The Massachusetts Legislature is Considering Bills That Would Require Shared Custody When Parents Divorce

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What do "shared" custody and "sole" custody mean?

There are different types of custody arrangements which are appropriate in different situations. These custody arrangements are defined by law:

Sole legal custody

Sole legal custody means that one parent has 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

Shared legal custody means 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

Sole physical custody means that a child resides with and is under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court decides that such visitation would not be in the best interest of the child.

Shared physical custody

Shared physical custody means that a child has periods of residing with and being under the supervision of each parent, and that physical custody is shared by the parents in such a way that assures the child frequent and continued contact with both parents.

What does it mean to "require" shared custody?

Requiring shared custody when parents get divorced means the judge must order shared custody even if the parents do not agree and even if shared custody is not what is best for the child. Shared custody is "forced" when the law says that a parent is entitled to shared custody without having to show the judge that shared custody is in the best interests of his or her child.

Does the law currently require forced shared custody?

No.

Does Massachusetts law have any provisions for shared custody?

Yes.
Under current law, judges issue orders for shared legal custody or shared physical custody when the parents are in basic agreement and upon receipt from the parents of child-centered shared custody plans that are consistent with the child's best interests.

Do the shared custody bills require forced shared custody?

Yes.
They require forced shared custody by creating a "rebuttable presumption" that shared physical custody and shared legal custody are in the child's best interests. This presumption means that the court must order shared physical and shared physical custody without considering whether such an order is best for the child. "Rebuttable" means that if a parent believes that shared custody is not best for the child, then he or she must prove it. If there is a presumption of shared custody, then a parent is entitled to shared custody without having to show the judge anything! A parent that demands shared physical custody would not have to show the judge that shared custody is good for his or her child!

Where will children actually live if shared physical custody is required?

Remember the legal definition of shared physical custody: "Shared physical custody means that a child has periods of residing with and being under the supervision of each parent, and that physical custody is shared by the parents in such a way that assures the child frequent and continued contact with both parents." The children of divorced parents will be required to live with both parents.

Some of the bills also say that the child must reside with each parent equally.

What's wrong with requiring parents to share physical custody when they get divorced? What's wrong with requiring children to live with both parents?

The shared custody presumption

Is an unreasonable one-size-fits-all idea.
Satisfies the demands of some parents, not the needs of children
Treats children as if they were property, to be divided
Is out of touch with practical experience and social science research
Forces shared custody on those children whose parents are least likely or able to make it work
Forces shared custody on children from low income families whose parents cannot afford it.
Puts children in the middle of continual parental conflict

What does research show about the impact of shared physical custody on children?

A number of studies have been conducted to explore the impact of shared physical custody on children. One study found that where shared physical custody was ordered rather than entered into voluntarily and by agreement, children are more likely to be caught and used in parental disputes and were therefore more likely to have social and behavioral problems. Another found that the children of bitterly fought custody battles that ended in the imposition of joint physical custody became psychologically disturbed. They were significantly more depressed, withdrawn and non-communicative than other children, they suffered from more physical symptoms, and tended towards more aggressive behavior. Children are especially at risk when they have frequent and continuing access to parents who are hostile and uncooperative with each other.

Another study concluded that that no one specific kind of custody arrangement is clearly better for children. Mental health professionals say that "one size fits all" approaches, such as a presumption in favor of specific custody arrangements, are likely to be harmful to families. Studies show that shared parenting arrangements could be beneficial to children in low conflict situations but harmful to children in high conflict situations. Having two homes appears to more harmful when parents are in high discord than living in one home.
Studies point to the potential benefits of joint physical custody in cases where the parents are able to work cooperatively. Some urge caution about any conclusion that joint physical custody benefits children when the parents are unable to cooperate or agree to a joint custody arrangement.

The basic conclusion of the studies on shared physical custody is simple: cooperation between parents is what helps children adjust and thrive after divorce, not a particular custody arrangement imposed by the courts. Children can benefit from shared custody if it arises out of a cooperative agreement by their parents, and they will generally suffer from joint custody if it is imposed upon their parents when their parents are unable to cooperate. When joint custody is imposed upon parents in conflict, the child will suffer by being placed directly in the middle of their conflict and becoming the battlefield upon which conflict will continue to rage.

Does shared physical custody mean that child support will be reduced?

Yes.

The amount of child support that a parent is required to contribute is figured out using the Child Support Guidelines. The Child Support Guidelines specifically say that they do not apply if custody of the child is shared between the parents.

Produced by Massachusetts Law Reform Institute
Last updated July, 2006