Keeping Children from the Presence of a Third Party During Custody Arrangements

Leila and Liam are divorced and share custody of their two children. Liam has a new girlfriend who has moved in with him. Leila disapproves of their living arrangements, which she claims are against her moral beliefs. She wants to know whether she can prevent Liam from having his girlfriend around her children. What will the judge do when encountering this and other third party custody issues?

When determining whether a party may prevent the other party from keeping the children in the presence of a third person, the Courts will weigh whether any adverse impact has been made on the children.

In a key Massachusetts case, the Court granted custody to the father; the mother appealed, asking the Court to prohibit the husband from allowing their youngest child to be in the presence of the husband’s new girlfriend, with whom he was cohabiting. [1] The mother argued that her children were being exposed to immoral behavior by seeing their father cohabit with another woman to whom he was not married. She cited to a number of older laws, such as those which once prohibited cohabitation.

The Appeals Court held that the child needn’t be prohibited from being in the presence of the father’s new partner, because there was no evidence that any of the three children were adversely impacted. The Court noted: “in the usual case, judges should avoid making moral judgments on the lifestyles of proposed custodial parents, recognizing that such judgments are appropriate only when it can be shown that a parent’s lifestyle has a direct and articulable adverse impact on the child, or where there can be no real dispute in the circumstances of the particular case that the behavior of the custodial parent is related to his or her parenting ability.”[2]

In another case, the Appeals Court decided on custody matters between a husband and wife, where the wife was engaged in an incestuous relationship with her biological father. The Court granted primary custody to the wife, holding that she was the primary caregiver and that the husband exhibited little inclination to take care of the child while they were residing with him. However, the Court also noted the importance of keeping the children’s grandfather away from them. The Court prohibited the mother from allowing the children to have any contact with her father. [3]

“There can be no real dispute that if the wife and [her father] were to engage in an ongoing incestuous relationship to which the minor children were exposed, directly or indirectly, then at some point there would be a direct and articulable adverse impact on the children,” the Court noted. “In these circumstances, it would be error to omit such an essential prophylactic measure to safeguard the well-being of the children, especially one that was already in place and relied on by the judge and other experts at the award of physical custody.” [4]

In a recent decision, the Court, however, declined to apply the decision in B.B.V. to the claims of a mother, whose husband was having an adulterous relationship with the parties’ former au pair, that the children ought to be kept from the presence of the au pair. [5] The Court stated: “we reject the mother’s argument that there are “compelling” parallels between this case and B.B.V. v. B.S.V…where we imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V ., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between their mother and grandfather, and we acknowledged that such exposure ‘would be a direct and articulable adverse impact on the children.’… In this case, comparable evidence of a ‘direct and articulable adverse impact on the children’ as a result of the father’s relationship with the former au pair is noticeably lacking.” [6]

If you have any questions about divorce or custody, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Fort v. Fort, 12 Mass. App. Ct. 411 (1981).

[2] Id., at 415.

[3] B.B.V. v. B.S.V., 68 Mass. App. Ct. 12 (2006).

[4] Id., at 20.

[5] Jankovich v. Jankovich, 88 Mass. App. Ct. 1111 (2015).

[6] Id., at 3.

Primary Caretakers and Custody Issues

Nancy and Nick are married but separated. Nancy lives in the marital home with the couple’s daughter, Nicole, who is nine years old. Nancy has been Nicole’s primary caretaker since Nicole was born. As such, Nancy believes she is automatically entitled to full legal and physical custody of Nicole. Is Nancy correct?
Not necessarily. Massachusetts does not recognize the presumption that the primary caretaker of a child is entitled to custody.

Generally, the court will consider matters of custody by examining what is in the best interests of the child. The best interests of the child standard includes many factors. The court considers the presence of all relevant factors in its custody orders, and each factor may be weighted differently from the others, depending on the individual facts of the case.

Naturally, one factor for the Court to consider is which parent has served as the primary caregiver of the child(ren). The Court reviews this factor to determine not only which parent has undertaken the bulk of child-rearing responsibilities, but also with which parent the child(ren) formed deeper and stronger bonds. However, being the primary caregiver does not always mean the parent will receive custody. The Court will scrutinize the level of care provided by the caregiver parent, and it will ultimately decide whether continuing that care is in the best interests of the child(ren).

In one case, the Court considered custody of a minor child whose primary caregiver had been the mother, but whose father had extensive visitation with the child and took care of the child well during his time with her. The Court looked at factors such as the lack of structure in the mother’s home and the unwillingness of the mother to share information with the father and involve him in key decisions regarding the child. The judge also noted that on several occasions, the mother engaged in conduct which was not in the child’s best interests, including driving her without a car seat and allowing her to sleep in bed with the mother and her boyfriend. The judge, by contrast, noted that the father engaged the child in educational and stimulating activities, and that he cared for her everyday needs whenever the child was with him. The judge ordered that, despite the mother being the child’s primary caregiver, the father should have custody; the Appeals Court affirmed. [1]

While being the primary caretaker is one factor in custody determinations, it is one of many factors considered by the Courts. If you have questions regarding custody, it is advised that you seek the advice of experienced counsel. Should you wish to schedule a free consultation with our office, you may call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] In re Custody of Zia, 50 Mass. App. Ct. 237 (2000).