Massachusetts divorce lawyer Jason V. Owens reviews proposed legislation that would make “shared physical custody” presumptive in Massachusetts.
The Massachusetts legislature is currently debating a bill that could make “shared” physical custody the presumptive first choice for divorced and divorcing parents in the Commonwealth. The phrase “shared physical custody” has long had a polarizing effect on parents, family law attorneys and judges in Massachusetts. Of particular note is that “shared” physical custody does not necessarily mean “equal” parenting time, despite the frequent conflation of these terms.
A significant body of research suggests that equal parenting time benefits children if the parents are able to work together in a conflict-free manner. However, an equally substantial body of research shows that exposing children to parental conflict – a risk that increases with shared parenting time – is uniquely damaging to children. Meanwhile, the problematic relationship between shared physical custody and child support frequently incentivizes parents to pursue shared physical custody as a means of lowering or eliminating child support. Similarly, the emphasis on shared physical custody sometimes places the focus on one parent’s “rights” versus the needs of the child.
As a family law practitioner, I cannot speak directly to the science, but I can say this: collectively, the behavioral science does not “overwhelmingly” favor shared physical custody or primary custody to one parent. Instead, the scientific debate is highly contentious, with each position supported by dozens of peer-reviewed publications posing diametrically opposed positions. (Indeed, what the science overwhelmingly supports is that children benefit from strong financial support, where economic indicators tend to be far better predictors of future success for children than parenting schedules.)
The Massachusetts legislature is now considering two bills, SB834 and HB1207, which are collectively known as the Massachusetts Child-Centered Family Law. They key provision within each bill is that, “[u]nless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent.” However, a careful reading of each proposed bill suggests that the law would not depart too radically from the current “best interest of the child” standard, where the Massachusetts Child Support Guidelines already calculate child support on the assumption that a non-residential parent has one-third of the parenting time.
To be clear, while the proposed language appears to make 1/3 parenting time presumptive for non-custodial divorced parents, the bills also provide that “[t]ime with each parent may but shall not necessarily be equal”. This suggests that the bill falls substantially short of mandating equal parenting time. If passed, the main effect of the bill may prove largely semantic. The bill appears to define “shared” parenting time as any schedule in which the non-residential parent has at least 1/3 of the parenting time. However, with child support-paying parents already presumed to have 1/3 of the parenting time, under the Guidelines, it is difficult to see how much this bill would actually change the status quo.
One potentially thorny provision in the bill(s) is what appears to be an absence of language distinguishing between the entry of an initial custody order and the modification of an existing custody judgment. Current law requires a party to demonstrate a substantial change in circumstances to modify an existing parenting schedule. It is not clear if this standard would remain in effect if the new law passes. The proposed law would strike out and replace the current language in M.G.L. c. 208, s. 31, which provides, among other things:
An award of shared legal or physical custody shall not affect a parent’s responsibility for child support. An order of shared custody shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification.
Notably, the proposed law would appear to have little or no impact on custody for children of unmarried parents, whose rights are controlled by M.G.L. c. 209C, s. 10(a), which provides:
In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child. …. In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement … or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings … and have the ability to communicate and plan with each other concerning the child’s best interests. (Emphasis added.)
UPDATE (2/24/16): Sarah Morrison of Boston.com has posted a new article on the proposed law entitled, “‘I’m out of money, and I’m out of hope’: Rethinking custody battles“. The article focuses exclusively on the perspectives of the non-custodial parents who are unhappy with their current custody orders, and appears to make no effort to contact the opposing parties, or even examine the court papers from these individuals’ custody cases. Morrison also uncritically repeats the claim, made by Dr. Ned Holstein, that Massachusetts child support orders often “vastly exceeds what it costs to raise a child”. I would like to see the evidence that Holstein bases this statement on. Morrison seeks to offer some balance by offering the opinions of Attorney Alan Pranksy and Robert Mnookin, a professor at Harvard Law School, however, the “human story” is limited to the individuals lobbying the state for changes in the custody law.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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