NISSENBAUM’S STANDARD SET OF
SUMMARIES OF LAW - DIVORCE
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7.1 Massachusetts law (Chapter 208, Section 31) provides that in making an order relating to the temporary or final "possession" 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 or possession.
7.2 In making a decision about legal or physical custody, c. 208, § 31 provides that a judge may consider "whether or not the child's present or past living conditions adversely affects his physical, mental, moral or emotional health."
7.3 As a practical matter, beyond factors stated in c. 208, § 31, judges may also consider:
(1) the age of the child and the parties;
(2) the physical and emotional health and needs of or danger to the child, in the past, now and in the future;
(3) the physical and emotional health of the parties;
(4) the school performance, special interests and activities of the child;
(5) the ability of each party to foster the growth and development of the child;
(6) the ability of each party to provide continuity and stability of environment;
(7) the relationship and attachments of the child to the parties, the parents, siblings and any other person who may have a significant effect upon the child;
(8) the ability of each party to cooperate with those persons to whom the child has such a relationship and attachments and to provide them access to the child;
(9) the acts or omissions of each parent which may indicate the nature of the existing parent-child relationship;
(10) any excuse, justification or reason for acts or omissions of the parents;
(11) the expressed preferences of the child, provided that the court has found such child to be of sufficient age and understanding to express such a preference;
(12) the motivation of the parties seeking custody
(13) the length of time the child has resided in a party's environment;
(14) the employment of each party;
(15) the financial or emotional support of the child - past, present and future;
(16) the amount of time spent away from the home by each party, the adequacy of child care arrangements and the programs available to assist the parties to promote the best interests of the child;
(17) the geographical accessibility of persons to whom the child has a significant relationship and attachment; and
(18) any other factor which the court considers of relevance to its determination of custody.
7.4 The case law discloses that in a custody or visitation case, subject to the rules of evidence, a judge will listen to testimony so that the court can make a decision that is in the child's best interests.
7.5 a. G. L. c. 209B governs any proceeding in which a custody dispute is presented for resolution. MacDougall v. Acres, 427 Mass. 363, 366 (1998), and cases cited.
b. The trial court determines if it has jurisdiction in a custody proceeding and, if so, whether it should exercise that power. Custody of Brandon, 407 Mass. 1, 5-6 (1990).
7.6 The rights of the parties to custody of minor children are equal in the absence of misconduct, and the welfare and happiness of the children are the determining criteria. M.G.L. c. 208, Section 31. Bouchard v. Bouchard, 12 Mass. App. Ct. 899 (1981).
7.7 "[I]n deciding issues involving custody, the overriding concern of the court must be the promotion of the best interests of the children and their general welfare." Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981), (citing Hersey v. Hersey, 271 Mass. 545, 555 (1930); Heard v. Heard, 323 Mass. 357, 375-377 (1948); Clifford v. Clifford, 354 Mass. 545, 548 (1968)).
7.8 "It is the duty of the judge to consider the welfare of the child[ren] in reference not merely to the present, but also to the probably future, and it is a subject peculiarly within the discretion of the judge." Rolde v. Rolde, 12 Mass. App. Ct. 398, 403 (1981), citing Jenkins v. Jenkins, 304 Mass. 248, 250 (1939)).
7.9 "[I]n order for joint custody or shared custody to work, both parents must be able mutually "to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children." The best interests principle requires that the narrow focus be on the interests of the child. "[P]arents [too often] cannot be relied upon to assert the best interests of the child[ren] adequately because of their conflicting economic and psychological stakes in the outcome." Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981) (quoting Developments in the Law, The Constitution and the Family, 93 Harv. I. Rev. 1156, 1222-1345 (1980)).
7.10 "Joint custody is synonymous with joint decision making and a common desire to promote the children's best interests." Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981).
7.11 "It is understandable, therefore that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." " Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981), citing Braiman v. Braiman, 44 N.Y.S. 584, 589-590 (1978) "and where their respective concepts of child rearing are equally commensurate with the children's best interests. Children are entitled to the love, companionship and concern of both parents, and they usually are better off if their parents can agree to share in the responsibility of their rearing as well as physical custody." Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981).
7.12 "[I]n order to be effective "joint custody requires two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions." " Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981) (footnote omitted) (quoting Taussig & Carpenter, Joint Custody, 56 N.D.L. Rev. 223, 234 (1980)).
7.13 a. Various factors will be considered by the trial court in making its determination on joint custody in divorce proceedings, including fitness of parents, ability of the spouses to cooperate in guiding their children to adulthood, age of the child, distance between houses of the parents, frequency of transfer and proportion of each parents' custodial time. Lumbra v. Lumbra, 136 VT 529, 394 A.2d 1139 (1978).
b. Based upon the evidence, a judge can ascribe an abject breakdown in communication between the parties to one of the parents. Rosenberg v. Merida, 428 Mass. 428 Mass. 182, 191 (1998), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
c. "The misconduct of the parent may adversely affect the welfare of the child." Murphy v. Murphy, 380 Mass. 454, 462 (1980), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
7.14 Frequent changes between parents' households "are inherently disruptive...A roughly equal division of physical custody is potentially more confusing to the child than a less balanced proportioning." Lumbra v. Lumbra, 136 VT 529, 394 A.2d 1139 (1978). citing Mayer v. Mayer, 150 N.J. Super 556, 567, 376 A. 2d 214, 220 (1977).
7.15 "[T]he "best interests" of the child are to be promoted, and when the parents are at odds, the attainment of that purpose may involve some limitation of the liberties of one or other of the parents." Felton v. Felton, 383 Mass. 232, 233 (1981) (citations omitted).
Mandatory Considerations where there is evidence of abuse.
7.16 General Laws c. 208, § 31A, c. 209, § 38, and. c. 209C, § 10 require the Probate and Family Court judge to "consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child" when issuing any temporary or permanent custody order.
7.17 Statute codified requirements expressed by the Supreme Judicial Court in Custody of Vaughn, 422 Mass. 590, 599-600 (1996).
7.18 A finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred, creates "a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent." General Laws c. 208, § 31A, c. 209.
7.19 General Laws c. 208, § 31A, c. 209 defines abuse as "the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury." A "serious incident of abuse" is defined as "(a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress."
7.20 Under the statutory scheme, the definition of "bodily injury" has the same meaning as provided in G. L. c. 265, § 13K, which defines bodily injury as "substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin." G. L. c. 208, § 31A.
7.21 Upon making a finding that a pattern or serious incident of abuse has occurred, the court is required to make written findings of fact within ninety days as to the effects of the abuse on the child. G. L. c. 208, § 31A.
7.22 Such findings must demonstrate that the temporary or permanent custody order "is in the furtherance of the child's best interests and provides for the safety and well-being of the child." G. L. c. 208, § 31A.
7.23 G. L. c. 208, § 31A states that if visitation is ordered to the abusive parent, "the court shall provide for the safety and well-being of the child and the safety of the abused parent."
7.24 G. L. c. 208, § 31A identifies nine possible orders that the court may consider in order to achieve the statute's objective of providing "for the safety and well-being of the child and the safety of the abused parent."
(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;
(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation;
(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
(e) ordering the abusive parent to pay the costs of supervised visitation;
(f) prohibiting overnight visitation;
(g) requiring a bond from the abusive parent for the return and safety of the child;
(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent."
7.25 G. L. c. 208, § 31A’s requirements apply even in cases where the judge does not award custody to the abusive partner. Quirion, Increased Protection for Children From Violent Homes, 16 Mass. Fam. L.J. 67, 71 & 77 n.51 (1998) (discussing legislative history of statute which demonstrates intent of Legislature that statute apply regardless of who is awarded custody).
7.26 When there is evidence that a party was abusive by a party, the court may require that party to attend, participate in and complete a certified batterer's treatment program. See G. L. c. 208, § 31A. Cf. Custody of Vaughn, 422 Mass. 590 (1996).
7.27 "Domestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication." In Custody of Vaughn, 422 Mass. 590, 599 (1996), cited with approval in Maalouf v. Saliba, 54 Mass. App. Ct. 547 (2002).
7.28 The court must make specific findings which comply with G. L. c. 208, § 31A. Maalouf v. Saliba, 54 Mass. App. Ct. 547 (2002). (case remanded for the making of findings which satisfy c. 208, § 31A).