A Push for Custody Reform in Massachusetts

Serving Families Throughout Palm Beach Gardens

As unlikely as it may seem, the Massachusetts State House hearing room has become a place for grown men to bare their souls.  Urging Massachusetts lawmakers to support legislation to revamp the state’s child-custody statute, father after father laid out the details of their personal lives and divorce for the committee.  We may soon see this scene repeat itself in state houses across the country, as 20 states are currently debating measures that will call for more equal custody arrangements for parents following separation and divorce.

Over a majority of the last 150 years, the “tender years” doctrine has been used to solve child custody disputes (under judicial presumption it was in a child’s best interest to be placed with their mother).  In the late 1970’s, joint custody became the norm in the United States; Florida courts have specifically rejected the use of the tender years doctrine in child custody determinations.  Cherradi v. Lavoie, 662 So. 2d 751 (Fla. 4th DCA 1995) (“The tender years doctrine is not a relevant fact, but an impermissible gender-based preference favoring the mother as custodian of a young child.”).   Although joint custody remains today, it has proven under some circumstances to be problematic for all parties involved as they try to determine what joint custody actually means.

Battles over child custody and child support are not something new for the family law system, but over the last 25 years parenting norms have shifted.  Today over 70% of mothers work outside of the home, and fathers are more engaged in child care. Due to these factors, lawmakers have become more willing to consider that long-standing child custody statutes may need to be reviewed.  Fathers were once only expected to be helpers in marriage, but now they are called on to be an equal parenting partners.

The fight to change Massachusetts custody law began in 2012 when Governor Deval Patrick formed a 20 person committee to examine the state’s child-centered family laws.  The committee, made up of lawmakers, psychologists, and other professionals, concluded that shared parenting serves the best interest of the children and allows them to better adjust during their parent’s divorce.  The result of this committee was Senate Bill 834.

The proposed legislation implores the court to grant shared custody where a child spends no less than one-third of their time with each parent.  The legislation establishes sanctions for parents who do not comply with court-ordered parenting plans

Supporters of the revamped legislation believe that changes are long overdue and will shorten divorce proceedings and minimize custody battles.  They argue that children in divorced families benefit from spending sufficient time with both parents.   As a study earlier this year in the Journal of Epidemiology and Community Health shows, “children living in joint-physical custody arrangements exhibited fewer psychosomatic issues than those living with just one parent.”

However, proponents of the new law argue that not all parents are able to make shared custody agreements work.  Past chair of the American Bar Association’s family law section, Linda Elrod, has said “One size doesn’t fit all, there has got to be a safeguard for the best interest of the child.”  Some proponents argue that shared parenting gives more power to abusive parents, takes discretion away from judges, and will prove to be detrimental in the long run as it focuses on parental rights and not children’s interests.

In order to take effect, the proposed legislation will have to clear both the House and the Senate.  Lawmakers have remained noncommittal, but the group of fathers who testified at the State House believe they are on the brink of winning.

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John Schutz

John Schutz

Partner at John F. Schutz, P.L.

Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.

John Schutz

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