How does Massachusetts emphasize the child’s happiness and welfare and parental responsibility?

There is no shared physical custody presumption in Massachusetts. Massachusetts General Laws say specifically that there is no presumption of temporary shared physical custody or of shared physical custody in a final judgment. The General Laws also say that there is no presumption of shared legal custody when the court makes a final judgment on custody.[1]

What the General Laws do say about custody is:

1.    In making a custody order or judgment, the rights of the parents, in the absence of misconduct, are equal.[MR 1] 

2.    Courts must decide custody based on the “happiness and welfare of the children.”

3.    When deciding custody, the courts must consider whether the children’s past or present living conditions adversely affect their “physical, mental, moral, or emotional health.”

4.    Until the court makes a final judgment, absent emergency conditions, abuse, or neglect, the parents shall have temporary shared legal custody,

5.    But the court can make a sole legal custody order if it makes written findings that shared legal custody would not be in the child’s best interest.

6.    In deciding whether temporary shared legal custody would not be in the child’s best interest, the court must “consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.”

7.    If despite the existence of a prior or current Chapter 209A restraining order, the court orders shared legal or physical custody either as a temporary order or as a final judgment, except as provided in the domestic violence custody presumption law[2], the court must make written findings to support its shared custody order.

8.    When the case comes up for trial for a final judgment, if either party seeks shared legal or physical custody, the parents, jointly or individually, must submit to the court a shared custody implementation plan that includes the details of shared custody including, but not limited to:

·      The child’s education

·      The child’s heath care

·      Procedures for resolving disputes about child-raising decisions and duties

·      Parenting time

In Massachusetts, children’s best interest, happiness, and welfare are emphasized; parental rights are not. For example in Carr v. Carr, 691 N.E. 2d 963 (Mass. App. Ct. 1998), the Massachusetts Appeals Court rejected the argument that a child’s best interest must be based on “the least intrusive interference with parental rights.”[3] In Mason v. Coleman, 850 N.E. 2d 513 (Mass. 2006), the Massachusetts Supreme Judicial Court upheld a trial court decision denying a mother’s request to move out of Massachusetts in a situation where the parents shared physical custody. The SJC said that a parent who has been awarded joint physical custody must be willing “to subordinate personal preferences to make the relationship work.”[4]

 

[1] General Laws, Chapter 208, section 31.

[2] General Laws Chapter 208, section 31A.

[3] Cited by Maritza Karmely, Presumption Law In Action: Why States Should Not Be Seduced Into Adopting a Joint Custody Presumption, 30 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 321, 347 (2016).

[4] Cited by Karmely at page 349.

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.