When Shared Physical Custody is not Appropriate

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When Shared Physical Custody is not Appropriate


Massachusetts custody lawyer Nicole K. Levy analyzes a recent Appeals Court case identifying parental behaviors that make shared physical custody of children inappropriate.

There seems to be broad agreement that shared physical custody arrangements are becoming more common in Massachusetts. There are many factors underlying the trend, from an increase in dual-income households, to a strengthening father’s rights movement, to an increase in presumptive shared custody laws in states nationwide. There also appears to be broad agreement that children benefit from parenting plans that include meaningful parenting time with both parents. There can be a dark side to the increase in shared parenting plans, however. In cases where parents are unable to communicate – or where one party is clearly an inferior parent – the increased prevalence of shared custody can over expose children to conflict, bad parenting and even abuse or neglect.

Temporary Orders for Shared Physical Custody

It is common for Massachusetts Probate and Family Court judges to enter temporary orders in child custody cases in which parties cannot agree on a custody and parenting arrangement. Such orders are exactly as they are named: temporary. The purpose of temporary orders is to provide stability and orderly parenting time for children while the custody case is pending. Temporary orders also represent a valuable “test run” for parents; they are an opportunity for parties to test a parenting schedule and determine what works and what does not. In many cases, a temporary order for custody becomes incorporated into a final judgment, becoming permanent.

A decade ago, many Massachusetts courts seemed to make temporary orders for custody based on preconceived gender roles. Most mothers were the primary caregivers for children prior to a divorce or separation, the thinking went, so primary custody should be temporarily granted to the mother in most custody cases. With the increasing prevalence of shared parenting schedules, the bias favoring primary custody to mothers has decreased in recent years. Fathers who served a secondary parental role before the parents separated are increasingly receiving equal or nearly equal parenting time after the separation. In most cases, both parents demonstrate an ability to provide adequate care for a child or children. But not every case.

When Shared Physical Custody is a Bad Idea: Gervais v. Dunn

A 2016 case, Gervais v. Dunn, provides a window into a case where a temporary order for shared physical custody did not work out. The trial was originally heard by Essex Probate and Family Court judge, Hon. Peter C. DiGangi, who issued a decision in 2015 in which he awarded sole physical custody of the parties’ child to the mother. The father appealed.

In Gervais, parties were never married, and the father filed a complaint regarding custody, support, and parenting time. Early in the case, the parties entered a stipulation for temporary orders which provided for shared legal custody and shared physical custody of the child, pending the entry of a guardian ad litem (“GAL”) report. The judge relied on the GAL report in finding that the father’s conduct made shared physical custody inappropriate:

As to the father, the judge found that he had acted irresponsibly in the past and continued to be irresponsible. He poured gasoline on fires despite a serious accident and injuries therefrom in 2010, drove with the child in the front seat, posted her “likeness” on a Web site seeking public contributions toward his legal bills, failed to contribute to the child’s kindergarten costs, used drugs, and inaccurately reported his financial and tax information. The judge also found that the father’s extreme anger, volatile temper, constant irresponsibility, and drug use have continued and were likely to continue into the future. The judge found that when in the father’s care, the child was at risk of being isolated from anybody who could protect her from his behaviors.

In addition his volatile temper, drug use and erratic behavior, the Court focused noted how the father sought to control the child at the mother’s expense:

The judge also found that the father attempts to control every aspect of the child’s life to the exclusion of the mother, arguing with the mother regarding (1) haircuts and painted fingernails, (2) where the child should attend school, and (3) whether the child should be allowed to go to counseling and who the counselor should be. He also changed doctor’s appointments without notifying the mother, and changed contact information from the mother to the father.

The judge found that the father was unable to work with the mother and that it was extremely unlikely that the parties could co-parent together. He concluded that the continuation of the temporary arrangement of having the child alternate houses each week would not be conducive to her well-being and that it would be in her best interest to be raised in the same house as her sister and to have the mother as her primary physical and sole legal custodian.

Massachusetts custody attorneys - bad parenting

In Gervais v. Dunn, the Appeals Court provides several examples of bad parenting.

Parental Behavior: How Judges Analyze the Behavior of Parents in Shared Physical Custody Cases

Of particular interest is the trial judge’s emphasis on a wide range of behaviors by the father, from extreme to relatively minor. The decision illustrates how parental behaviors that might appear minor, when examined individually, can have an impact when viewed as part of a broader pattern. In Gervais, the decision certainly recounts the type of behaviors that are widely associated with bad parenting. For example, the father used drugs, poured gasoline on fires, causing injuries, drove with the young child in the front seat, and sought public contributions toward his legal bills by posting the mother’s “likeness” on a website. The court noted that father had anger issues and a volatile temper which placed the child at risk.

The decision was not based solely on the father’s risky behavior, however. The judge also found that the father had failed to contribute to the child’s kindergarten costs and inaccurately reported his financial and tax information. The court found he was controlling and argumentative with the mother about haircuts, painted fingernails, school enrollment, and the child’s counseling. The father changed medical appointments and contact information without notifying the mother. In short, even if some of the father’s riskier behaviors could be justified as a form of extreme free-range parenting, the hostility and controlling behavior that the father exhibited towards the mother suggested that much of the father’s conduct was motivated by anger.

Shared Physical Custody: Only Appropriate for Parents who can Work Together

Notably, the father argued that there was no connection between the father’s anger to his ability to share physical custody of the child. However, the judge relied on Smith v. McDonald (2010) which states that the best interests of a child are interwoven with the well-being of the custodial parent. In Smith, the Appeals Court noted that “the best interests of a child are … interwoven with the well-being of the custodial parent.” Applying this logic to the present case, the Gervais Court noted that “there was ample evidence, including in the guardian ad litem’s report, of ‘the intensely negative impact [the father’s] anger’ had on the mother.” Such negativity, the Court suggests, trickles down from the affected parent to the child.

Ultimately, the Court held that the mother should be primary physical custody of the child based on the following legal maxim:

Joint custody is inappropriate for parents whose relationship to date has been dysfunctional, virtually nonexistent, and one of continuous conflict. Here, the judge found that it is extremely unlikely that [the parties] can co-parent together. …. The father argues that the judge erred in determining that the temporary alternating week arrangement could not successfully continue. However, the guardian ad litem questioned whether “[g]iven the parties’ inability to communicate, . . . shared physical custody can/should be continued at all.” The judge found that the father could not control his anger and his temper and that the child should not be raised in a house where anger was so prevalent. The father argues that the judge did not connect the father’s anger to his ability to share physical custody of the child. However, it is well settled that the the best interests of a child are … interwoven with the well-being of the custodial parent. Here, there was ample evidence, including in the guardian ad litem’s report, of “the intensely negative impact [the father’s] anger” had on the mother. (Citations omitted.)

The case demonstrates how even parental behaviors that could be considered minor, such as arguing over haircuts, are considered in a judge’s custody determination. Clearly, driving with a young child in the front seat or pouring gasoline on an active fire poses a safety risk to a child. However, an inexperienced parent might engage in such behaviors out of ignorance or free-spiritedness. While such behaviors demonstrate poor judgment, what they don’t necessarily demonstrate is hostile intent. In contrast, arguing over haircuts and unilaterally canceling medical appointments poses little direct risk to a child, but judges often rely on these more “minor” behaviors as indicia of anger, bad faith or hostility towards the other party. (In some custody cases, conduct that demonstrates overt hostility towards the opposing party may outweigh evidence of neglectful parenting. However, the emphasis often varies widely from judge to judge.)

Lastly, the case illustrates the challenges parties face in modifying temporary orders. One might think that the type of conduct engaged in by the father in this case would have provided the mother with a basis for modifying the temporary parenting schedule in advance of trial. The fact that the mother was able to overcome the temporary orders following trial demonstrates that the system can be responsive to bad parental behavior. By the same token, the fact that the mother was required to expend the time, money and stress on a trial to achieve such a seemingly obvious result illustrates the many challenges that parties face in overcoming a “bad” temporary order or agreement.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

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About the Author:

Nicole K. Levy is a Senior Associate Attorney, Mediation Coach and Divorce Mediator at Lynch & Owens and South Shore Divorce Mediation. She is a frequent contributor to the Lynch & Owens SSDM Blogs on subjects including Massachusetts divorce, child custody and support, Department of Children and Families matters, and financial probate and family litigation. Attorney Levy can be reached by phone at (781) 741-5000 or email at [email protected], or visit her bio page under https://lynchowens.com/attorneys/.