Custody, codified

Issue May/June 2016 May 2016 By Lisa G. Kent

How 'An Act Relative to Child Centered Family Law' could shake the foundations of Massachusetts family law

"All happy families are alike; each unhappy family is unhappy in its own way." -- Leo Tolstoy, "Anna Karenina"

The proponents of Senate No. 834, "An Act Relative to Child Centered Family Law," are out to prove Tolstoy wrong. If SB.834 passes in its current form, the situation-specific approach to child custody will in part give way to checklists, new presumptions and shifted burdens of proof. Unhappy families -- our clientele -- will be judged by new mandatory yardsticks. Think that the "Section 34 factors" could never happen to child custody? Think again.

Testimony and press from legislative hearings indicate that the bill originated in the so-called "father's rights" movement, the result of efforts to counteract what fathers perceive as the courts' bias in favor of mothers as primary child custodians. Women's groups decry SB.834 as a "cookie cutter" approach to custody that elevates the "right to parent" over a child's best interest. The bill's most radical aspects, such as the presumption in favor of one-third parenting time for a parent, and mandating the court's consideration of "friendly parent" factors -- seem aimed to favor the "secondary" parent, still largely fathers.

While I enjoy a good public policy debate, I am tired of the "moms vs. dads" rhetoric. I suspect most attorneys are too. I have a busy practice and clients to serve. I need answers to practical questions to help my clients. If it passes in its current form, how will SB.834 change the practice of family law? Will it change how we advise clients about custody? How will it impact the settlement of cases? Will it affect the cost and means of litigation? Will it benefit certain types of clients over others?

To explore these questions, I made a presentation about SB.834 to a small group of busy family lawyers from my county bar association -- a wonderfully collegial group. We brainstormed how the law could change our practices. Here are the results of this "focus group," along with a few observations of my own:

From "happiness" to mandatory factors: We began by reviewing the underlying principles of the current custody law, M.G.L. c. 208, § 31.1 There's no presumption about shared physical or legal custody, except where there is proven abuse (as provided in section 31A). Read in light of the bill, section 31 seems a tad quaint in basing custody decisions on "the happiness and welfare" of children. With typical lawyerly sarcasm, several of my colleagues observed that the bill seemed to be another out-of-touch effort by legislators and interest groups to tell us practicing lawyers how to negotiate for the "happiness" for our clients' children.

One attorney asked why we needed a new law to tell us what was in a child's best interest. Here were some thoughts:

Perhaps "happiness," being subjective, has outlived its usefulness as a yardstick. In an age where there can be two capable parents, a child could be "happy" in both households. We need guidelines by which to choose one parenting over another.

Underfunded and understaffed courts, inundated with unrepresented litigants need speedy resolutions, especially at the temporary order stage. It's easier for a court to use a checklist when it has little to no time to hear nuanced stories or take evidence.

On the other hand, specific criteria could help anchor clients with objective criteria by which they'll be judged. This helps made custody decisions more predictable, and cases more likely to settle.

The "right to parent" contends with the "best interest" standard: The keystone of SB.834 is contained in this sentence: "Each parent has a right to parent his or her child, absent any limiting factor the contrary and subject to the court's determination of each child's best interest."2 What, exactly, does this mean? One interpretation of this sentence is that it creates an "equation" for courts to apply -- meaning that, first, there's a "right to parent;" second, consider limiting factors (i.e., domestic violence); and, lastly, a reflection on what is in the child's best interest as a whole? Or does it create a balancing test (right to parent vs. limiting factors) that is then subject to the court's own ideas about best interest? How does this make the law clearer? And, as one astute attorney noted, even though there's a "right to parent," do siblings have any rights to remain together? Under SB.834, no.

New names, no problem; but a parenting time presumption?: No one was surprised that the term "physical custody" would be replaced by "residential responsibility." Swapping out the term "decision-making responsibility" for "legal custody" was welcomed. However, the presumption of one-third or more parenting time per parent raised eyebrows. "This is being done to align parenting time with child support guidelines," sighed one attorney. Child support payors will benefit from a new parenting time "floor" from which to negotiate. Parties will negotiate in a much narrower "playing field." This new "tilt" to the custodial playing field could make negotiations more efficient. However, it would add the cost, in lawyer's time and impact on children and parties, of overcoming the presumption in cases where children really should reside primarily in one home.

My colleagues considered SB.834's list of factors that a court must consider in allocating custody. These include:

  • The reasonable wishes of the child.
  • The ability of the parent to foster a positive relationship and frequent contact with the other parent; (the "friendly parent" standard).
  • The ability to communicate and make decisions jointly.
  • Which parent performs caregiving functions.3

Certainly "the children's voice" should be heard, but how are the "reasonable wishes" of a child to be ascertained? Does the bill appropriate funds for children's attorneys? (Answer: no) Will cases become more costly with the need for guardians ad litem? (Answer: yes) How will a court determine if the child is "of sufficient age, capacity and understanding" to have her wishes known? Will the "friendly parent" provisions -- those requiring judges to favor parents who communicate well with the other parent and support co-parenting -- favor gregarious parents over timid ones? And what if the gregarious parent is a sociopath and manipulator?

If a court awarded sole decision-making responsibility to a parent at the temporary order stage, it would have to write a written rationale. "Now we'll have to wait longer for decisions," sighed one attorney. Will judges tend to award joint legal custody increasingly to avoid the burden of the written rationale?

The limiting factors for awarding custody -- such as incarceration or emotional abuse of a parent or child -- seemed self-evident. However, these factors are permissive, not mandatory. If we're requiring courts to factor in positive parenting attributes, why not require them to factor negative parenting attributes as well? One wonders what the reason is behind this significant omission.

The requirement of detailed parenting plans for temporary orders and separation agreements had us all thinking about the extra work needed. In addition to where a child will be every day and night, we must now include in parenting plans, among other things; the child's school district; his or her extracurricular activities; transportation and exchange of the child; a process for making periodic changes to the schedule; information sharing and access, both by telephone and by electronic/digital means; and a dispute-resolution process.

In the end, my colleagues gave SB.834 mixed reviews. My own view is also mixed. The bill has good intentions based upon nationally recognized norms, but there should be no parenting time presumption that tilts the playing field from the start. The "positive parenting factors" should be permissive, not mandatory. Checklists can increase productivity and efficiency and promote high standards for custody decisions, but their worth will always be determined by their application in each individual case. SB.834 needs significant amendments to allow courts and attorneys to help unhappy families, who will, no doubt, continue to be unhappy, each in their own way.

UPDATE: The Massachusetts House of Representatives recently released its own version of SB.834 and currently the bills have been merged as HB.4107.


1SB.834 only amends the section 31, the section applying to the children of married parents. Never-married parents will continue to be judged by their own statutory scheme. The impact of that omission is beyond the scope of this article.

2Senate Bill No. 834, § A.

3SB.834, § D, "Determination of Parental Responsibilities."