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Child Custody Bill Passes House, May not Receive Senate Vote in 2016
father and son

Massachusetts divorce lawyer Jason V. Owens reviews the latest amendments to the “child-centered family law”, which awaits a vote in the Massachusetts state senate.

For months, we have followed the progress of the “Massachusetts Child-Centered Family Law“, a version of which was approved by the Massachusetts House on July 23, 2016. Originally, the bill was a vehicle for father’s rights groups pressing for presumptive shared physical custody in all Massachusetts divorce cases. Today, following numerous amendments, the bill has been fundamentally altered. While the bill would still re-write child custody laws in the state, the shared physical custody requirements found in the original bill have been largely stripped away, leaving only a list of “factors” for judges to consider when deciding custody cases.

When we last reviewed he “Massachusetts Child-Centered Family Law”, the House version of the bill was known as H.4107. With the state legislative session nearly over for 2016, the current version of the bill – which is now before the state senate – is H.4544. The newest amendments to the bill, made on July 23, 2016, include the following changes:

  • No more preference for shared custody. Eliminating language in Section 2(a) that stated, “[u]nless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent …” The section now reads, “Time with each parent may but shall not necessarily be equal. The parenting plan shall be known as shared residential responsibility only if the child’s period of residing with and being under the care and responsibility of each parent amounts to one-third or more of the parenting time; provided, however, that nothing in this paragraph establishes a presumption that a child shall spend a minimum of one-third of the time or more with each parent.”
  • Expanded review of children’s wishes in custody decisions. Adding language to Section 5(D)(2), which originally stated that courts making custody decisions may take into account, “[t]he reasonable wishes of the child, if the child is of sufficient age, capacity, temperament and understanding.” The new bill adds to the section, “[w]hen considering the child’s wishes, the court may also give due consideration to factors that have unduly influenced the child’s preference.”
  • Removal of factor suggesting parent must “foster a positive relationship” between child and other parent. Section 5(D)(9), which deals with factors courts may consider in custody cases, was modified to remove this language: “The ability of a parent to foster a positive relationship and frequent and continuing physical, written, electronic, telephonic, and other contact between the child and the other parent; provided however, that the court may not consider this ability if one parent demonstrates that the other.”
  • Greater emphasis on absentee parents. Section 5(D)(11) has been from, “whether either parent has deserted the child”, to “[w]hether there has been a lack of a meaningful relationship between a parent and the child, and the reasons for any estrangement from the child.”
  • Court’s authority to sanction non-compliant parents. Section F, which addressed violations of parenting orders, added new language, granting courts authority to order non-compliant parents to reimburse the other parent for “(a.) reasonable child care and related expenses; (b.) reasonable travel and related expenses; (c.) or lost wages.”

Taken together, the latest amendments continue the trend towards moderating the bill away from its original shared physical custody preference. However, as noted in our recent blog on the bill, the newest version still fails to expressly favor historic primary caregiver parent in custody decisions. The closest the bill comes to acknowledging the importance of historical caregivers is Section 5(D)(5), which provides that courts making custody decisions shall consider:

The willingness and ability of each parent to fulfill caregiving functions, as well as the history of caregiving functions provided by each parent. Caregiving functions are tasks that involve direct interaction with the child or arranging and supervising the interaction and care provided by others.

This brief mention still strikes as giving short-shrift to the importance of historical caregivers in custody decisions, where Massachusetts case law has regularly treated the stability and continuity between children and primary caregivers as the most important factor in custody decisions, as laid out by the Supreme Judicial Court in Custody of Kali (2003):

[I]t is in the “best interests of the child” to preserve the current placement with a parent, if it is a satisfactory one, and that stability and continuity with the child’s primary caregiver is itself an important factor in a child’s successful upbringing. … [The law] cautions against rearranging a child’s living arrangements in an attempt to achieve some optimum from all the available permutations and combinations of custody and visitation, when it is generally wiser and safer not to meddle in arrangements that are already serving the child’s needs. If the parenting arrangement in which a child has lived is satisfactory and is reasonably capable of preservation, it is ordinarily in the child’s best interests to maintain that arrangement, and contrary to the child’s best interest to disrupt it. Stability is itself of enormous benefit to a child, and any unnecessary tampering with the status quo simply increases the risk of harm to the child. …. There may be serious shortcomings in the primary caretaker’s parenting to date, or evidence that a previously exemplary caretaker will not be able to continue providing adequate care. Or, even assuming that the primary caretaker has been providing good care, and all indications are that that parent would continue to do so, it is possible that the other parent may offer some extraordinary advantage to the child that makes the disruption in the child’s life worth the risk. In most cases, however, if the child has been living with one parent for some time, the child’s needs are being adequately met under that parent’s care, and that parent is capable of continuing to care for the child, it is not in the child’s best interests to disrupt that successful arrangement. Rather, it is in the child’s best interests to preserve it. Belief that the other parent might be a little better in some areas ought not suffice to disrupt a child’s satisfactory home life with the caretaker parent. [Citations omitted.]

The latest version of the “Massachusetts Child-Centered Family Law” would provide helpful guidance to Probate and Family Court judges tasked with child custody decisions, if passed. However, even today, the bill appears to understate the importance of the bond between a child and his or her primary caregiver in custody cases.

NOTE: As of 4:02 PM on July 29, 2016, the latest version of the bill had not received a vote in the state senate. The 2016 legislative sessions ends officially on July 31, 2016. Lawmakers will return to Beacon Hill to start the 2017 session in February.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a consultation with Jason V. Owens today at (781) 253-2049 or send him an email

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