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.
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.
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