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Thursday, September 1, 2011

Custody Reform Summary: The Good, The Bad, and The Compromise


There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.

For our recommendations, keep reading after the table.

Current Law

Proposed Bill

Proposed Change

P1 – P5 Definitions of Custody

S.659

Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.

S.847

Definitions Deleted Entirely

H.1306 & H. 2684

No Change

H.1330

H.2244

P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.

S.659

Delete Paragraph Entirely

S.847

Delete Adverse Effects Language, Add Requirement of Equal Time, Minimum Guaranteed Time Required

H.1306 & H.2684

Delete Adverse Effects Language Only, Adds Parties are equal, and court should maximize exposure to each so far as practical

H.1330

Add requirement to consider who is responsible for adverse conditions, and Add requirement for court to consider “rights of parents”

H.2244

Delete Adverse Effects Language Only, Add Requirement of Equal Time

P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.

S.659

Add Presumption of Shared Physical Custody

S.847

H.1306 & H.2684

H.1330

H.2244

P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.

S.659

Delete willingness of parties to cooperate as factor

S.847

Standard for overcoming presumption is greater: “immediate physical or emotional danger” to children

H.1306 & H.2684

Standard for overcoming presumption is greater: must show child would be harmed by shared custody; Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification

H.1330

If parties unwilling to cooperate order a dispute resolution plan

H.2244

Delete willingness of parties to cooperate as factor, Standard for overcoming presumption is greater: must show clear and convincing evidence that parent is unfit.

P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.

S.659

Reverse Presumption - Court must enter written findings as to effects of the abuse on the child to not order shared physical custody

S.847

Deleted

H.1306 & H.2684

Deleted

H.1330

Add that denial or vacating of 209A shall be binding and facts alleged therein shall not be used in custody determination

H.2244

Deleted

P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.

S.659

Reversed. Presumption at trial of Shared Legal and Physical custody.

S.847

Deleted

H.1306 & H.2684

Reversed. Presumption at trial of Shared Legal and Physical custody.

H.1330

Reversed. Presumption at trial of Shared Legal and Physical custody.

H.2244

Deleted

P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan

S.659

Changed to Parties shall agree and if they do court must accept. If parties cannot agree court may issue its own plan.

S.847

No Change

H.1306 & H.2684

Court may only modify or reject the plan if child would be harmed by shared custody; Presumption of shared custody exists even if parties don’t submit proposals

H.1330

Court may only modify or reject if preponderance of evidence shows that agreement would not be in best interest of children.

H.2244

Court may only modify or reject if parent is unfit

P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.

S.659

No Change

S.847

H.1306 & H.2684

Reversed: If Shared Physical Custody is ordered court shall revise child support order

H.1330

H.2244

P 15 – Right of Parents to access school or medical records

S.659

No Change

S.847

H.1306 & H.2684

H.1330

H.2244

P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children

S.659

Court must accept agreement, or make specific findings that such an order is not in best interest of children

S.847

No Change

H.1306 & H.2684

Court may only modify or reject the plan if child would be harmed by shared custody

H.1330

Court must accept agreement, or make specific findings of clear and convincing evidence that the order is not in best interest of children

H.2244

Court must accept agreement



If you are interested in learning more about why we believe that some of these changes are practical and some aren't, read our previous posts evaluating each of the proposals individually. Based on all of these evaluations, we would propose a hybrid of these bills taking the best parts of each as follows:

Current Law

Our Proposal

P1 – P5 Definitions of Custody

No Change

P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.

Delete Adverse Effects Language Only, Add Parties are equal, and court should maximize exposure to each so far as practical

P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.

Add Presumption of Shared Physical Custody

P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.

Delete willingness of parties to cooperate as factor, Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification

P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.

Add that denial or vacating of 209A shall remove any presumption against shared custody, though court may still consider alleged facts.

P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.

Reversed. Presumption at trial of Shared Legal and Physical custody.

P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan

Court may only modify or reject joint plan if preponderance of evidence shows that agreement would not be in best interest of children.

P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.

Reversed: If Shared Physical Custody is ordered court shall revise child support order pursuant to the Guidelines

P 15 – Right of Parents to access school or medical records

No Change

P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children

Court must accept agreement, or make specific findings that such an order is not in best interest of children






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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