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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.


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


  1. The law should make sure that the child is given utmost importance and care.


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