the merits, at trial by agreement and/or at a hearing.

In addition, the standard for overriding a joint plan proposed by the parties is significantly higher under this bill:

If the plan is submitted by the agreement of the parties jointly, the court may not reject such a joint custody plan submission and issue a sole legal and/or physical custody award, unless there is a preponderance of the evidence submitted sufficient to overcome the presumption of shared custody or to support an amendment to the joint plan, and the court issues findings of fact and law giving its reasons for such actions.

As discussed in previous posts, Judges don't usually deny jointly created custody plans anyway, so raising the standard is unnecessary but also a non-issue.

Child Support

The proposed bill also reverses the Child Support section to require reconsideration if there is a change to shared custody:

An award of shared physical custody shall be considered in determining the amount of child support owed by either parent based on the time the children are supported by either of them when in their residences under the plan and the economic circumstances of the parties. An order of shared custody shall constitute grounds for modifying a prior support order based on sole custody if there is a demonstrated economic impact that is a sufficient basis to warrant modification, or may be the basis for changed orders during joint custody if the economic circumstances of either of the parties shall change in the future.

This is consistent with the current Child Support Guidelines and makes more sense than the current statute.

Finally, the proposed bill also adds the preponderance of the evidence standard to the appeals section C. 215 Section 9.

Conclusion:

Good Intentions, Bad Law. The premise of many of the changes made her makes sense, and we even support the attempt to compromise on the controversial restraining order issue. However, the language of the proposed bill creates impractical requirements to accomplish these changes. The restraining order section should be rewritten, and there should be greater investigation into the best way to foster conflict resolution (other than required dispute resolution services).

This bill is a step in the right direction (and better than most we've reviewed so far), but still needs some work to have the practical effect intended.

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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