Years ago, the "Tender Years" Doctrine assumed that the mother was presumed to be the better parent for children under the age of six. Today, the law governing the custodial interests of parents as to their unemancipated children is construed in a gender-neutral manner.
Interestingly enough, parents possess a fundamental liberty interest, protected by the 14th Amendment, to be free from unnecessary governmental intrusion in the raising of their children. Upon divorce, however, when parents cannot agree, that's when the court can justify its imposition. Quite often, the Judge may order a Guardian Ad Litem investigation to assist the court in determining the best interest of the child. If you sense there may be a custody battle, contact us or read about how to prepare your case for custody.
While Judges, lawyers and even divorce litigants speak of a parent's "right" to custody, this is misleading. It's more accurate to refer to a parent's "interest" in raising a child rather than their "right." After all, in Massachusetts the focus will always be on the welfare of a child rather than on the rights of his or her parents. This is a hard concept for many parents to understand. Especially when heightened emotions (like those in a divorce) come into play, litigants find themselves doing things that they may think they have a right to do, but actually hurt them because their actions are viewed as being disingenuous. Just to be safe, you should read about custody risk factors.
To learn more, go to our quick link on custody/visitation. If you're concerned about changing a custody order, go here.
A putative father is either asserting paternity or contesting his parentage of a child in the absence of a presumption of determined legal status. Under state and federal law, the putative father has certain rights, but is very restricted in how he may assert those rights. Generally, when a child is born of the marriage, there is a presumption that the husband is the legal father, and paternity shall not be challenged as a matter of law.
The purpose of this presumption is to protect children from the stigma of illegitimacy, which would deprive them of their rights of inheritance and succession. This presumption is "one of the strongest and most pervasive known to the law." In re Findlay, 428 N.Y.S. 2d 865 (1980). G.L. c. 209C, Section 5(a) specifically does not permit a paternity action to be brought by a putative father. However, this does not take away the right of the putative father to bring a complaint to establish paternity under the general equity jurisdiction of the probate and family court under G.L. c. 209C, Section 6. To do so, The court must examine the relationship as a whole with the child, taking into account such factors as emotional bonds, economic support, custody of the child, personal association, putative father's commitment to attending to the child's needs, as well as any other factors that bear on the nature of the alleged parent-child relationship.
In addition to the above, the putative father must develop a solid legal and factual record, set forth in a sworn, verified complaint, or an affidavit to meet the high standard to rebut the presumption of legitimacy, which is proof beyond a reasonable doubt. At the end of the day, the decision must be what is in the best interest of the child.
Our clients don't want custody, they need it. We are hired by people who demand the best. Custody comes in many variations. As divorce practitioners, we have handled several custody cases. The following custody arrangements might be right for you:
Sole Custody: Sole custody is when one parent has custody, subject only to the other parent's visitation rights. The custodial parent receives support from the non-custodial parent. The parent who has custody is exclusively in charge of the health, education and welfare of the child or children and does not have to consult with the other parent about any of these issues. Sole custody is appropriate if parties do not work well together.
For some, custody is a win or lose proposition. This drives me nuts; after all, I'm a firm believer that children need both parents. However, there are those cases when a party truly believes that they are better for the child or that the child is in danger while in the care of the other party. Our attorneys can aggressively prosecute and defend custody matters because we have the experience needed to do so.
Joint Legal Custody - Primary Physical to One Parent: Here, the residential custodial parent is the person with whom the child resides most often. The court in this case is not granting joint legal custody to parties who cannot agree, between themselves, and act in the best interest of the children but the court is saying that, because of the age or other reasons related to the child, one parent is more active than the other relating to the child's physical presence.
Shared Parenting: This arrangement is appropriate in situations where people who work extremely well together, live in close proximity to the other and may have unique schedules that rely on cooperation from the other parent. In this arrangement, the parents share - to some degree - the time. Based on the specific agreement, each also has joint decision-making powers. Both have appropriate homes for the child or children. We often relay the shared parenting arrangement to clients as similar to that of a business partnership. Each parent has rights and responsibilities that are laid-out, in writing, just like partners would in a business venture.
No matter which arrangement works best for you, it's likely that you'll have a Parenting Plan that outlines rights and responsibilities. It's important to include the best phrases when you draft your agreement.
Custody refers to a legal arrangement, while shared parenting responsibilities describe the actual activity between the adults. Often shared parenting, also called co-parenting, is interpreted to mean that parents are able to raise their children together, even if the parents are no longer marital partners. Cooperative and communicative parenting is optimal, but co-parenting can be effectively accomplished in less optimal circumstances, as long as parents can put aside their differences and focus on what the children need.
There are four types of post-divorce relationships between spouses: perfect pals, cooperative colleagues, angry associates and fiery foes (as a divorced father myself, I'd consider our son's mother and I in-between the first two!).
Two of the four types can create an effective co-parenting alliance. Bottom-line: successful co-parents communicate and negotiate with each other about the children, respect each other as parents despite their differences, put past issues aside and concentrate on the child, share control with each other and adopt a hands-off attitude toward how the other person parents, tolerate differences in child rearing practices and values without labeling them as harmful to the child and value what the other offers as a parent.
In those cases where our firm is contacted, then retained to create our client's agreement, I provide for "liberal and reasonable" access in between structured visitation so long as the parties can work together and the children are of an age where the flexibility works well. There are also all kinds of issues that can be written in an agreement. For example, if you feel that your time with the children is often reduced when they are sick, compensatory time will be scheduled if it is not too disruptive. Similarly, if your spouse hires a babysitter to watch the children when you would normally be available, you can specify that you get first right of refusal for extra time (most judges require a three or four hour period before this clause would kick-in).
For parents who want to share their children's time equally, there are many possible schedules. Some that are used frequently are every other week, every two weeks, Monday morning through Thursday morning and Thursday afternoon through Monday morning, Wednesday morning through Saturday morning and Saturday morning through Wednesday morning and September through June for summers for parents who live in different states.
The benefits of shared parenting accrue to both parents, as well as children. Some of the most salient advantages are the nonresidential parent is less likely to feel like a visitor and money-making machine; both parents feel good about their ability to work together for their children; the child has ongoing contact with both parents and both parents get more support for parenting. One of the best advantages when it all works out is how both parents get more support for parenting. When one needs help in a pinch, the other parent is more likely to step in and assist.
There are six things you must do before you act on any thoughts you have about filing for custody. It's important to be certain that you have done the things you need to do to feel good about your decisions. Here are the top six things:
- Talk to an attorney before you do anything. Even if you don't end-up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information you can before doing the same relating to the custody of your children.
- Understand the Massachusetts standard as it relates to children (and custody-related issues). Here, we follow the "best interest of the children" approach. It is always best to work out an agreement with the other parent; then, child custody is simple. But if you cannot work out an agreement, the government takes over the role of deciding what is best for the children.
- Create a proposed "Parenting Plan." A vague, flexible arrangement will only create more trips to court later on. Insert all the issues to be addressed. Include joint and individual responsibilities, regular parenting schedules and vacation times each year.
- Beware of the Parental Alienation Syndrome. This theory that describes brainwashing by one parent to make the children hate the other parent is toxic. Evidence of this is often enough to convince the judge that one parent is unfit to be a sole custodian - based on this alone!
- If you end up in court, be briefed and follow the Rules of Procedure and discovery. Now is not the time to show your inability to follow any system that includes structure and predictability.
- If a GAL (Guardian ad litem) is involved, present your case in the best light possible. Find pictures of you with the children (showing how they're happy) and get letters of reference of others who have seen you interact with the children.
This past weekend, a client asked me what I thought his chances were in winning custody of the couple's two children. This common question brings up two important points worth addressing:
First off, there is a rebuttable presumption that some form of shared custody is in a child's best interest. This means that unless one parent or the court can prove the contrary, involvement from both parents is the starting point for which the court shall fashion an order relating to the children.
Secondly, in an effort to de-escalate the importance parents put on both winning and losing - along with the distinctions between the terms custody and visitation - the Massachusetts Probate and Family Court has slowly begun replacing the traditional custody language with that of a parenting plan. This parenting "plan" really ends-up being a contract between the parents.
This plan outlines the specific weekly parenting schedule, holiday and vacation schedule, shared transportation (pick-up and drop-off) responsibilities and both the individual and joint duties of both the children and parents, etc.
I am a big fan of detailed and organized plans. Whenever new clients come to see us, we make every effort to review 200+ must-have clauses that may be included in a parenting plan. While many clients get impatient, want to push their divorce through the system, we always slow the process down when it comes to the parenting plan. After all, thorough and detailed work now will prevent problems later.
To conclude, while lawyers and divorce litigants sometimes speak of a parent's "right" to custody of children, this is misleading. It is more accurate to refer to one parent's "interests" in custody rather than their "rights." The focus in a custody dispute between parents is not on their personal rights but on the welfare of the children.
I'll be in our Southborough/Marlboro office much of this week; call me to discuss how I might be able to help you outline the terms of your agreement - (508) 480-8770.
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