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.
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