Skip to main content

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

Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann . Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?" I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “W