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Wednesday, August 31, 2011

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:

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

Tuesday, August 30, 2011

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

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

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

Wednesday, August 24, 2011

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:

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

Tuesday, August 23, 2011

Custody Reform: S.659 – Change that Goes too Far?

Having provided an in-depth review of the current custody statute in Massachusetts, we will now move on to our review of the six proposed bills that would significantly modify that statute.

The first bill we will review was filed in the Senate on January 19, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011. This bill makes some changes which could be positive, but also suggests one change that in our opinion goes too far.

S.659 – Legislation to strengthen family relationships through responsible shared parenting

This bill begins by deleting the current statute and replacing it entirely:

Chapter 208 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out section 31 and inserting in place thereof the following section: -

However, much of the original language remains in this version, including the definitions of sole legal custody, shared legal custody and sole physical custody. The first difference is in the definition of shared physical custody, adding the italicized language:

"Shared physical custody", a child shall reside equally with and be under the supervision of each parent for specified periods of time; 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. The child is not required to reside with each parent for an equal amount of time during any given period.

These additions indicate a preference for equal time but also clarify the common-sense approach of sharing parenting time equally does not require counting every minute of every hour to ensure that the time is exactly equal.

Another change to the definitions in this proposed bill is the addition of a definition for the term "parenting plan":

"Parenting plan", an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical 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 and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.

This addition requires the Courts to create a standardized parenting plan format. This format could presumably be reduced to a form with certain required details for each case, which would result in more consistent parenting plans. Having standardization would protect pro se parents (those without attorneys) by helping them understand what issues their agreements should address. However, this approach would also reduce the flexibility which parents have in crafting their own parenting plans currently. How the Chief Justice implements this section could make a big difference on how flexible parenting plans could be in the future.

The next section of the current statute is largely superfluous because it doesn't add anything to later sections. However, this proposed bill would change this paragraph significantly by adding the following italicized language:

There shall be a rebuttable presumption that shared legal and shared physical custody is in the child's best interest. In making an order of 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 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 the physical, mental, moral or emotional health of the child, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. The court shall further consider the capacity and disposition of each parent to comply with the terms of the parenting plan.

The current statute contains only one presumption, temporary shared legal custody. This means that there is currently no presumption for temporary or permanent shared physical custody or even for shared legal custody at a trial. The addition of the first sentence above, would change that completely, by creating a presumption for both throughout the case.

The addition of the "willingness" clause specifically addresses the fact that shared custody is often denied because one parent refuses to cooperate with the other. However, pointing it out specifically as a factor does not solve the problem that these cases are hard, not because of a vague standard, but because of the difficulty in obtaining evidence of alienation. It is very tricky to prove, especially with the evidentiary limitations on hearsay, that a person is not being cooperative or trying to alienate the child. This section clarifies that a Judge should consider this evidence, but doesn't solve the problem of how difficult it is to get that evidence in the first place. Even with this change, these types of cases will remain very complicated, and probably still require the involvement of a Guardian at litem.

As further enforcement of these new presumptions, the proposed bill adds a presumption of temporary shared physical custody to the presumption of temporary shared legal custody. This means that at a temporary order hearing, a Judge will have to order shared physical custody unless he or she makes a finding that shared custody would not be in the best interest of the child. This proposed bill also deletes the language that specifically allowed the Judge to consider "whether the parties have a history of being able and willing to cooperate in matters concerning the child." Of course, deleting the language carries some weight, but since this proposal doesn't preclude the Judge from considering this information it could still be considered under the "best interest of the child" standard.

The next section in the current statute was a further exception to the shared legal custody presumption in cases involving a restraining order. If a restraining order issued, under the current law, then the court must provide findings to allow shared custody. In other words, the Judge must have a good reason for allowing shared custody if their is a restraining order. This is essentially a presumption that the standard which must be met to obtain a restraining order (history of physical or sexual abuse or a reasonable fear or imminent serious physical harm), is sufficient to suggest that shared custody would not be appropriate.

This proposed bill turns that presumption around:

If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, section 38 of chapter 209, section 3 of chapter 209A, or section 10 of chapter 209C and issues a temporary or permanent custody order which does not grant shared physical custody, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child?s best interests and provides for the safety and well-being of the child.

This language requires that a Judge not make any changes to the shared custody presumption due to a restraining order, unless the Judge finds that the abuse affects the child, and the limitations are in the best interest of the child. The requirement of specific findings relating to the child is presumably based on the idea that even if abuse exists between the two parents that doesn't necessarily mean the accused abuser would also endanger the child. If you consider cases of true physical domestic violence, this presumption seems ludicrous. If a parent is willing to hit the other parent, why would't we assume they may also hit their child. The proponents of this change would likely respond that cases of actual violence would clearly allow the Judge to make the findings required under this language. So the change is really meant to deal with the cases where the accusations are vague or heavily disputed. But is this enough to shift the presumption?

Shifting this presumption is an idealogical choice based on an assumption that the majority of restraining orders involve either minor issues blown out of proportion, claims of fears that aren't based in reality, or accusations that are completely fabricated. While it is true that these cases do exist, changing the presumption to require Judges to make findings that the alleged abuse does not affect the child, essentially requires them to rehear the entire restraining order case in order to decide the issue of shared physical custody. If the majority of restraining order issues didn't affect children, that would make sense, but this is an assumption that would require some evidence before we could back it. The presumption of shared custody should not outweigh some requirement to err on the side of protecting children first. In cases where a restraining order has been extended there is at least one Judge who found good reason for it. This should be enough to create a presumption against the accused abuser, if only to err on the side of protecting the child. It may be unfair in some cases, but much less unfair than requiring a victim of abuse to prove the abuse twice in order to protect the children.

The next change is less controversial, but still significant. The language in the current statute relating to when parties must propose parenting plans to the court is shortened because much of that detail is now included in the added "Parenting Plan" definition. There is also an addition here, though, of the words: "custody hearing"

The parties, jointly or individually, shall submit to the court at the custody hearing or trial a parenting plan. The court shall accept a completed parenting plan submitted and agreed upon by both parties, in the event that a parenting cannot be agreed upon by the parties, the court may issue a parenting plan modifying a plan submitted by the parties. A parenting 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 change would mean that parents would have to submit parenting plans at any custody hearing (including temporary orders). This is good practice anyway. In any hearing where issues are disputed we try to submit a proposed order for those issues. Requiring it puts everyone on notice that they should be prepared to do so and is therefore a change we are in favor of.

The final change is substituting the word "will" for the word "may" in the following paragraph:

Where the parents have reached an agreement providing for the custody of the children, the court may will 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.

This doesn't change the Judges' discretion to make changes to the plan if they make findings that the best interest of the children requires something different, but absent said findings it requires implementation of the parents' plan. In practice this is what happens anyway. Judges seldom vary from an agreement, and when they do they provide reasons for the variation.

Conclusion:

Most of the changes suggested by this bill, in our opinion, are a step in the right direction. They may not be practical, such as the requirement of the Chief Justice to create standardized parenting plans, but all of these changes seek equality of parenting time as a default. Given the greater involvement of both parents in the modern world, and the greater likelihood that both parents work outside the home, these defaults make more sense today, with one exception: very young children.

Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newborns have (especially if the mother is breast-feeding).

We are in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. We would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.

In addition, the proposed bill makes one change that goes too far, requiring extra findings in abuse cases. Again we would urge that Custody Reform be based on evidence about what defaults are in the best interest of children. There would have to be strong evidence that the majority of children were not harmed by the accused abusers in restraining order cases for us to favor this type of change. The current presumption errs on the side of protecting children, and that seems more appropriate absent strong evidence that such a presumption is not necessary.

Because of this one major difference of opinion with the drafters of S00659 this is not a bill we would support in its current format.

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, August 22, 2011

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:

“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

Friday, August 19, 2011

Custody Reform: What is it?

If you live in Massachusetts, by now you've probably heard about Alimony Reform. Both the House and Senate have passed the Alimony Reform Act of 2011 and it now awaits the approval of the House again (for some language changes made by the Senate). Although, the majority of people in Massachusetts are just now learning about this reform, it has actually been in the works for at least 10 years. In various forms there have been numerous attempts to update the alimony laws in Massachusetts, culminating with a recent Legislative Task Force which authored and approved the current bill.


The same type of reform may be on the horizon for the Massachusetts custody statute.

The Joint Committee on the Judiciary held a public hearing on May 18, 2011 where public testimony was given primarily on Alimony Reform and a pending human trafficking bill. But there were also a few people (mostly fathers) who were there to present testimony in support of a few different bills that would make changes to how custody is determined in the Massachusetts Probate and Family Courts. After further review there are currently six pending bills which would make significant changes in this area, and six more that would make minor tweaks or additions to the current custody statute.

We have provided links to the current custody statute and each of the proposed bills, below. Over the next two weeks we will be posting a series of blogs evaluating the pros and cons of each of these proposals and comparing them to the current statute. We believe that, similar to alimony reform, there are flaws in the current law that could be improved with some updating. However, we also recognize that some of these proposals go too far.

We will provide insight to how these proposals might work in certain instances and fail in others and we hope that our analysis over the course of these posts will provide a benefit from our experience as family law practitioners.

Current Statute: M.G.L. 208 s 31 - Custody of children; shared custody plans

S.659 – Legislation to strengthen family relationships through responsible shared parenting;

S.847 – Legislation to share custody of minor children of divorced or separated parents;

H.1306 – Legislation relative to shared parenting in cases of divorce;

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

H.2244 – Legislation relative to the rights of parents in child custody proceedings;

H.2684 – Legislation relative to supporting children and parental custody;

H.2851 – Legislation relative to mediation of divorce cases involving children;

H.1305 – Legislation relative to child care involvement of non-custodial parents;

S.691– Legislation relative to parental choice of terminology in certain domestic relations matters;

H.2258– Legislation relative to parental choice in child custody agreements;

H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service;

H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.

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, August 15, 2011

Latest Update on Massachusetts Alimony Reform Act of 2011

Both the House of Representatives and the Senate in the Massachusetts State House have unanimously passed the Alimony Reform Act of 2011, however, the Senate changed a few words. Proponents of the bill are hoping that it avoids going back to committee, and as of now it is unclear as to whether a full House vote will be required. The bill is still expected to pass, but this is a bump in what has for some been a very long road towards reform.

Thursday, August 11, 2011

Why I Hope You Never Call When I Give You My Business Card, But If You Do, I'm Here to Help

At Kelsey & Trask, we deal with helping individuals through difficult transitions, whether it be through bankruptcy or debt relief services, or through a divorce or paternity case. Most people hire us for reasons that they wished did not exist. Our business is helping people through situations that they have always wanted to avoid.

When I hand out my business card, I usually tell the recipient that I hope that they never have to call. It is not that I don't want to help people through difficult transitions, it is because I hope that these difficult transitions are not necessary. If, God forbid, you are faced with such a transition, let us help guide you to the next chapter of your life.

Divorce Court is Not Like the Television Show "Divorce Court"

At Kelsey & Trask, we like to tell our clients that we assist them in the process of transitioning from one chapter in their lives to the next. In the context of divorce, this transition for many is emotionally difficult. At times, there is often the urge to lash out at one's soon-to-be former spouse, and many people are drawn to the concept of "winning," or righting a wrong.

There are very few pure victories in Probate & Family Court. The nature of the legal process of getting divorced is incomparable to a criminal trial, where a defendant is found guilty or not guilty, or a civil trial, where a defendant is found liable or not liable. I have often explained to clients that "divorce court is not like the television show by the same name." Just because there is a judge does not mean that your worth as a husband or wife will be judged; no "winner" will be announced.

The evolution of no-fault divorce was meant in part to prevent having a courtroom regularly host the high-emotion conflict that one might see on "The Jerry Springer Show" or "Maury." Divorce court is disappointingly unsupportive for those looking to air their grievances against their former mate.

There are certainly instances where cases are litigated in a way that exposing the skeletons in a soon-to-be former spouse's closet is necessary. However, it is important to realize that the system of divorce court is ill-suited for emotional healing. It is designed to divvy up what the couple has and set up a plan for the children, if any, without diving into the psychology of the individuals involved unless the situation requires it.

As stated in a recent post , we wrote about how some emotional issues that arise during the divorce process are better suited for a specialist than an attorney, and we often refer our clients to someone with more training in the appropriate field.

It is important to realize that divorce court's shortcoming as a psychological healing forum means that often finalizing a divorce does not mean the end of the emotional aspect of breaking up. More times than not there is at least some residual bitterness and negativity, and dealing with these emotions at some juncture is necessary. While we at Kelsey & Trask will do everything that we can to assist in handling the legal transition, we are glad to be able to point you in the right direction if additional support would be helpful.

Is it Moral? Is it Legal? These are not the same Question.

Dammit Jim, I'm a Lawyer not a Priest!

I often have to refer my clients to other professionals when issues arise in a divorce case that I do not have professional training to deal with. The most common example is when I tell clients that they need to seek the assistance of a therapist, because they are using me to help deal with emotional problems. But there is also the rare occasion when a client will ask me whether they should do something which I find morally offensive but which is technically not illegal. In these situations I will explain to a client that their actions may not have legal consequences but they may have other (moral) consequences. In other words, just because something is legal doesn't mean you'll be able to sleep at night.

A good example of this distinction is the latest case of divorced parents acting inappropriately:

Mr. Morelli published a Blog entitled "The Psycho Ex-Wife" where he and his current significant other bash his ex-wife and even, in some instances, his own children. The Court ordered him to take the site down, and this has sparked significant controversy over his potential First Amendment rights.

There are really two issues at play in this case, and many commentators seem to be confusing the two. The first issue is whether or not Mr. Morelli should be legally allowed to publish this material. Or put another way, is his speech protected by the First Amendment? The second, and just as important, issue is whether or not Mr. Morelli's actions are moral.

Because this is a Blog devoted to legal issues in family law, I will address the legal question first:

1. Is the Psycho Ex-Wife Blog protected by the First Amendment?

I have seen many Judges order parents not to disparage the other parent in front of, or within earshot of the children. In addition, we often include this provision in our parenting plan agreements. Obviously parents can agree to limit their rights, but is it a violation of the First Amendment to prohibit parents from speaking their mind to their children?

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The Courts have expanded this limitation on Congress to include any "state action" by officials of any level of government, which would include state Judges. But that doesn't mean that freedom of speech is absolute. There are limitations which the U.S. Supreme Court has found are permissible.

The most common example is that you are not free to yell "fire" in a crowded theater if there is no fire. The incitement to riot or violence is considered unprotected for obvious reasons.

But there are other limitations that should be common-sense as well. You do not have the right to slander others, and in fact you may be subject to civil litigation if you do. You also don't have the right to publish obscenities. While these limitations are often difficult to pinpoint and usually involve some gray area, the overriding theme is that the government is not allowed to limit your speech because it is unpopular or distasteful, but can limit speech to protect the public.

In the Psycho-Ex Wife Blog case, the state Judge is trying to protect the children, and most state laws give Judges broad discretion to protect the best interest of children in custody disputes. In most cases, the Judge is not ordering that a parent cannot complain about their ex, but only that they can't do it in front of their children, who could obviously be damaged by such comments. It seems that this type of limitation is within the scope of restrictions which have previously been allowed.

Fortunately (or unfortunately, depending on your perspective), we are unlikely to see such a clear-cut case address this issue in front of the Supreme Court, because what parent wants to be the one to take an appeal to the Supreme Court claiming they should be able to tell their children directly that their Mom is a psycho.

In this case, Mr. Morelli has not taken it that far. Instead he has attempted to blur the line by claiming that his Blog was sufficiently anonymous and that the children would not have known about it if not for their Mother showing them the website. If the Mother showed the children the site then certainly her actions are as deplorable as his, but the legal question is: would they have found it anyway? The distinction he is attempting to make is that telling your children directly that their Mom is a psycho is different than writing it on the internet. But is it really that different?

Given how often we write on this blog about being careful with anything you put on the internet, you can probably guess where we come down on this issue. You should assume that everything you put on the internet is public and will be seen by anyone who can access the internet, especially the people you least want to see it. The idea that Mr. Morelli can protect his children from something he writes on the internet forever is laughable, and clearly that is where his argument breaks down. I can't recognize the practical distinction between saying something directly to your children and writing something on the internet in a forum where it can be copied, reposted, discussed on other blogs, and even end up on the Today Show.

The simple fact that this story has now made national news proves my point that once you put something on the internet you risk it having a life of its own and growing to a point where you do not control who sees it. This is especially true for your own children who have all the motivation in the world to read everything you tell them not to.

If there is no practical distinction between calling your ex a psycho on the internet, and saying it in front of your children, then the only way that you can support Mr. Morelli's First Amendment argument is to agree that he should have a constitutionally protected right to say these things directly to his children. Given the amount of psychological damage that can cause children of divorce, I don't think the First Amendment stretches that far.

2. But even if the First Amendment does protect his speech, Is it Right?

On principle, we don't endorse asking your lawyer for moral advice. But if you've read this far, you probably already know what our answer to this question is. Mr. Morelli doesn't seem to understand that his actions increase the conflict, not minimize them. He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems. This is a distinction lost on many, especially those who are particularly angry about how their divorce went. Complaining can be cathartic, but it doesn't solve problems and if you complain in a forum accessible to your ex, then you are more likely increasing the conflict, not trying to deflate it.

Many people will try to turn this case into a forum to talk about how hard it is to be a divorced mother vs. a divorced father (just read the comments on Huffington Post to see how far this has gone). This is exactly what Mr. Morelli was trying to do. Like many on the internet he was seeking validation through shared experience, and that validation was more important to him than his children's well-being. If he truly believes that his children would never see the words he wrote on the obviously public form of the internet than he is delusional.

Unfortunately, it is much more likely that he is looking for the same validation from his children that he is from the public. It is far more likely that when he wrote this blog he was actually hoping his children would see it some day.

This desire to be the "validated" parent is a common feeling. Parents often want their children to be on "their side" and understand that the other parent is at fault. The reason that the court has to tell parents that they shouldn't bad-mouth their ex-spouse in front of their children, is exactly because this feeling is common-place. Sometimes common-sense and moral judgment must be used to overcome strong emotional responses. Sometimes being a good parent is about biting your tongue. Mr. Morelli and his "psycho ex-wife" would be better off if they learned that lesson, or at least their children would be.

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