The Proposed Child Custody Law — Will It Make a Difference?

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Boston Family Law New Child Custody Law

There may be changes coming to the way child custody decisions are made by courts in the Commonwealth of Massachusetts if a proposed bill is passed into law by the state legislature. Bill S.834 has been presented to the legislature to replace the existing statute (Mass. General Laws Chapter 208, Section 31), and is currently under review and debate.

Section 31 has been under attack for several years as being antiquated, in that it seems to result in custodial arrangements that favor one parent over the other when it comes to parenting time – usually the mother over the father. Critics of the present law contend that if a father wants equal parenting time, then he would be forced to litigate his case before the court, resulting in thousands of dollars being spent and hours of wages lost in a custody battle that leave both parents beaten and battered, regardless of the outcome. For some examples of this, see a recent article from the Boston Globe: ‘I’m out of money, and I’m out of hope’: Rethinking custody battles.

Bill S.834 attempts to directly address this issue in its public policy statement:

“Each parent has a right to parent his or her child absent any limiting factor to the contrary and subject to the court’s determination of each child’s best interest.” — Bill S.834

Let’s compare that to what the existing law’s approach to determining custodial issues:

“In making an order or 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 their custody.” Mass. General Laws Chapter 208, Section 31.

Initially, there does not seem to be much difference in the language. However, Rule 31 continues: “There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits….” If the law as it currently exists seems to already favor shared, equal parenting rights, why is there a change is needed?

Inherent in most family law issues, courts are given wide latitude in exercising their discretion. Court decisions reached on custodial issues are rarely overturned on appeal because the appellate justices give so much deference to the trial judge. This is because the appellate court does not see any direct evidence other than what appears on paper, while the trial judge has several opportunities to have direct contact with the parties in each case and make assessment of their character and honesty.

So perhaps the law is not the cause problem, but the values brought to the bench each day by the human beings that oversee these matters and are asked to make difficult, and sometimes impossible, decisions.  Or, perhaps, the problem stems from the parties themselves and the manner in which they address the court and each other.

Toward that end, the proposed law does offer some new factors for the courts to consider when making decisions relating to custody as follows:

“1. The relationship of the child with each parent.

  1. The reasonable wishes of the child, if the child is of sufficient age, capacity, and understanding. When considering the child’s wishes, the court shall also give due consideration to factors which may have unduly influenced the child’s preference.
  1. The ability of each parent to communicate and cooperate with the other parent and participate in making joint decisions concerning the child.
  1. The present and expected physical, emotional, and geographical availability of each parent.
  1. The present interest, desire, and abilities 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.
  1. 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.
  1. Any other additional factors the court deems relevant.”

S.834

The drafters of the new bill hope that these factors will encourage the courts to favor shared legal custody (which will instead be called “decision-making responsibility”) and shared physical custody (which will instead be called “residential responsibility”). However, there is no language in the proposed statute that explicitly states that decisions of shared parental responsibility is more favored or desired over decisions of primary parental responsibility, other than language that seems to already exist in Section 31. So if S.834 becomes the new law, will it really achieve the desired effect?

The proposed law, like its predecessor, leaves much to the discretion of the trial court judge, whose orders or judgments are largely unpredictable and untouchable on appeal. The hope is that the factors provided for the court to consider when making its determination will favor a more even-handed approach on the issue. Time will tell if this subtle difference will have a significant change in the outcome of child custody disputes.

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