Lawyers Journal

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 time.

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 marital break-up:

"The interests and activities of the child(ren) and the role each party plays, and has played in encouraging and developing such interests;

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 well.

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 parent.²

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 kindly?

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 manipulations.

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 (2012).
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.