One of the issues that the legislature was unable to agree on in the session that ended last weekend was “shared parenting.”
Everyone supports “shared parenting” in concept — kids benefit from having two parents who can collaborate. And it is much more common now for fathers to take a very active role in day-to-day child care.
The controversial issue is whether divorce law should be changed to mandate shared parenting in post-divorce parenting plans. In the waning days of the session, the House passed a bill taking a thoughtful step in that direction.
Current law makes the best interest of the child paramount and gives no specific guidance in defining parenting plans — agreements about where the child should live, go to school, etc. If parents cannot agree, a judge can issue whatever order seems to best protect the child, ordering any form of sharing or sole custody. Most would agree that the child’s welfare should be determinative.
The key sentence in current law is as follows:
In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.
The house-passed “shared parenting” legislation creates a new lead sentence that emphasizes the role of both parents:
The general court finds that every child in the commonwealth has the right to a safe, healthy and meaningful relationship with both parents, subject to the court’s determination of each child’s best interest, and encourages shared parental responsibilities.
Other language in the bill states that an allocation of residential responsibility may not be called “shared” unless it gives at least one third time to each parent. This definition creates a tilt towards these heavily shared arrangements. The bill subtly prioritizes shared parenting time in a number of other ways.
Whatever the legislature writes into statute will be attended to carefully by the judges who resolve thousands of contested divorce cases each year. Subtle language differences will have a huge impact.
The roughly 10% of cases that reach judges are the ones in which the parents could not reach an agreement on their own. So, the judge must balance the harm done by exposing the children to ongoing conflict and the complexities involved in multiple residences against the very real benefits of spending a balanced amount of time with each parent.
I have listened to many parents wounded by loss of contact with their children and I have also listened to the views of many practitioners in the family courts. I was not comfortable with the House’s draft, because I felt that it might create too strong a push toward complex sharing arrangements in high conflict situations where they may not be workable. If any changes are to be made in the statute, the changes should more explicitly acknowledge the need of children for a stable, safe and low-conflict living arrangement. The best interest of the child should always be the first consideration.
There is no consensus that the process as it works now is unfair to men or to women or that judges fail to appreciate the value of both parents. Nor is there consensus about what legislative changes could help in other ways — to streamline the process and reduce backlogs, to make it easier for people who can’t afford lawyers to navigate on their own, to create incentive for parents to be civil to each other.
There are enough people who are understandably unhappy with the outcome of their divorce case that the conversation about reform will inevitably continue and as one legislator, I will remain open to that conversation over the years to come.
I welcome online comments here, but given the delicacy of the topic, will also welcome correspondence by email as well at William.firstname.lastname@example.org.
- American Psychological Association’s Guidelines for Child Custody Evaluations in Family Law Proceedings
- A Judge’s Guide: Making Child-Centered Decisions in Custody Cases
- Massachusetts Case Law Around Best Interest of the Child: Custody of Kali, 439 Mass. 834 (2003) and AH v MP, 447 Mass. 828 (2006)
- Facilitator’s Report of the Working Group on Child-Centered Family Laws (which resulted in an earlier iteration of the bill)
- Massachusetts Probate and Family Court Resources Relative to Seeking an Initial Child Custody or Parenting Time Order
- Massachusetts Legal Services Resources Relative to Child Custody
- Information Resources Provided by the National Parents Organization (one of the bill’s major proponents)
- Massachusetts Trial Court Law Libraries: Massachusetts Law About Child Custody and Parenting Time
- Boston Globe article providing overview of hearing of Joint Committee on the Judiciary on an earlier iteration of the bill
- Stateline Overview of Proposed Changes to Custody Laws
Response of Representative John V. Fernandes, House Chair of the Joint Committee on the Judiciary to the August 1, 2016 post by Senator William Brownsberger, Senate Chair of the Joint Committee on the Judiciary regarding House H.4544 – An Act relative to child-centered family law.
In 2012, Governor Deval Patrick created a Working Group on Child Centered Family Laws to “review and recommend any necessary revisions to state laws to ensure that children’s rights and interests are prioritized and protected during and following court proceedings pertaining to parental decision-making, responsibility and caretaking.” The Group included members of several bar associations, psychologists, specialists in shared parenting, chief justices, parent’s rights groups, and advocates for domestic violence victims and community representatives. In 2014, a report was produced and sent to the Governor. The report was a compromise between the members of the working group with recommended revisions to G.L.c. 208 § 31, the statute that governs child custody and shared custody plans.
Over the last 10 months, Chairman Fernandes and Vice-Chairwoman Cronin met with members of the former working group, bar associations, family law practitioners, parent’s rights groups, advocates for domestic violence victims, members of the public, and probate court judges and court personnel on H.4544 – An Act relative to child-centered family law. The bill reflects careful consideration of all the comments and concerns raised about the previous drafts of the bill (H.1207 and H.4107), and addresses those comments and concerns in a fair and balanced manner.
In his Post, Senator Brownsberger wrote that:
“The best interest of the child should always be the first consideration.”
-Will Brownsberger, 8/1/16 Post
Subsection D of the House bill, which Senator Brownsberger criticizes as not being in the best interest of the child states that, “In determining parental responsibilities, both at the time of entry of orders and judgment, the court shall at all times be guided by the best interest of the child…” The “best interest of the child” is referenced 8 times in this House legislation. It is the policy around which the House bill is built. With the best interest of the child as the guiding principle, this legislation does the following:
- Provides that each child has a right to a safe and healthy relationship with both parents and that the legislature encourages shared parental responsibilities.
- Allows for shared parenting plans where one child’s period of residing with and being under the care and responsibility of each parent amounts to one-third or more of the parenting time. This legislation does not create a presumption of shared parenting or tilt towards favoring a one-third or more parenting time agreement.
- Includes a list of factors for the court to take into consideration when determining parental responsibilities that are overwhelmingly child-centered and address areas such as domestic violence (physical, emotional and psychological), sexual abuse, special needs of the child, parental substance abuse, domestic living conditions and sibling relationships.
- Requires parenting plans to be incorporated into every order, divorce judgment and any modified judgment involving parental responsibility for minor children.
- Guides unrepresented and low-income litigants with clear factors to present during proceedings and when developing a parenting plan.
This legislation gives guidance to parents, at the outset of proceedings, as to what the parents should be considering as part of a parenting plan that is in the best interest of their child. Senator Brownsberger and I came into the Legislature together and remain close friends. I have a great respect for his opinions on legislation and policy. However, it is one thing to posture a disagreement on policy but the Senator’s post picks of one sentence out of the House bill and characterizes the entire House bill as all about the parents and not the best interest of the child, and that is totally unfair and inaccurate reading of the House bill. The current law may in words encourage the best interest of the child, but we disagree that the law in practice has achieved that goal.
We encourage our senate counterparts to engage the debate, cite the specific weaknesses in the House bill, and offer alternatives that modernize our law and truly protect the rights of children to a shared relationship with their parents. We have five more months in this session to accomplish that goal.
Comment of Will Brownsberger on August 23, 2016
I want to thank everyone who has commented on this thread — especially Chairman Fernandez, Terry Brennan and Peter Van Oudenaren who have devoted considerable attention to providing thoughtful responses. The issues are deep and important and I fully intend to continue to give them continuing attention through this fall into next year.