Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1457 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 525 FILED ON: 1/13/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1457
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Marjorie C. Decker
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to determining the best interest of children in probate & family court.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Marjorie C. Decker25th Middlesex1/11/2023 1 of 8
16	16	HOUSE DOCKET, NO. 525 FILED ON: 1/13/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1457
18	18	By Representative Decker of Cambridge, a petition (accompanied by bill, House, No. 1457) of
19	19	Marjorie C. Decker relative to determining the best interest of children in Probate and Family
20	20	Court decisions. The Judiciary.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 1528 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to determining the best interest of children in probate & family court.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 Chapter 208 of the General Laws, as appearing in the 2020 Official Edition, is hereby
32	32	2amended by striking out section 31 and inserting in place thereof the following section:
33	33	3 Section 31. Parenting of Children.
34	34	4 A. Definitions. For purposes of this section, the following terms shall have the meanings
35	35	5set forth below:
36	36	6 1. Decision-Making Responsibility
37	37	7 a. “Shared Decision-Making Responsibility.” The parents have mutual responsibility and
38	38	8involvement in major decisions regarding the child’s welfare, including matters of education, 2 of 8
39	39	9extracurricular activities, medical care, emotional and behavioral development, and religious
40	40	10development.
41	41	11 b. “Sole Decision-Making Responsibility.” One parent has the right and responsibility to
42	42	12make major decisions regarding the child’s welfare, including matters of education,
43	43	13extracurricular activities, medical care, emotional and behavioral development, and religious
44	44	14development.
45	45	15 2. Residential Responsibility
46	46	16 a. “Shared Residential Responsibility.” A child has periods of residing with and being
47	47	17under the supervision of each parent in such a way as to assure a child frequent and continued
48	48	18contact with both parents. One residence may be designated as the child’s “primary residence”
49	49	19while the parents have “shared residential responsibility.”
50	50	20 b. “Primary Residential Responsibility.” A child resides with and be under the care and
51	51	21supervision of one parent, and has parenting time with the other parent, unless the court
52	52	22determines that such time with the other parent is not in the best interest of the child.
53	53	23 3. “Parental Responsibility.” This term shall encompass both decision-making and
54	54	24residential responsibility.
55	55	25 4. “Parenting Plan.” A written plan describing parental responsibility relative to each
56	56	26child.
57	57	27 5. “Parenting Time.” The time when the child is under the care and supervision of one
58	58	28parent or a parenting time supervisor, without regard to whether that parent has shared or
59	59	29primary residential responsibility. 3 of 8
60	60	30 B. General Guidance.
61	61	31 1. In making an order or judgment relative to the care of children, the rights of the parents
62	62	32shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the
63	63	33children shall determine the distribution of parental responsibility. When considering the
64	64	34happiness and welfare of the child, the court shall consider whether or not the child’s present or
65	65	35past living conditions adversely affect the child’s physical, mental, or emotional health. Such
66	66	36conditions and their impact on the child shall be relevant as the court establishes division of
67	67	37parental responsibilities to provide for the safety, welfare and well-being of the child in a manner
68	68	38that is workable for the foreseeable future.
69	69	39 2. Upon the filing of an action in accordance with the provisions of this section, section
70	70	40twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until an
71	71	41order or judgment is rendered, absent emergency conditions, abuse, or neglect, the parents shall
72	72	42have temporary shared legal custody of any minor child of the marriage. Nothing herein shall be
73	73	43construed to create any presumption of temporary shared residential responsibility.
74	74	44 3. At any time after the filing of an action in accordance with the provisions of this
75	75	45section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and
76	76	46nine, the court may enter an order for temporary sole decision-making responsibility for one
77	77	47parent if shared decision-making responsibility would not be in the best interest of the child.
78	78	48 4. If, despite the prior or current issuance of an abuse prevention order against one parent
79	79	49pursuant to chapter two hundred and nine A or of a domestic relations protective order pursuant
80	80	50to section 18 of this chapter, the court orders shared decision-making or residential responsibility 4 of 8
81	81	51either as a temporary order or as a judgment, the court shall provide written findings to support
82	82	52such order.
83	83	53 5. There shall be no presumption either in favor of or against shared decision-making or
84	84	54shared residential responsibility at the time of the trial, except as provided in section 31A of this
85	85	55chapter.
86	86	56 6. When a party requests distribution of parental responsibility and division of parenting
87	87	57time, that party shall provide a proposed order to the court. At the trial, if the issues of parental
88	88	58responsibility or parenting time are contested and either party seeks shared decision-making or
89	89	59shared residential responsibility, the parties, jointly or individually, shall submit to the court a
90	90	60parenting plan setting forth the details of their proposed plan including, but not limited to: the
91	91	61child’s education; the child’s health care, procedures for resolving disputes between the parties
92	92	62with respect to child-raising decisions and duties; and the periods of time during which each
93	93	63party will have the child reside or spend time with each party, including holidays and vacations,
94	94	64or the procedure by which such periods of time shall be determined.
95	95	65 7. At trial on the merits, the court shall consider the parties’ proposed parenting plans in
96	96	66light of the factors set forth in (C) of this section. The court may accept, change, or reject the
97	97	67parenting plan submitted.
98	98	68 8. Where the parents have reached an agreement providing for parental responsibility of
99	99	69the child, the court may enter an order in accordance with such agreement, unless specific
100	100	70findings are made by the court indicating that such an order would not be in the best interests of
101	101	71the child. 5 of 8
102	102	72 9. Prior orders or agreements shall not create a presumption that their terms shall be
103	103	73continued.
104	104	74 10. A parent’s responsibility for child support shall continue to be governed by the
105	105	75Massachusetts Child Support Guidelines as required by section 28 of this chapter, regardless of
106	106	76the use of the terms shared or primary residential responsibility in any order or judgment.
107	107	77 11. The entry of an order or judgment relative to the parental responsibility for the minor
108	108	78children shall not negate or impede the ability of both parents to have access to the academic,
109	109	79medical, hospital, or other health records of the child, as the parent would have had if the order
110	110	80or judgment had not been entered; provided, however, that if a court has issued an order to
111	111	81vacate against one parent or an order prohibiting a parent from imposing any restraint upon the
112	112	82personal liberty of the other parent or if nondisclosure of the records, in whole or in part, is
113	113	83necessary to ensure the health, safety, or welfare of such child or party, the court may order that
114	114	84all or any part of such record the shall not be disclosed to a parent or make other such other
115	115	85orders to restrict release of such records in accordance with G.L. c. 71, s.34H.
116	116	86 C. Determination of Parental Responsibilities. In determining parental responsibilities,
117	117	87both at the time of entry of temporary orders and judgment, the court shall be guided by the best
118	118	88interest of the child. At the time of entry of temporary orders, the court shall consider holidays
119	119	89and issues related to the child’s schedule that are likely to arise before the next date at which
120	120	90orders will be made. In determining the best interest of the child, the court shall consider G.L. c.
121	121	91208, s.31A, if applicable, and seek to establish a parenting plan that fully provides for the safety
122	122	92of the children and the parties and the well-being of the children, and that is workable. 6 of 8
123	123	93 1. In determining what parental responsibility arrangement and parenting plan provides
124	124	94for the well-being of the child, the court shall consider:
125	125	95 (a) The past, present, and potential future relationship between the parent and the child,
126	126	96including the history of caregiving functions provided by each parent;
127	127	97 (b) The child’s adjustment to their school, community, and home, including any siblings
128	128	98and other household members;
129	129	99 (c) The anticipated effect on the child of disrupting or continuing the current custody
130	130	100situation, taking into account any special needs of the child;
131	131	101 (d) The willingness and ability of each parent to allow a close and continuing relationship
132	132	102between the child and the other parent; provided, however, that the court may not consider this
133	133	103factor if the court has found credible concerns related to s.31A or s.(C)(2) herein, whether or not
134	134	104the court has restricted contact based upon those concerns;
135	135	105 (e) The demonstrated capability and desire of each parent to understand and meet the
136	136	106physical, emotional, mental, religious, and social needs of each child, taking into account any
137	137	107special needs of the child; and
138	138	108 (f) The preference of the child, if the child is of sufficient age, temperament, and
139	139	109maturity.
140	140	110 2. In deciding what parental responsibility arrangement and parenting plan is safe for the
141	141	111children and the parties, the court shall consider:
142	142	112 (a) Whether a parent’s use of drugs, alcohol, or another substance interferes with that
143	143	113parent’s ability to properly care for the child; 7 of 8
144	144	114 (b) Whether a parent has inflicted physical, psychological, emotional, or financial abuse
145	145	115against the other parent, against any household member, or against a child; and
146	146	116 (c) Whether a parent has committed a sexual offense which, after considering the nature
147	147	117of the offense, the age of the victim, and the relationship between the parent and the victim,
148	148	118raises concerns regarding parenting time with the child.
149	149	119 3. In determining what parenting plan and schedule of parenting time will best meet the
150	150	120physical and emotional needs of a child, the court shall seek to create a parenting arrangement
151	151	121that is workable and realistic. In determining workability, the court shall consider:
152	152	122 (a) Whether the proposed arrangement is manageable, over time, for the parties and child,
153	153	123and for all other parties relevant to carrying out the arrangement;
154	154	124 (b) The geographic location and availability of each parent, including each party’s access
155	155	125to transportation, distance between the parties, or incarceration of a parent;
156	156	126 (c) Whether the level of cooperation required is within the past and present abilities of the
157	157	127parties and/or includes supports for developing improved cooperation and communication; and
158	158	128 (d) The ability of each parent to provide the required caregiving functions during their
159	159	129parenting time, including the parent’s ability to arrange for appropriate care and supervision.;
160	160	130 (e) Whether the length of each parent’s parenting time, the location of parenting time, the
161	161	131manner and location of exchange, the presence of supervision or parenting support, and the
162	162	132location of the parenting time adequately addresses the needs of the child and of each parent in
163	163	133accordance with (C)(1) and (C)(2) of this section. 8 of 8
164	164	134 The court may also consider additional factors that are deemed relevant and proven by
165	165	135the evidence, but must make findings specifying the factors considered and their relative weight.