Custody questions are among the most unpredictable and difficult
questions that family lawyers and courts are called upon to answer.
Nowadays most parents are (or reasonably can claim to be) "roughly
equal" caretakers of their children. Accordingly, basing
post-divorce parenting time just on past parenting patterns gets
disputing couples nowhere. In Massachusetts, the "best interest of
the child" standard remains an un-codified thicket of weeds that
doesn't provide guidance when faced with two "good enough" parents
with roughly equal parenting track records who can't agree whose
house will be the "primary residence" or who gets what parenting
If you represent such a parent and need to convince a judge that
he or she should have more parenting time than the other, it's
difficult to distinguish your client by relying upon past custody
patterns. Evidence of those patterns is so often riddled with "he
said, she said" facts. What can a family lawyer do to build a
record that will convince a court (or GAL) to award her client
"primary residency" or primary decision-making authority?
Recently I found an insight in an unlikely place: a court form.
In November 2014, the chief justice of the Probate and Family Court
promulgated a uniform order for courts to use when appointing
Category E and F GALs in custody cases. Practitioners who have
encountered it noticed right away that it is much more detailed
than the former order of appointment. It lists specific questions
that a GAL should investigate and answer in her investigation.
Reportedly, the form was created in response to poorly written GAL
reports that omitted investigation of key information needed to
make custody determinations.
The insight was this: if we are looking for facts to develop in
our custody cases, why not develop the facts that the finders of
fact are being ordered to find?
Paragraph 8 of the order of appointment is based on the multiple
factors contained in the Standards for Category F Guardian Ad
Litem Investigators, Standing Order 1-05. Sections D, E &
F of the standing order contain 38 bullet points, each listing a
specific factual inquiry. The list includes everything from "[t]he
ability of the parent to promote and support appropriate social,
emotional and educational development in the children … ." to the
"[c]hild's temperament and response to transitions." Re-reading
these factors reminded me how the list could be used as an intake
tool and/or factual checklist in contested custody cases.
However, drafters of the GAL appointment order had to condense
the areas of inquiry to make it succinct. The new form boils down
the factors down to twelve areas of inquiry. What's most
interesting is what the authors of the uniform order chose to
highlight from the standing order.
The first four factors in the GAL appointment order -- marital,
parenting, social history of the parties and the health of the
children -- are obvious. Domestic violence information must be
considered, as well as (within the GAL's discretion) the
preferences of children 14 or over.
What struck me as particularly valuable, however, was the
wording of three of the factors. Written mostly in the present
tense, they look towards current and therefore more easily
document-able facts than those that get distorted by the lens of
"The interests and activities of the child(ren) and the role
each party plays, and has played in encouraging and developing such
The demonstrated capacity of each party to understand and
accommodate the individual needs of the child(ren).
The demonstrated capacity of each parent to support an ongoing
relationship between the child(ren) and the other parent."
Documenting the first two factors could be straight forward.
However, the third factor rests upon the post-separation work of
the parents. How many times have we written a separation agreement
that includes, as an affirmative obligation, a command that our
clients shall "foster love and respect for the other parent"? Now,
it's clear that the courts are sending the message that such
co-parenting must begin at once.
As one of the factors in the "best interests" grab bag, this
"respect factor" has always been a personal favorite. Why? Because
it encompasses and supports other attributes that support good
parenting, and that judges increasingly want to see, such as civil
parental communication and non-disparagement of the other parent.
The parent who demonstrably supports the other parent is likely the
one best able to shield the children from parental conflict as
Massachusetts courts have historically favored parents capable
of fostering a positive co-parenting relationship. In Custody
of Kali and Custody of Zia, the SJC relied on the
"positivity factor" as a "tie breaker" in both cases, where the
child had previously spent equal or greater time with one
parent.1 However, the SJC appears to be moving this
factor to the forefront of custody analyses. In a recent case,
Hunter v. Rose, the court affirmed the lower court's grant
of custody to the non-biological mother. Although the case
presented extreme facts (the biological mother had absconded with
the child to Oregon and called the other parent "a dickwad" in
front of the child), which alone could justify the award of sole
custody to the other mother, the SJC took pains to note the efforts
of that mother to be respectful of the other parent -- i.e., having
the child call the other mother each night and keeping a photograph
of and foster the child's relationship with the other
Some states have taken a further step of codifying a parental
"friendliness" standard, so that it is a mandatory factor to be
considered in a custody dispute. As of 2003, roughly half the
states had "friendly parent" statutes on record.3 These
are statutes that require the court to consider specific evidence
that a parent uses communication positively to encourage the
child's relationship with both parents.
In California, for example, courts must "consider, among other
factors, which parent is more likely to allow the child frequent
and continuing contact with the noncustodial parent …
."4 In Pennsylvania, "the court shall consider, among
other factors, which parent is more likely to encourage, permit and
allow frequent and continuing contact and physical access between
the noncustodial parent and the child."5
But what about the risk of penalizing a parent who doesn't
foster inter-parent contact, because the other parent is harming
the children? Colorado addressed this concern by requiring its
courts to consider "the ability of the parties to encourage the
sharing of love, affection, and contact between the child and the
other party; except that, if the court determines that a party
is acting to protect the child from witnessing domestic violence or
from being a victim of child abuse or neglect or domestic violence,
the party's protective actions shall not be considered with respect
to this factor … ."6 Colorado has drawn a wide
circle of acceptable behavior, within which parents must make the
effort to cooperate, or risk an adverse determination. One wonders
whether this encourages divorcing parents to treat each other more
Although our legislature has not adopted any "friendly parent"
provision, the adoption of the new GAL appointment form, will have
courts giving this factor increasing weight. It behooves the family
lawyer to be sensitive to evidence that will weigh on this factor.
What are the take away "practice pointers" here?
It never hurts to restate the obvious to a client who may behave
badly towards the other parent. Urge clients to be civil in all
their communications with their co-parent. If they don't get the
importance, remind them that courts are ordering parents to use
email software that contains a "civility filter" (i.e., Our
Family Wizard). Encourage self-filtering communication.
Have clients document instances where they've tried to support
the other parent's relationship with the child(ren). Texts, emails
and hand-written cards are perfect for this.
Any strategy should always be tempered by reason and caution.
Niceness may not be a wise trial strategy if a client has a valid
concern that a child will become a victim of their partner's
In summary, it's worth reminding clients that parenting usually
isn't a zero sum game where, if the other parent seems to "win"
they "lose." If supporting the other "good enough" parent doesn't
mean sacrificing important boundaries or one's own interests, it
can tip the scales in favor of more parenting time.
1Custody of Zia, 50 Mass. App. Ct. 237, 244 (2000);
Custody of Kali, 439 Mass. 384, 847 (2003).
2Hunter v. Rose, 463 Mass. 488, 498-99
3American Law Institute, (ITALIC)Principles of the Law of
Family Dissolution: Analysis and Recommendations(END ITALIC),
Section 2.08 at 232 (2003).
4Cal. Fam. Code Sec. 3040(a)(1).
5Pa. Const. Stat. Ann section 5303(A)(2).
6Colo. Rev. Stat. Sec. 14-10-124.