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