SHARED PARENTING BILLS HAPPENED FEBRURAY 14th 2006.

 WHERE AND WHEN: Committee on The Judiciary Public Hearing to be held in Room B-1 at 1:00 P.M., Tuesday, February 14^th, Mass State House.

 A link is provided here for what is on:  http://www.mass.gov/legis/comm/dlfeb14.htm

 Senate, No. 841

Petition of Stephen M. Brewer, Brian Knuuttila, Todd M. Smola, Robert A. O'Leary, other members of the General Court and another for legislation to strengthen family relationships through responsible shared parenting.

Senate, No. 855

Petition of Scott P. Brown, Richard R. Tisei and Richard J. Ross for legislation relative to shared parenting.

Senate, No. 994

Petition of Brian P. Lees, Richard R. Tisei, Michael R. Knapik and Scott P. Brown for legislation relative to shared parenting.

Senate, No. 1042

Petition of Charles E. Shannon, Brian A. Joyce, Richard R. Tisei, Susan C. Fargo and other members of the General Court for legislation to improve the child support collection process.

House, No. 874

Petition of Lida E. Harkins and others relative to the garnishment of wages for child support and alimony.

 BERKSHIRE FATHERHOOD COALITION
 The fathers’ rights movement gained traction when a shared parenting question was on the ballot in over 30 districts and won an 86% marring of success statewide.

 The Berkshire Fatherhood Coalition, which wrote a super-strong ballot question won by 78%, two being in the most liberal districts in the Massachusetts. (The Berkshire 4^th [south Berkshire county] and the First Hampshire [includes city of Northampton]).  The other 3 districts were the Berkshire 1rst (north county, North Adams, Williamstown), Berkshire 2^nd (Lanesborough, Dalton, Cheshire, Richmond) and Berkshire 3^rd (Pittsfield).

 SHARED PARENTING BILLS BEFORE THE MASSACHUSETTS LEGISLATORS

 By way of comparison, CLICK HERE TO LOOK AT THE CURRENT LAW, Mass. Gen. L. c. 208 §31.  This provides the current custody law.

 YOU CAN CLICK ON THE BILL NUMBER TO GO TO THE FULL-TEXT OF THE BILL AT THE STATE HOUSE WEBSITE.

 That said, here are the bills, in no particular order:

House bill 919 is offered by a 15 legislatures, including Senator Andrea Nuciforo of Berkshire County.  Its chief sponsor is Rep. Gary of Dracut.

 

KEY PROVISIONS: “In making an order or judgment relative to the custody of a minor child, there shall be a presumption that, absent emergency conditions, or abuse or neglect of said child, the parents shall have shared legal custody and shared physical custody of said child.”

 

SUGGESTED TWEEKING: “In making an order or judgment relative to the custody of a minor child, there shall be a strong presumption that, absent emergency conditions, or abuse or neglect of said child shown by clear and convincing evidence, the parents shall have shared legal custody and shared physical custody of said child.” The standards are applicable by constitutional fiat in the parental termination cases, and would be of benefit here to.

 THE REVISED STATUTE UNDER H-919 WOULD READ AS FOLLOWS:

Original material is in black normal font “like this.”

Deleted material is in black strikethrough font “like this.”

Added material is in red AND underlined “like this.”

My commentary is in blue “like this.”

 Chapter 208: Section 31 Custody of children; shared custody plans

  Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

  ""Sole legal custody'', one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Shared legal custody'', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Sole physical custody'', a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

  ""Shared physical custody'', a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. [RINALDO’S NOTE: This leaves the old language in place, and unlike the next statue, does not clearly mean EQUAL TIME.]

  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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

  Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

  In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall 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.

  If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

  There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

In furtherance of the public policy that the happiness and welfare of children is enhanced by frequent and continuing contact with both their parents, upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine, the parents shall have temporary shared legal custody and shared physical custody of any minor child of the parties. In making an order or judgment relative to the custody of a minor child, there shall be a presumption that, absent emergency conditions, or abuse or neglect of said child, the parents shall have shared legal custody and shared physical custody of said child. [RINALDO’S NOTES: Here I would add that the words “strong” before presumption, and “after emergency conditions, or abuse or neglect of said child,” I would add “demonstrated by clear and convincing evidence.”] The judge may enter any order or judgment for sole legal custody for one parent and/or sole physical custody for one parent if written findings are made setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody. In making any order or judgment concerning the parenting schedule of each parent with a minor child, the rights of the parents, absent emergency, abuse, or neglect of one of the parents, shall be held to be equal, and the Court shall endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable. A change in the availability of one or both parents to parent a minor child, and/or a change in the developmental stage of a minor child, shall be presumed to constitute a material and substantial change in circumstances for the purposes of a complaint or counterclaim seeking to modify a parenting schedule or parenting plan incorporated into a judgment of divorce. Nothing herein shall be deemed to modify the provisions of G.L. c.208, sec. 31A  

 

At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

  At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and/or sole  physical custody award to either parent if written findings are made, setting forth the specific facts supporting a determination that the child would be harmed as a result of shared legal or shared physical custody. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child. The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.

   Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

  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.  If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.

[RINALDO NOTES: This is a good change and unfortunately does not accompany every bill.  Fathers who will be given joint physical custody obviously need the financial wherewithal to be able to support their children.] 

 The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent.

[RINALDO’S NOTES:  There are some statutes with regards to schools that seem to undo this provision in Mass. Gen. L. c. 208 §31 regarding access to academic records.  Despite the clear words of this statute that basically states that non-custodial parents have the same right to records as custodial parents, there is another statute, Mass. Gen. L. c. 71 §34H.  You can read this statute BY CLICKING HERE.  Under Mass. Gen. L. c. 208 §31, even if a father is violent he can still get the records minus the address—after, is there a danger knowing that his daughter Sue received a “below average” in spelling? Many a father has gone to schools asking for academic records per Mass. Gen. L. c.208 §31 (the divorce statute) only to have Mass. Gen. L. c. 71 §34H thrown back at the.  Mass. Gen. L. §34H states, “Each school shall also make reasonable efforts to ensure that other written information that is provided to the custodial parent but not specified in the preceding sentence be provided to the requesting parent if that parent is eligible for information pursuant to this section and requests the information in the manner set forth herein.” To be “eligible” “For purposes of this section, any parent who does not have physical custody of a child shall be eligible for the receipt of information pursuant to the procedures of this section unless said parent has been denied legal custody of the child based on a threat to the safety of the child or to the custodial parent, or who has been denied visitation, or who has been ordered to supervised visitation, or whose access to their child or to the custodial parent has been restricted by a temporary or permanent protective order unless said protective order, or any subsequent order which modifies said protective order, specifically allows access to the information described in this section.” Thus we have the first bar—not just addresses, but complete records. Well what is that “procedure” one must comply with under Mass. Gen. L. c. 71 §34H? Remember, THIS IS THE STUFF A NON-VIOLENT parent must go through, according to Mass. Gen. L. c. 71 §34H(b):  “A parent eligible for information pursuant to this section who wishes to have this information shall submit a written request to the school principal annually. The initial request shall include: a certified copy of the probate court's order or judgment relative to the custody of the child indicating that the requesting parent has not sought and been denied shared legal custody as defined in section 31 of chapter 208 based on a threat to the safety of the child or the custodial parent and is entitled to unsupervised visitation with his child, or a certified copy of an order by a probate and family court judge specifically ordering that this information be made available to the requesting parent which certifies on its face that it is being made after a review of the records, if any, of the judgment of custody and the criminal history of the petitioner, that provision of the requested information has not been determined to pose a safety risk for the custodial parent or to any child in the custodial parent's custody and that it is in the best interest of the child that such information be provided to the petitioner; and an affidavit from the requesting parent certifying that the judgment or order remains in effect and that no temporary or permanent protective order restricting access to the custodial parent or to any child in the custodial parent's custody is in effect.” This does not even go into all the stuff that has to be repeated year after year IN THE NEXT SECTION!  The preceding paragraph out to be changed to add, “Any provision in Mass. Gen. L. c. 71 §34H inconsistent with this shall not be binding, and as a matter of right, a parent will have the right to receive all academic records expunged of addresses.”]

  Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children. written findings are setting forth the specific facts supporting a determination that the child would be harmed as a result of implementation of the agreement.

[RINALDO’S NOTES: This is preferable langue—requiring the actual showing of harm.  To protect children, the presumption needs to be strong.]

*****

RINALDO’S GRADE: A-.  This is a very strong bill and clearly well thought.

1.I would improve it by making sure the presumption as “strong” and rebutted by “clear and convincing evidence.”

2.I would also amend it so that Mass. Gen. L. c. 71 §34H does not undo the rights afforded in this statute.

3.This language is good “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine.”  But the bill should also reference 209C to make sure it covers children born out of wedlock as well.

4.I would add alter the definition in H-919 of “shared custody” in H-834 which reads “Shared physical custody,” a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that parenting time shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.” We don’t want judges calling something “shared equal custody,” without REASONABLY EQUAL time. This should be re-introduced to this bill.

This approach is to entirely scraps the entire present 208 §31 statute and replace it with a new one. Rep. Mark J. Carron is the bills principle sponsor, a strong advocate of shared parenting. There are 13 legislatures sponsoring the bill. This bill is the Children’s Rights Council bill.

KEY PROVISIONS. “There shall be a rebutable presumption that shared legal and shared physical custody is in every child’s best interest.” Mar

HERE, DIFFERENT COLOR FONTS MERELY EMPHASIZE DIFFERENT PARTS—THIS IS AN ENTIRE SCRAPPING OF THE STATUTE AND REPLACING IT WITH A NEW ONE. Thus changing colors do NOT, NOT, NOT signify added or deleted words.

Here is the full bill of H-834:

“Chapter 208 of the General Laws IS HEREBY AMENDED BY STRIKING OUT SECTION 31, as appearing in the 1998 Official Edition as amended, and inserting in place thereof the following section:

Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:
              “Parenting Plan,” an implementation plan using a parenting plan format, setting forth the details of shared or sole legal and physical custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which the child shall reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.
               “Shared legal custody,” continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.                   “Shared physical custody,” a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that parenting time shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents. Factors to be considered in determining the specific periods of time each child shall reside with a parent shall include: a. the educational, medical, health, and social needs and activities of the child; b. the geographic location of each parent's residence and resulting proximity to the child's school, medical and health care, extracurricular activities and other such matters concerning the child; c.
            the child's age and well being especially as concerns spending an entire school vacation week and entire summer month with each parent, or alternative arrangements predicated upon the child's age and circumstances.
            “Parenting time,” shall refer to the time either parent physically spends with the child, regardless of custodial status.             “Sole legal custody,” one parent shall have the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.
            “Sole physical custody,” a child shall reside with and be under the supervision of one parent, subject to reasonable parenting time by the other parent, unless the court determines that such parenting time would not be in the best interest of the child.  
            There shall be a rebuttable presumption that shared legal and shared physical custody is in every child’s best interest. In making an order or judgment relative to the legal and physical custody of children, the rights of the parents, in the absence of misconduct or disinterest of a parent, are equal, and the best interests of the children shall determine their custody. When considering the best interests of the child, the court shall consider each parent's respective past, present, and future contribution to the health, welfare, well-being, raising, nurturing and loving of the child, and whether or not the child’s present or past living conditions positively or adversely affect his physical, mental, moral or emotional health, and which parent facilitates and encourages a close and continuing parental relationship between the child and the other parent.                          Upon the filing of an action in accordance with the provisions of this section, or section 28 of this chapter, or section 32 of chapter 209 and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal and temporary shared physical custody of each minor child of the parents; provided, however, that the judge may enter an order for temporary sole legal or sole physical custody for one parent if the court makes specific, written findings that such shared physical and legal custody would not be in the best interest of the child.               In determining whether temporary shared legal and temporary shared physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family has been the perpetrator of domestic violence, abuses alcohol or other drugs or has deserted the child.
              If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, or section 38 of chapter 209, or section 3 of chapter 209A, or section 10 of chapter 209C, and issues a temporary or permanent custody order which does not grant shared physical and legal custody, the court shall enter specific, written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.
                         If the issue of custody is contested and either party seeks sole legal or sole physical custody, the burden of proof, by clear and convincing evidence, shall be on the moving party that such a custodial arrangement would be in the best interest of the child and the court shall make specific, written findings to support any sole custody order. [Rinaldo’s notes: THE CLEAR AND CONVINCING STANDARD is very important, and an excellent provision.]
              The parties, jointly or individually, shall submit to the court at the custody hearing and trial or other disposition of the action, a Parenting Plan.
            The court shall review the parties' completed Parenting Plan as submitted and agreed upon by both parties, and shall enter an Order or Judgment substantially in accord therewith unless specific, written findings are made by the court indicating that such an Order or Judgment would not be in the best interests of the children.  
            In the event that a Parenting Plan cannot be agreed upon by the parties, the court may require that the parties engage in alternate dispute resolution in order to draft a Parenting Plan, which is in the best interest of the child. If after participating in alternate dispute resolution the parties remain unable to agree upon a Parenting Plan, the parties shall so notify the court, and the court shall thereupon make the determinations as to physical and legal custody of the children including that the court may but is not obligated to incorporate parts of one parent's or both parents' proposed Parenting Plan in its Orders and Judgment. A Parenting Plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate Orders including as regards the responsibility of the parties for the support of the child.

[RINALDO’S NOTE: Here I would add, “The failure to reach a shared parenting plan shall not rebut the presumption that shared legal and shared physical custody is in every child’s best interest.” Or, as with H-919 add, “The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.]

              The entry of an order of judgment relative to the custody of minor children shall not negate or impede the ability of either parent to have access to the academic, medical, hospital or other health records of the child; except, that if a court has issued an order prohibiting a parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such parent.”

 [Rinaldo’s Notes: Again there is the same problem with access to academic records.  See discussion of H-919 for a detailed discussion. Mass. Gen. L. c. 71 §34]

RINALDO’S GRADE: A+.  H-834 would hit perfection if it:

 

1.    Add language H-919, which reads, “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine.”  The bill should also reference 209C to make sure it covers children born out of wedlock as well.

2.    Made some provision about the lack of a shared parenting plan as not affecting the presumption of joint physical custody. Perhaps, as with H-919 add, “The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint physical and joint legal custody, nor affect the child's right and the parents' rights to frequent and continuing contact.]

3.    Addressed how Mass. Gen. L. c. 71 §34H undoes the provisions regarding school record access that are made in Mass. Gen. L. c. 208§31.

4.    Doe not contain confusing section about child support “not being affected.” Might want to add language in H-819, “If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”

This is one of the shorter and simpler bills.  It is support by Senators Brian P. Lees,, Richard R. Tisei, Michael R. Knapik and Scott P. Brown (chief sponsor is Sen. Lees). This bill has won the affection of the Fatherhood Coalition.  Senator Lees and Senators Knapik met have spoken at forums before the Fatherhood Coalition.  I have worked with Senator Lee’s office in the past.

THE REVISED STATUTE WOULD READ AS FOLLOWS:

Original material is in black normal font “like this.”

Deleted material is in black strikethrough font “like this.”

Added material is in red AND underlined “like this.”

My commentary is in blue “like this.”

Chapter 208: Section 31 Custody of children; shared custody plans

  Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

  ""Sole legal custody'', one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Shared legal custody'', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Sole physical custody'', a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

  ""Shared physical custody'', a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

[Rinaldo’s Notes: There should be more language stressing equality of time.   Perhaps the definition in H 834 could be use:      “Shared physical custody,” a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that parenting time shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.”]

  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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

  Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody. There shall be a presumption in favor of shared physical custody unless clear and convincing evidence is shown otherwise.”

  In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall 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.

  If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

  There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

  At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.  At the time of the trial on the merits, there shall be a rebuttable presumption in favor of shared legal and physical custody.

[Rinaldo’s Notes: Here I would make sure that “clear and convincing evidence” standard applies at the time of the trial on the merits just as in temporary orders.]

  At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

  Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

  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. [Rinaldo’s Notes: This should be omitted. Might want to add language in H-819, “If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”]

  The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. [Rinaldo’s Notes: Again, we have the same problem with academic records.]

  Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

RINALDO’S GRADE: B.

1.    Evidence at time of trial should be “clear and convincing evidence.”

2.    There needs to be language to make sure shared parenting means APPROXIMATELY EQUAL TIME as done in H-834.  Perhaps the definition in H 834 could be use: “Shared physical custody,” a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that parenting time shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.”

3.      Same problems with academic records as previous sections.

4.      Contains confusing section about child support “not being affected.” Might want to add language in H-819, “If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”

5.      There is no reference to make sure law applies to children out of wedlock, which is should. It should be made applicable to out-of-wedlock cases. As does H-919, it may want to read, “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine.”

The principle sponsor of this bill is Senator Scott Brown, who has been a long-term strong advocate of fathers’ rights.  Senator Brown was elected to the Senate about two years ago, after being a house representative.  He defeated Angus McQuilken (spelling?) who was Cheryl Jacques aid.  McQuilken didn’t support fathers’ rights.  He did not have the benefit, at that time, of knowing that shared parenting won the overwhelming support of the public.  This bill has the support of two other legislatures, and is similar (if not identical) to a former bill H-2656 from other years. 

 

KEY PROVISIONS: “Upon the filing of an action . . ., the parents shall have temporary shared legal custody and temporary shared physical custody of any minor child of the marriage; provided however, that the judge may enter an order for temporary sole legal and/or physical custody for one parent if, following an evidentiary hearing, the court found with clear and convincing evidence that such shared custody would seriously harm the child and written findings accordingly.” AND “At the time of the trial on the merits, there shall be a rebuttable presumption in favor of shared legal and physical custody.”

 

Senate Bill 855 changes Mass. Gen. L. c. 208 §31 to read as follows:

 

GENERAL PROVISIONS

Chapter 208: Section 31 Custody of children; shared custody plans

  Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

  ""Sole legal custody'', one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Shared legal custody'', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Sole physical custody'', a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

  ""Shared physical custody'', a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

 ¶6 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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

 Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

 In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall 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.

In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct that is harmful to the child, be held to be equal.Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter 209 and until a judgment on the merits is rendered, the parents shall have temporary shared legal custody and temporary shared physical custody of any minor child of the marriage; provided however, that the judge may enter an order for temporary sole legal and/or physical custody for one parent if, following an evidentiary hearing, the court found with clear and convincing evidence that such shared custody would seriously harm the child and written findings accordingly.

[RINALDO’S NOTES: I like the “seriously harm the child” language. I also like the inclusion of out-of-wedlock as in 209.]

 

  If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

  ¶10 There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

At the time of the trial on the merits, there shall be a rebuttable presumption in favor of shared legal and physical custody. 

[RINALDO’S NOTE: This portion should also erect a “clear and convincing” evidence standard.]

  At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

  At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

  Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

  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. [Rinaldo’s Notes: This is the same problem as before regarding child support.]

  The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. [Rinaldo’s notes: Same problem as before regarding academic records.]

  Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

Rinaldo’s GRADE on S. 855: B.

 

1.    There needs to be something to make sure that time with both parents is roughly equal.  Such as the language in H. 834:  “Shared physical custody,” a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that parenting time shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.”

2.     There is no “clear and convincing” evidence standard a trial.

3.     Still have troubling provisions regarding child support.

4.      Still have troubling problems with academic regards.

5.    As does H-919, it may want to read, “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine.” It should also provide a provision to make sure it applies to children out of wedlock.

This bill is sponsored by: Stephen M. Brewer, Brian Knuuttila, Todd M. Smola, Robert A. O'Leary,

 

This is another statute where the entire Mass. Gen. L. c. 208 §31 statue is scrapped and a new one replaced. The Children’s Rights Council champions this bill.

 

KEY DEFINITION: “Shared physical custody”, a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.  The child is not required to reside with each parent for an equal amount of time during any given period.”

 

KEY PROVISION: “There shall be a rebuttable presumption that shared legal and shared physical custody is in the child’s best interest.”

 

KEY PROVISION: “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.”

 

KEY PROVISION: “The entry of an order of judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as the non-custodial parent would have had if the custody order or judgment had not been entered.” (Rinaldo’s Notes: The problem is that there are statutes regarding academic school records which seem to conflict with this.  This paragraph, by the way, is already in the present statute.)

 

KEY PROVISION REGARDING CHILD SUPPORT: “ 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.”

 

RINALDO’S NOTES: This is identical to language already in Chapter 208, Section 31, but its meaning needs to be understood with respect to the guidelines. Under the present guidelines, in Section II, D. “Custody and Visitation,” it states, “These guidelines are based upon traditional custody and visitation arrangements. Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable. The guidelines are also not meant to apply for cases in which there is split physical custody, i.e., each parent has physical custody of one or more children.” Right now, child support may still be awarded with joint physical custody under Chapter 208 §31, but the guidelines make clear that you don’t use the guidelines.  Its just like the pre-guide line days, and judges do what they consider to be “in the best interest of the child.” 

 

It is the belief of the Berkshire Fatherhood Coalition that this language should be removed from 208 §31, and clearer ones entered. Such as, “When there is joint physical custody, there shall be no child support, unless there is disparity in the ability of the two parents to generate income by a factor of three-fold. In no event, however, shall child support amounts equal any more than ½ of than would have been applicable if there was sole physical custody.”

 

An alternative would be to simply remove, “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,” from the present and proposed statute, and state, “When there is shared physical custody of children, the Child Support Guidelines shall not be applicable.”

 

Another approach might to be use the language in H-919, which states, “Said section 31 is hereby further amended by striking the fourteenth paragraph and inserting in place thereof the following:- If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”

 

Awarding child support to one party when the other party is similarly situated probably wouldn’t survive equal protection claims of either the Massachusetts or Federal Constitution.  Perhaps part of the problem is a difference in public policy questions put forth. 

KEY PROVISION: “Where the parents have reached an agreement providing for the custody of the children, the court will enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.” ALSO A NEW DEFINITTION IS PROVIDED, “Parenting plan”, an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined.”

RINALDO’S NOTES: This seems to offer less interference and more respect for custody plans then under present legislation.

 

S-841, completely replaces the present Mass. Gen. L. c. 208 §31 to read:
AN ACT RELATIVE TO STRENGTHENING FAMILY RELATIONSHIPS THROUGH RESPONSIBLE SHARED PARENTING.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.

Chapter 208 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out section 31 and inserting in place thereof the following section: -

Section 31.  For purposes of this section, the following words shall have the following meanings unless the context requires otherwise: 

“Parenting plan”, an implementation plan using the standardized parenting plan format, as approved by the chief justice of the probate and family courts, which shall include, setting forth the details of shared physical custody including, but not limited to, the child’s education; the child’s health care; procedures for resolving disputes between the parties with respect to child-raising and duties; and the periods of time during which each party will have the child reside with each parent, including holidays and vacations, or the procedure by which such periods of time shall be determined. “Shared legal custody”, continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development.

“Shared physical custody”, a child shall reside equally with and be under the supervision of each parent for specified periods of time; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.  The child is not required to reside with each parent for an equal amount of time during any given period.

 “Sole legal custody”, one parent shall have the right and responsibility to make major decisions regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development.

“Sole physical custody”, a child shall reside with and be under the supervision of one parent, subject to reasonable visitation time by the other parent, unless the court determines that such visitation time would not be in the best interest of the child.

There shall be a rebuttable presumption that shared legal and shared physical custody is in the child’s best interest. 

(RINALDO’S NOTES: There should be a “clear and convincing evidence” standard.) In making an order of 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 custody.  When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect the physical, mental, moral or emotional health of the child, and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.  The court shall further consider the capacity and disposition of each parent to comply with the terms of the parenting plan.

(Rinaldo’s Notes: This is dangerous territory.  Language considering “disposition” may allow the mother to simply not be agreeable, a common tactic employed today to thwart shared parenting. I would remove the last sentence.)

Upon the filing of an action in accordance with the provisions of this section, section 28 of this chapter, or section 32 of chapter 209 and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal and temporary shared physical custody of any minor child of the parents, but the judge may enter an order for temporary sole legal or sole physical custody for one parent if written findings are made that such shared custody would not be in the best interest of the child.

           

In determining whether temporary shared legal or temporary shared physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family has been the perpetrator of domestic violence, abuses alcohol or other drugs or has deserted the child.

           

If the court finds evidence of abuse, neglect or domestic violence as defined by section 31A of chapter 208, section 38 of chapter 209, section 3 of chapter 209A, or section 10 of chapter 209C and issues a temporary or permanent custody order which does not grant shared physical custody, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best interests and provides for the safety and well-being of the child.

           

If the issue of custody is contested and either part seeks sole legal or physical custody, the burden of proof shall be on the moving party that such a custodial arrangement would be in the best interest of the child and the court shall provide written findings to support such a sole custody order.

(Rinaldo’s notes: Again, add “clear and convincing” standard.)

The parties, jointly or individually, shall submit to the court at the custody hearing or trial a parenting plan.  The court shall accept a completed parenting plan submitted and agreed upon by both parties, in the event that a parenting cannot be agreed upon by the parties, the court may issue a parenting plan modifying a plan submitted by the parties.  A parenting plan issued or accepted by the court shall become part of the judgment in the action together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

(Rinaldo’s Notes: Again, need to add a sentence that not having a shared parenting plan will not affect presumption of joint physical custody.)

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.

(Rinaldo’s notes: For reasons previous discussed, this paragraph should be omitted.)

The entry of an order of judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as the non-custodial parent would have had if the custody order or judgment had not been entered; except, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent.

(Rinaldo’s Notes: Again, this has the same problems as previously discussed.) Where the parents have reached an agreement providing for the custody of the children, the court will enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

Rinaldo’s Grade: B+.

1.      Needs to do away with paragraphs about child support.
2.      Needs (as all do) to address problem about academic records.
3.      Burden to undo shared parenting should be “clear and convincing” evidence.
4.      As all, should make it clear it applies to children out of wedlock, and other sections. As does H-919, it may want to read, “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine.”

This is a bill by Rep Ellen Story of Amherst, 3^rd Hampshire.  There are no other co-sponsors.  It is generally regarded as a fake shared parenting bill.  H-707 would change Mass. Gen. L. c. 208 §31 to read:

Chapter 208: Section 31 Custody of children; shared custody plans

  Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

  ""Sole legal custody'', one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Shared legal custody'', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Sole physical custody'', a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

  ""Shared physical custody'', a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

¶6  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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health. “When considering the happiness and welfare of the child, the court shall consider the extent to which each parent has contributed to the happiness and welfare of the child and to the physical, mental, moral, and emotional health of the child.  Except as provided for in section 31A, if the court determines that the happiness and welfare of the child can be provided for equally by the awarding of sole custody or shared custody, the court should order shared custody, provided that the court is satisfied that both parents are capable of participating in shared custody cooperatively and respectfully with the other parent.”

  Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

  In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall 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.

  If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

  There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

  At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

¶12  At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court shall consider the extent to which said shared custody plans preserve the contributions made by each parent to the physical, mental, moral, and emotional health of the child.  The court shall consider the extent to which said shared custody plans reflect the capacity of each parent to contribute to the happiness and welfare of the child, cooperatively and respectfully with the other parent.  The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court should accept shared custody implementation plans that preserve the parental contributions and reflect the capacities for cooperative and respectful shared parenting, as set forth above.  The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

[Rinaldo’s Notes: This is a thinly disguised effort to keep the current “primary caregiver” argument into law, to defeat shared parenting. There is no presumption of equal time, and it is a clear assault on breadwinners.  Moreover, historically, courts have underestimated contributions made by fathers to domestic situations, and have over exaggerated the role of women, who usually work. Knowing there was overwhelming success at the ballot box (86% margin of victory), this is a plain effort to circumvent the will of the people.]

  Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

  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. (Rinaldo’s Notes; Same problem as before.)

  The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. (Rinaldo’s Notes: Same problem as before.)

  Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

Rinaldo Grade: F. Plus an “unsatisfactory” for behavior.  This is a sham piece of legislation designed to appear as “shared parenting.”

This bill is sponsored by Rep. Phillip Travis.  It has no other sponsors. This bill has the support of the Fatherhood Coalition (differs from “The Berkshire Fatherhood Coalition.”)

Chapter 208: Section 31 Custody of children; shared custody plans

  Section 31. For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

  ""Sole legal custody'', one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Shared legal custody'', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

  ""Sole physical custody'', a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

¶5  ""Shared physical custody'', a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

  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. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

  Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have temporary shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary sole legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child. Nothing herein shall be construed to create any presumption of temporary shared physical custody.

  In determining whether temporary shared legal custody would not be in the best interest of the child, the court shall 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.

  If, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order.

  There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A.

  At the trial on the merits, if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

¶12  At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child.

To ensure minor children of frequent and continuing contact and a meaningful relationship with both parents after the parents have separated and divorced, it becomes necessary to encourage parents to share in the rights and responsibilities of child care and rearing. Primary considerations in awarding custody shall be given to both parents jointly in order to secure the best interest of the children by providing continuation of parent-child relationships. It is therefore the presumption of the courts that in most cases shared custody should be considered paramount to ensure the happiness and welfare of the children.
            In all separation and divorce proceedings involving minor children, it shall be a presumption of the court that both parents have an inalienable right to share temporary and final legal as well as physical custody of the children unless one or both parents (1) are proven to be unfit to such an extent and in such a manner as to cause immediate physical or emotional danger or damage to the children, (2) abandon the children, or (3) voluntary relinquish custody. An agreement signed by both parents defining the shared arrangements shall be the order of the courts, provided the parents have been apprised of their custody rights or unless clear and convincing findings indicate that such an order would not be in the best interest of their children.           Only after the parents have attempted and failed to reach an agreement on the shared living arrangements of the children shall the court determine the shared arrangements. The children shall also have the right to reside and spend an equal amount of time with each parent, provided this sharing arrangement does not interfere nor disrupt the school term. If equal time is neither practical nor possible, the right of one parent to a minimum guaranteed amount of time per year with the children shall be established and protected by the courts.

  Provisions regarding shared custody contained in an agreement executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a shared custody implementation plan for purposes of this section.

  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. (Rinaldo’s Notes: This has the same problems as others.)

  The entry of an order or judgment relative to the custody of minor children shall not negate or impede the ability of the non-custodial parent to have access to the academic, medical, hospital or other health records of the child, as he would have had if the custody order or judgment had not been entered; provided, however, that if a court has issued an order to vacate against the non-custodial parent or an order prohibiting the non-custodial parent from imposing any restraint upon the personal liberty of the other parent or if nondisclosure of the present or prior address of the child or a party is necessary to ensure the health, safety or welfare of such child or party, the court may order that any part of such record pertaining to such address shall not be disclosed to such non-custodial parent. (Rinaldo’s Notes: This has the same problems as others.)

  Where the parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children.

RINALDO’S GRADE. A. Would be A+ if it:

1. Made presumption only rebutable by clear and convincing evidence.
2. Addressed the same issue with the offending child support paragraph. Might want to add language in H-819, “If shared physical custody is ordered, the judge shall at that time make a child support order, or revise its previous order, as appropriate to the circumstances.”
3. Addressed the same problem with academic records is there was with all.
4. Made sure statute applies to out-of-wedlock case. Also, may want to add language as in House Bill 919: “upon the filing of an action in accordance with the provisions of this section, section twenty eight of this chapter, or section thirty-two of chapter two hundred and nine,
5. Although fairly clear, could be crystal clear that failure to reach a shared parenting plan will not effect child custody.