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
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 her
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 livin
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 wit
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 (
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 i
Image courtesy of FreeFoto.com 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, m
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 ma
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.
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.
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
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