CONSIDERATIONS IN MAKING CUSTODY AWARDS
There are a few primary considerations you should think about when deciding to file an action for custody of your minor children:
1. What is in the best interest of your child? This is the basic standard which the Probate Court will use in making a custody determination.
2. Are the parents able to communicate? If the answer is very well and the parents have
a good relationship even after a divorce then this would factor into an award of shared custody.
3. How is each parent=s relationship to their child? To have any chance at getting
a custody award your relationship with him/her will always prove to be a critical factor the Court will look at.
4. Where does each parent live? The type of environment at the house, whether there is a yard
for children to play in or whether there is enough room for separate bedrooms or the location of the local school and how isolated the child will be from his/her friends, etc. are all important.
The Court can award several basic types of custody arrangements:
1. Sole physical custody/Joint legal custody: this is where the child resides with one parent who is responsible for their daily activities but both are responsible for making decisions on the important issues such as schooling, religion, health, etc.
2. Sole physical custody/Sole legal custody: this is where one parent has an objectionable history and it may be impossible or unwise to provide unsupervised access to the child such as where the following may exist:
a.) an alcohol or drug problem;
b.) a mental health problem;
c.) a criminal history/domestic violence;
d.) a history of child abuse; or
e.) the other parent has never taken responsibility for a child.
3. Shared physical/legal – the child lives part time with each parent and both make good decisions on important issues such as when both parents have good communication between each other and live near each other.
Parenting plans (visitation) is generally extremely flexible between good parents where they are interested in working together for the good of their child. These are parents who do not carry a lot of baggage from the divorce and tend to be able to work things out between them in order to provide a normal life for their child. However, there are some other options such as:
a.) The Court will order an appropriate visitation plan where the parents can not agree to one.
b.) In even a marginal relationship with your ex-spouse can find you getting a reasonable visitation schedule according to your needs which is usually prior to or at the same time custody is awarded.
c) If one parent has a negative history the Court can set up supervised visits as it may not yet be safe for the child to visit alone. However, a good track record regarding behavior and visitation can easily eliminate the need for any supervision, which can take place at a professional visitation center or the Court can appoint a family member to “babysit” the bad parent’s visitations.
Another major factor which the Court looks at in awarding custody is which parent has been acting as the primary caretaker for the child, there are many factors to look:
(a.) Which parent has had the main responsibility for caring for the child during life and which parent has spent the most time with the child, for example: which parent takes the child to doctor=s appointments, changed diapers, fed and clothed the child, brought to school, put the child to bed at night (this parent typically would have given up a good deal of his/her personal time including job opportunities and education for the sake of rearing a child (that type of argument can later play into how the Court determines contributions of each in the marriage).
**Always consider any history or ongoing situation involving DCF any you should always notify your DCF caseworker of any custody proceedings so they can give a report when it comes to going to Court.
Pursuant to G.L. 208, sec. 31A, G.L. 209A, sec. 3 and G.L. 209C, sec. 10 there is a statutory presumption against awarding custody of a child to a parent who has committed a pattern of abuse or a serious incident of abuse when it occurred between parents or by parent against child.
The Court must consider any past or present abuse toward a parent or child as a factor against the child=s best interest. Abuse is defined as any attempt to cause or actually causing bodily harm, injury or placing another person in reasonable fear of imminent bodily injury.
This statutory presumption applies in cases where there has been a pattern or serious incident of abuse which is legally defined as:
a) attempting to cause or causing serious bodily injury;
b) placing a person in reasonable fear of imminent bodily injury; or
c) causing another to engage in involuntary sex by force, threat or duress.
The presumption is then raised that it is legally not in the best interest of the child to be placed in the sole physical custody or even any legal custody (shared or joint) of the offending parent.
Once this presumption is raised in Court then the burden shifts to the other (supposedly unfit) parent to show that despite any evidence of a pattern or a serious incident of committing abuse it would still be in best interest of the child to be placed in his/her custody.
However, an ongoing restraining order would not be by itself enough to cause the presumption to be raised. Further, when a Court finds a pattern or serious incident of abuse and then issues a custody Order IN FAVOR OF an offending parent then the Court must make written findings of fact why that is in the child=s best interest and how to provides for the safety and well being of the child. This also applies whenever a visitation plan is given to an offending parent.
Case law has held whenever there is domestic violence between parents the Court must consider any effects that the violence has had on a child before making a decision about custody, stating that "physical force within the family is intolerable... and such is a violation of the most basic human right...the right to live in physical security."
Also, case law has held that this also applies when a child witnesses domestic violence as that an have a major impact and can create serious psychological problems.
When a Court Orders visitation to an offending parent, practical considerations allow for the following types of situations to take place:
a) Exchanging in a protected setting or in the presence of appropriate third party;
b) Ordering supervised visits at an appropriate third party, center or agency;
c) Order the abusive parent to attend and complete a treatment program;
d) Order no possessing or consuming alcohol or drugs during visits and for 24 hours prior and to Order drug testing for both parents;
e) Prohibit overnight visits;
g) Requiring a bond for the return of the child (to allow out of state/international visits); or
h) Appoint a GAL to evaluate the situation (or a Probation Department investigation).
In cases where the child is participating in therapy and those communications are privileged (such as with a licensed psychologist) it is usually argued that the Court should Order any privilege be lifted to obtain information directly from the therapist. Usually a GAL must be appointed to evaluate whether or not such would be in the best interest of the child.
Thus, a parents should never be deprived of their Constitutional right to see their child(ren) unless they have the most grievous shortcomings or handicaps that would put the child’s welfare at risk. A parent’s mental disorder is relevant only to the extent that it affects the parent’s capacity to assume responsibility and deal with the child’s needs. Nor does the mere fact a parent is incarcerated for a serious crime renders the parent unfit.
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