Sole Legal Custody is About What's Best for the Child, Not Who Is a Better Parent “I must get sole custody of the kids!” How often do you hear that from divorce clients? “This is not a case for sole custody,” however, is often (more often than not, maybe) what you’ll hear from the bench when that issue is raised by motion or at a pretrial conference. A settlement agreement granting one parent “sole legal custody” is uncommon – the thought being, what involved parent willingly gives that up? Yet, how many times have you seen separation agreements that include joint or shared custody provisions for parents who seem incapable of correctly agreeing on something as simple as the time of day?
The case law regarding orders for joint or shared legal custody is very clear: “[I]nvolving both parents in decision making is in the child's best interests ‘only if the parties demonstrate an ability and desire to cooperate amicably’” Smith v. McDonald, 458 Mass. 540, 553 (2010) (emphasis added), quoting from Mason v. Coleman, 447 Mass. 177, 182 (2006)). “Joint custody is inappropriate for parents whose relationship to date has been ‘dysfunctional, virtually nonexistent, and one of continuous conflict.’” Id. (emphasis added), quoting Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). “‘[I]n order to be effective ‘joint custody requires two capable parents with some degree of respect for one another’s abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions.’” Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981), quoting from Taussig & Carpenter, Joint Custody, 56 N.D. L. Rev. 223, 234 (1980).
It is said that most cases settle. In the ones that don’t, the records often contain shared legal custody orders founded on the court’s “hope” or “expectation” that, despite evidence of “dysfunctional” relationships and “continuous conflict,” the passage of time will lead the parties to a place in which effective joint decision-making will be possible.
One such case is T.D. v. D.D., 82 Mass. App. Ct. 1114 (2012) (Unpublished). It is a demonstration by the Appeals Court Justices that they will not shy away from countermanding a joint legal custody order when the evidence convincingly establishes that sole custody is the right or “correct” result. Indeed, the Appeals Court vacated the trial judge’s shared legal custody order and sent the case back to the Trial Court with directions for entry of judgment that the mother have sole legal custody of the two children. Although the judge’s findings acknowledged ongoing conflict between the parents, the judge stated he was “hopeful” that once the divorce became final the parties “[would] slowly develop a relationship as responsible parents with a goal toward communication between them and in the best interests of their children.” The Appeals Court, however, reversed because both the evidence and the judge’s own findings “[did] not support the conclusion that the parties can meaningfully cooperate in making decisions for the children.” An order of shared legal custody “cannot stand” in such circumstances. See Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131 (2009) (“[i]n some ... Appellate Courts May Look at the Issue Through a Different Lens Than the Trial Court Similarly, in McKnight v. Fisher, 92 Mass. App. Ct. 1126 (2018) (Unpublished), the mother appealed a shared legal custody order, and the Appeals Court agreed the judge's findings could not support the award of joint legal custody and unsupervised parenting time to the husband. “Shared custody ‘requires two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together.’” (quoting Rolde v. Rolde, supra). There was “conflicting testimony” regarding the parties’ “ability to co-parent the child effectively” and the judge credited the GAL’s testimony that the parties were unable to co-parent effectively due to the father’s “inappropriate conduct” and “vitriolic rages,” including “name calling” and “swear[ing]” whenever the mother disagreed with him. The mother’s testimony that it was sometimes “impossible” to communicate with the father was credited by the judge. Though the father’s love for his child was not doubted, the judge did question whether he “has the ability to control his outbursts, rages and abusive behavior toward [the mother].” There were findings that the father “lacked insight into his behavior,” “inappropriately introduced the child to women[,] and even allowed the child to sleep in bed with him and another woman.” The judge's subsidiary findings did not support his ultimate determinations as to shared legal custody and unsupervised parenting time (i.e. “[t]he factual basis upon which the judge” made each of those determinations “remain[ed] opaque”). “In light of these findings, the judge's decision to award shared legal custody is not adequately supported.” (citing Carr v. Carr, supra (joint legal custody is not appropriate where “the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict”)).
More recently, Supreme Judicial Court (SJC) showed that they, too, will support a trial judge’s proper application of the law to the facts and evidence in a high-conflict custody dispute. In Malachi v. Quintina, 483 Mass. 725 (2019), the SJC affirmed a modification judgment granting sole legal custody of a child to the father on grounds that the mother’s “recently-escalating” campaign of unsubstantiated abuse allegations demonstrated a desire to “punish” the father and an inability “separate their prior relationship” in ways that were “potentially extremely detrimental to the child.” Id. at 740-741. One factor bearing on the welfare of a child is “whether one parent seeks to undermine the relationship [the] child has with the other parent.” Hunter v. Rose, 463 Mass. 488, 494 (2012). The judge’s findings that circumstances had materially and substantially changed were supported by evidence, and her conclusion that mother’s actions (e.g. attempts “to use the child’s providers to bolster her case against father”) warranted modification of what had been a shared custody judgment to sole legal custody to the father - it was not plainly wrong or clearly erroneous. Are Children of Married Parents Treated Differently at the Outset of a Case? Children born to (or adopted by) a married couple “are entitled to the same rights and protections of the law” as children born “out of wedlock.” This, of course, is a flip-flopped reading of G.L. c. 209C, §1, but it is interesting how the findings required by G.L. c. 208, § 31 (applicable in actions between married parents), seem weak in comparison to the positive or affirmative findings required by §10 of Chapter 209C. Absent a court-approved agreement, §10 provides that, “the court shall [award joint custody to not-married parents] only if …the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child's best interests.” (emphasis added – obviously) See Smith v. McDonald, 458 Mass. at 553 (2010) (“In awarding joint custody absent an approved custody agreement between the parties, to comply with G.L. c. 209C, §10, the judge's findings must support the conclusion that the parties can cooperate in making decisions for the child and have done so in the past.”).
Section 31 of Chapter 208, applicable in divorce or separate support actions, provides that “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.” (emphasis added). The married parents of a child, therefore, will have shared legal custody as a matter of right, at least temporarily (i.e. prior to entry of judgment), unless one of them comes forward with a motion asking the judge to find the negative, i.e. that shared custody is NOT best for the child. Consequently, the child of the married parents does not have the automatic, built-in protection from hostility and conflict that is afforded the child of not-married parents by virtue of the judge’s obligation under G.L. c. 209C, § 10, to affirmatively ascertain and find that the parents have both “the ability to communicate” and a history of “successfully exercis[ing] joint responsibility for the child.”
The powerful little case of T.D. v. D.D. (discussed above) came down in 2012. Many cases, older and more recent, likewise demonstrate that “sole legal custody” is not as unattainable as many may think, and, as a result, may dissuade clients from pursuing (even though the goal of such orders is the protection of the child from further and ongoing conflict, strife and parental feuding). The job sometimes is to bring the cases like those cited here, and the many others like it, to the attention of the judge who is asked to make the hard decision to NOT order shared legal custody when the facts and evidence point to sole legal custody as the “correct” result. Additional Cases in this Area (So many I exceeded the space limitations!) Deciding to take a case to trial over the issue of sole v. shared legal custody, of course, comes with a cost, financially and emotionally, as does the decision to appeal a shared custody judgment that is “incorrect” and “cannot stand” on authority of cases like T.D. v. D.D., Malachi v. Quintina (above), and Macri v. Macri (below). It is the client’s right, however, to be fully informed of reasonably attainable outcomes, and to decide on the worth of her or his child’s protection from avoidable parental conflict.
In Robinson v. Robinson, 97 Mass. App. Ct. 1110 (2020) (Unpublished), the Court affirmed the trial judge’s modification judgment which transferred sole legal and physical custody of a minor child from the mother to the father, to whom the judge also awarded $25,000 in fees. The outcome was based primarily on the judge’s conclusion that the mother had repeatedly interfered with the father’s attempt to reunify with the child (the mother “has done everything in her power to delay, obstruct, and subvert [the father’s] efforts to reunify with his son”). She “repeatedly lied to the Court ... and she lacked credibility throughout the entirety of her testimony, on direct and cross-examination” (a pattern of baseless allegations cast “significant doubt on [the mother’s] credibility with respect to all important issues, including … her overall ability to parent the minor child”). This pattern of misconduct constituted the requisite “substantial and material change in circumstances” and, contrary to the mother’s claims on appeal, “the judge's detailed findings regarding the mother's false statements, obstruction, and interference with the father's efforts to reunify with the child ha[d] ample support in the record…” (citing Adoption of Larry, 434 Mass. 456, 462 (2001) (we defer to judge's weighing of evidence and assessment of credibility of witnesses)).
In Macri v. Macri, 96 Mass. App. Ct. 362 (2019), the Appeals Court upheld the trial judge’s decision to modify a joint legal custody order and grant the mother sole legal custody. The judge found “significant difficulty” existed in the parties’ communication with each other, and cited several instances of recent conflict between the parents that impacted the child, including conflict over the child’s school enrollment for the 2017-2018 academic year. The “continued inability to communicate” and the father’s inability “to put [the child’s] needs first in regards to his communication and decision-making with [the mother]” constituted a material and substantial change in circumstances, and the judge concluded that it was in the child’s best interests to grant the mother sole legal custody. The judge rejected the father’s argument that there was no material change of circumstances because “communication issues” existed at the time of the earlier (2013) divorce judgment; the judge specifically and permissibly noted that the parties’ ongoing conflict became contrary to the child’s best interests in 2017 (after the earlier judgment), thus warranting modification of legal custody. There was no abuse of discretion. See Hurrier v. Hurrier, 95 Mass. App. Ct. 1118 (2019) (Unpublished) ... A Couple More Cases... Regarding such “final decision-making” variables, the Court more recently, in D.B. v. J.B, 97 Mass. App. Ct. 170 (2020), upheld a judgment for share custody, but providing that the mother would have final decision-making authority with regard to the children’s medical care “due to the parties’ inability to work collaboratively in those matters in the children’s best interests.” Notably, the judge “permissibly rejected” the GAL recommendations that the husband have sole legal and physical custody of the minor children based on findings of “troubling” conduct by the GALs (there were two) in acting “outside of their prescribed roles.” This is a good reminder to practitioners and litigants that, whatever may be a GAL's recommendation, “the judge is required … to draw her own conclusions in deciding the case.” (citing Sagar v. Sagar, 57 Mass. App. Ct. 71, 79 (2003)).
Another of example of using “final decision-making” authority to solve ongoing conflict is Vanhorne v. Cerone, 90 Mass. App. Ct. 1121 (2016) (Unpublished). This is a modification case in which the judge ultimately declined the mother’s request to shift legal custody entirely to her, but “granted the mother the authority to make ‘final’ decisions regarding the children's education.” He found that the “parties have a difficult time communicating” (mostly about educational issues), “the [f]ather is demeaning to [the mother] at times and is unwilling to discuss with her some issues which affect the children.” While acknowledging that “it is very important to the [f]ather to continue to share legal custody of the children” the judge found that “his behavior makes it difficult ... to continue to do so.” In sum, “the father's antagonistic behavior toward the mother [rendered] it difficult, if not impossible, for the parties to continue making joint decisions regarding the children's education.” There was no error in granting the mother final decision-making authority. And a Couple More... In A.M. v. R.M., 95 Mass. App. Ct. 1120 (2019) (Unpublished), the Court rejected a father’s claim on appeal that the judge improperly rejected a GAL’s recommendation for joint legal custody, and awarded sole legal custody to the mother. “[T]he judge found the parties' relationship to be ‘dysfunctional and one of continuous conflict,’ and that it was in the children's best interests for the wife to have final decision-making authority when the parties cannot agree.” See Carr v. Carr, supra. Based on his own “observations of [each party's] demeanor ... while testifying at trial,” the judge specifically found that the father's “continued aggressive and physically intimidating conduct toward [the mother] prevents the parties from being able to communicate effectively as to major decisions regarding the children.” (citing Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987), quoting Stevens v. Stevens, 337 Mass. 625, 627 (1958)).
In Ogles v. Johnson, 95 Mass. App. Ct. 1118 (2019) (Unpublished), the Appeals Court concluded that the trial judge’s findings “did not support an award of joint legal custody and, consequently, that so much of the amended judgment that orders joint legal custody constitutes an abuse of discretion.” Even though the judge found that the parties had been able to agree on “some decisions regarding the child,” his findings otherwise “describe[ed] a highly contentious relationship.” Neither the evidence nor the judge’s findings “could support the conclusion that the parties can meaningfully cooperate in making decisions for the child” and the judgment for “joint legal custody cannot stand.” The Court ruled, “on remand the amended judgment shall be modified to order sole legal custody of the child to the mother.” While suggestions were made about how the judge may consider including in the amended judgment provisions obligating the mother to keep the father informed or seek is input on major decisions, the Court nevertheless unequivocally required “that the mother shall be granted final decision-making authority in all instances where the parties cannot agree.”
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