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“Shared Physical Custody” Bill Amended, Continues Progress in Massachusetts Legislature
tug of war

Massachusetts divorce lawyer Jason V. Owens updates the progress on the “child-centered family law” in the Massachusetts legislature.

In December, we wrote about new legislation that seeks to make shared physical custody the presumptive standard in all cases involving divorced and divorcing parents in Massachusetts. The two bills, SB834 and HB1207, known collectively as the Massachusetts Child-Centered Family Law, each provided that, “[u]nless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent.”

On March 30, 2016, a new version of the bill, H.4107 – also known as the “Massachusetts Child-Centered Family Law” – was advanced at the expense of the two prior bills. The new bill was reported favorably by the House Judiciary Committee and referred to the committee on House Steering, Policy and Scheduling. The next step for the bill is likely to be a hearing before the full House, when it will be subject to debate, motions and amendments. The preamble to H.4107 provides:

Every child in the Commonwealth has the right to a safe, healthy and meaningful relationship with both parents, subject to the court’s determination of each child’s best interest. Shared parental responsibilities and parenting plans should prioritize the unique needs and evolving maturity of each child consistent with the safety, best interest and well-being of the child. A parenting plan shall be incorporated into every temporary order, judgment of divorce nisi and modification judgment involving parental responsibility for minor children.

Notably, the new bill added the following, somewhat contradictory language (in bold) dictating the proposed standard for physical custody:

A child shall have periods of residing with and being under the care and responsibility of each parent; provided, however, that such periods shall be shared by the parents in such a way as to assure a child frequent, continued and developmentally appropriate contact with both parents and in accordance with the best interest of the child. Time with each parent may but shall not necessarily be equal. Unless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent;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.

undefinedOrdinarily, when a statute provides that a Court shall enter a certain order, this is viewed a presumption. (Indeed, we interpreted the text of the original bills, SB834 and HB1207, as seeking to impose presumptive shared custody on parents unless the judge entered findings explaining why shared custody was not in a child’s best interests.) However, under Section B(2)(a) of the amended bill, “a child shall reside one-third of the time or more with each parent”, but “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.” This begs the question: if shared physical custody is not presumptive under the bill, then what change would the bill actually have on custody decisions if passed?

Shared physical custody is a worthy ideal, but is not appropriate in every case.

One reasonable interpretation of the amendment is that the drafters – facing push-back against presumptive shared physical custody – decided to remove the presumptive language in the hope of passing a custody bill that reshaped the legal standard in favor of father’s rights, while falling short of fundamentally changing how Massachusetts courts decide custody. To that end, the amended bill includes an interesting list of factors for judges to consider when determining legal and physical custody:

1. The relationship of the child with each parent, including the ability to understand the child’s needs and the ability of the parent to be available during his or her parenting time.

2. The reasonable wishes of the child, if the child is of sufficient age, capacity, temperament and understanding.

3. The ability for each parent to work together and communicate regarding the child’s schedule, routine and physical and emotional needs.

4. The geographical location and availability of each parent, including the distance between them.

5. 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.

6. Any special needs of the child, including but not limited to the child’s developmental, emotional, educational, medical and social needs, and the ability of each parent to meet those needs.

7. Whether a parent has inflicted physical, emotional or psychological abuse on the other parent or child.

8. Whether a parent’s abuse of drugs, alcohol or another substance interferes with that parent’s ability to properly care for the child or exposes the child to physical or emotional harm.

9. 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 parent has sexually assaulted or engaged in a pattern or serious incident of abuse against the other parent or a child and that a continuing relationship with the other parent may endanger the health, safety or welfare of either the parent or the child.

10. Whether or not the child’s present or past living conditions adversely affect the child’s physical, mental, moral or emotional health.

11. Whether either parent has deserted the child.

12. The presence of and relationship with siblings and other household members.

13. A parent’s incarceration.

14. A parent’s involving or attempting to involve the child in the parents’ dispute through manipulation or coercive behavior.

15. A parent’s obstructing or impeding the other parent’s communication, cooperation, parenting time, or shared decision-making or attempting to do so without reasonable cause.

16. A parent’s interference with the other parent’s access to the child, absent a reasonable, good-faith belief as to protecting the child, parent or household member from physical or severe or persistent emotional harm by the other parent, and subject to judicial findings as to any such reasonable, good-faith belief.

17. A parent’s conviction for a child-related sexual offense.

18. A parent’s conviction for a child-related sexual offense. (sic)

19. Any other additional factors that the court deems relevant.

Some of the factors listed in the amended bill appear drawn from the Ch. 210, s. 3, the Massachusetts adoption without consent statute. In general, a list of factors for judges to consider in custody cases could be helpful. However, Factors 9 and 13 through 16 in the proposed bill seem focused on addressing elements of so-called parental alienation, a somewhat controversial theory. (To be clear, a parent’s deliberate and sustained attempts to undermine a child’s existing relationship with the other parent is a real and serious problem. The controversy surrounding parent alienation arises out of cases in which “alienation” is used as a means of attacking a primary caregiver for failing to elevate the non-primary parent’s relationship with the child over his or her own relationship following a separation. Perhaps more to the point, parental alienation is a prime talking point for father’s rights groups, which has arguably politicized the theory.)

Many of the factors listed in H.4107 are common sense considerations in custody cases. However, Factors 9, 15 and 16 could be construed as slanted against the parent who has historically been the child’s primary caregiver. At a minimum, the bill can be read as minimizing the historical importance of primary caregivers in custody determinations. In Custody of Kali (2003), the Supreme Judicial Court outlined the importance of a parent’s history as a primary caregiver in custody decisions, holding:

[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. See, e.g., Catania, supra at 1260-1261 (describing primary caretaker presumption as “fair,” “gender-neutral,” “creat[ing] a legal norm that encourages nurturing behavior,” and “serving as a concrete model for the kind of fiduciary conduct that members of a reordering family should continue to expect from one another”); Roen v. Roen, 438 N.W.2d 170, 174 (N.D. 1989) (“Continuity in a child’s relationship with the closest, nurturing parent is also a very important aspect of stability”); Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (“considerable weight should be given to which parent has been the child’s primary caregiver”). Echoing this view, the American Law Institute’s Principles of the Law of Family Dissolution (2002) (ALI Principles) state that a judge “should” allocate custody in proportion to the amount of time each parent previously spent providing care, subject to eight listed exceptions. ALI Principles, supra at § 2.08(1). …. [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.

The factors listed in the amended bill appear to give short thrift to the role of a historical primary caregiver. While H.4107includes four specific, highly detailed factors that appear to target primary caregivers on alienation grounds, nothing in the bill articulates the importance of primary caregivers espoused in Kali.

The bill has been promoted by the National Parents Organization, a father’s rights group whose goals include ensuring that “society understands and respects the essential role of fathers.” Domestic violence groups and the League of Woman Voters of Massachusetts have opposed the bill on the grounds that bill purportedly focuses “on the ‘right to parent’ rather than the well-being and best interest of the child.”

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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