Custody Reform Summary: The Good, The Bad, and The Compromise

There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill.

For our recommendations, keep reading after the table.

Current Law	Proposed Bill	Proposed Change
P1 – P5 Definitions of Custody	S.659	Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”.
	S.847	Definitions Deleted Entirely
	H.1306 & H. 2684	No Change
	H.1330
	H.2244
P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	S.659	Delete Paragraph Entirely
	S.847	Delete Adverse Effects Language, Add Requirement of Equal Time, Minimum Guaranteed Time Required
	H.1306 & H.2684	Delete Adverse Effects Language Only, Adds Parties are equal, and court should maximize exposure to each so far as practical
	H.1330	Add requirement to consider who is responsible for adverse conditions, and Add requirement for court to consider “rights of parents”
	H.2244	Delete Adverse Effects Language Only, Add Requirement of Equal Time
P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	S.659	Add Presumption of Shared Physical Custody
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	S.659	Delete willingness of parties to cooperate as factor
	S.847	Standard for overcoming presumption is greater: “immediate physical or emotional danger” to children
	H.1306 & H.2684	Standard for overcoming presumption is greater: must show child would be harmed by shared custody; Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification
	H.1330	If parties unwilling to cooperate order a dispute resolution plan
	H.2244	Delete willingness of parties to cooperate as factor, Standard for overcoming presumption is greater: must show clear and convincing evidence that parent is unfit.
P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	S.659	Reverse Presumption - Court must enter written findings as to effects of the abuse on the child to not order shared physical custody
	S.847	Deleted
	H.1306 & H.2684	Deleted
	H.1330	Add that denial or vacating of 209A shall be binding and facts alleged therein shall not be used in custody determination
	H.2244	Deleted
P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	S.659	Reversed. Presumption at trial of Shared Legal and Physical custody.
	S.847	Deleted
	H.1306 & H.2684	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.1330	Reversed. Presumption at trial of Shared Legal and Physical custody.
	H.2244	Deleted
P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	S.659	Changed to Parties shall agree and if they do court must accept. If parties cannot agree court may issue its own plan.
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody; Presumption of shared custody exists even if parties don’t submit proposals
	H.1330	Court may only modify or reject if preponderance of evidence shows that agreement would not be in best interest of children.
	H.2244	Court may only modify or reject if parent is unfit
P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	S.659	No Change
	S.847
	H.1306 & H.2684	Reversed: If Shared Physical Custody is ordered court shall revise child support order
	H.1330
	H.2244
P 15 – Right of Parents to access school or medical records	S.659	No Change
	S.847
	H.1306 & H.2684
	H.1330
	H.2244
P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	S.659	Court must accept agreement, or make specific findings that such an order is not in best interest of children
	S.847	No Change
	H.1306 & H.2684	Court may only modify or reject the plan if child would be harmed by shared custody
	H.1330	Court must accept agreement, or make specific findings of clear and convincing evidence that the order is not in best interest of children
	H.2244	Court must accept agreement

If you are interested in learning more about why we believe that some of these changes are practical and some aren't, read our previous posts evaluating each of the proposals individually. Based on all of these evaluations, we would propose a hybrid of these bills taking the best parts of each as follows:

Current Law	Our Proposal
P1 – P5 Definitions of Custody	No Change
P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation.	Delete Adverse Effects Language Only, Add Parties are equal, and court should maximize exposure to each so far as practical
P7 – Presumption of temporary Shared Legal Custody absent emergency conditions, abuse or neglect (requires written findings for sole legal). No presumption of shared physical custody.	Add Presumption of Shared Physical Custody
P8 – Court shall consider best interest of the child, and all relevant facts, including alcohol or drug abuse, and willingness of parties to cooperate.	Delete willingness of parties to cooperate as factor, Change in availability of a parent or change in developmental state of child shall be sufficient for a Modification
P9 – Court must make written findings to order shared legal or physical custody if prior or current 209A restraining order.	Add that denial or vacating of 209A shall remove any presumption against shared custody, though court may still consider alleged facts.
P10 – No Presumption of Shared legal or physical custody at trial on merits except under 31A.	Reversed. Presumption at trial of Shared Legal and Physical custody.
P11-13 – Parties shall submit a detailed shared custody plan and court may accept, modify or reject the plan	Court may only modify or reject joint plan if preponderance of evidence shows that agreement would not be in best interest of children.
P 14 – Award of shared legal of physical custody shall not affect a parent’s responsibility for child support and shall not constitute grounds for modification of support.	Reversed: If Shared Physical Custody is ordered court shall revise child support order pursuant to the Guidelines
P 15 – Right of Parents to access school or medical records	No Change
P16 – Where parents have agreement court MAY enter it, or make specific findings that such an order is not in best interest of children	Court must accept agreement, or make specific findings that such an order is not in best interest of children

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