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.

Custody and the Religion of the Parents

Alba and Andrew are recently divorced after a decade of marriage. They have one child, Andy, and per the divorce decree, the share physical and legal custody. Alba is growing concerned, however—Andrew has recently joined a religious order which differs from Alba’s religion (and the religion in which Andy is being raised) and has talked extensively to Andy about his new religion during his parenting time. Alba is concerned about what she calls Andrew’s “indoctrination” of Andy into his religion. She wonders if the custody order will be modified based on her concerns.  

Unless Andy’s best interests are at stake, and unless Andrew’s conduct is detrimental to the minor child’s well-being, the answer is probably no. In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child.  

A landmark case is Felton v. Felton, where the mother brought a petition to modify visitation rights with the father, who had become a Jehova’s Witness. 6 The mother claimed that the father was “indoctrinating” the children in his religion and alienating them from her in the process. The trial court sided with the mother and modified visitation, and the father appealed. Transferring the case for direct review, the Supreme Judicial Court reversed the trial court’s decision, holding that the religion of the parents will only be a factor in custody and visitation disputes if it is proven to be injurious to the child. “There is clear error, for lack of foundation in the record, in the judge’s findings of a “deleterious effect” on the children and an “undermining” of the custodial relationship by reason of the father’s religious instruction or practice,” the Court held. 7 

In another case, parents with different religious beliefs were granted shared custody of the minor children. 8The father appealed, and the Supreme Judicial Court again granted direct appellate review. First, the Court held that there was no infringement of the parents’ rights to religious freedom: “Promoting the best interests of the children is an interest sufficiently compelling to impose a burden on the defendant’s right to practice religion and his parental right to determine the religious upbringing of his children.” 9 The Court also noted that the joint custody order was appropriate, despite the parents’ feelings that their religious differences cannot be worked out. “Although the judgment contemplates continued court involvement, it does not foster excessive government entanglement because the focus of any judicial inquiry will center on the emotional or physical harm to the children rather than the merit worthiness of the parties’ respective religious teachings,” the Court said. 10  

In another interesting case involving a contentious divorce between two devout Hindu parties, the father requested that he be allowed to perform a religious ritual on his daughter which involved the cutting and shaving of her hair. The mother opposed performing this ritual. The trial judge ordered that the ritual be postponed until the minor child reached an age where she would be able to make the decision for herself as to whether she wanted to engage in the ritual. The Appeals Court affirmed. The Court noted the competing fundamental right interests involved: the father’s right to practice his religion versus the mother’s right to direct the upbringing and religious life of her child. The Court noted that the trial court’s decision did not infringe upon the father’s religious freedoms. 11 

 

If you have any questions about issues of divorce, custody, or support, 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. 

Keeping Siblings Together: Does It Factor Into Custody Orders?

Tom and Ted are siblings who are one year apart. Their parents are going through a divorce and have been separated for a year, with Tom and Ted staying primarily at their mother’s home and visiting their father twice per week, with overnight visits at least once per week. The parents in this case will deal with the issue of keeping siblings together. Tom recently overheard something troubling: his father, during a fight with his mother, said that he would ask the Court to split up the boys, “so that at least [he] would have custody of one of the kids.”

Tom is very concerned—he is really close to his brother Ted, and he can’t imagine growing up in separate households. Will Tom’s concerns be weighed during the Court’s considerations regarding which parent should have custody of the children?

Legal and physical custody is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”[1]

In order to resolve issues of custody, the Massachusetts Probate and Family Courts will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. One of those factors is the preference to keep siblings together as a family unit. Although keeping siblings together is just one factor considered by the Court, the preference typically is to try to allow siblings to live together, so as to allow them to develop a healthy familial relationship.

In one case, the judge split up identical twin children, awarding custody of one girl to the mother and the other to the father, after the mother petitioned for a divorce modification. [2] The father appealed, and the Appeals Court found no justification for the judge’s order to separate the twins. In that case, the guardian ad litem noted that the separation was detrimental to the children and that the girls should be reunited. The court held: “the judge failed to make specific or detailed findings based on evidence within the record, apart from the children’s own statements of preference, that separating the twins is in their best interests. In ordering their separation, the judge failed to consider powerful evidence which abundantly and unyieldingly supported their continued placement together. Instead, his articulated reasoning manifests an excessive reliance upon the preferences of two eleven year old children as to which parent each would like to live with.” [3] The Appeals Court vacated the trial judge’s order.

If you have any questions about custody issues, 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] Mass. Gen. Laws ch. 208 s. 31

[2] Ardizoni v. Raymond, 40 Mass. App. Ct. 734 (1996).

[3] Id., at 741.

Under What Circumstances is the Preference of the Child Considered in Custody Disputes?

Tim is twelve. His parents are getting a divorce, and while Tim is coping well with the changes in his life, he is concerned about the possibility of living with his mother. Tim has expressed a clear preference for staying with his father, who lives in the town where Tim goes to school. While Tim loves his mother and wants to see her as much as possible, he prefers not to stay with her every day. Will Tim’s preferences be considered during the divorce?

Legal and physical custody of Tim is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”[1]

In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. One of those factors, in some cases, is the expressed preferences of the child.

In Massachusetts, the territory of children’s preferences as a consideration in custody disputes must be tread carefully. The concern, of course, lies in reliability: the courts are concerned that the expression of a child’s preference (particularly when the child is small) may be unreliable, based on clouded judgment, or perhaps even manipulated, whether by one of the parties or others present in the child’s life. It is not difficult to imagine that statements such as “Kids belong with their mothers,” or “Your father’s house is so much cooler than your mother’s” might work to sway the judgment of an impressionable child in expressing a preference for living with one parent over the other.

Typically, the Court will pay more attention to the child’s preferences in the case of older children, in context of the age and maturity of the child. In one case, the Court considered the preferences of a ten-year-old boy to live with his father in Germany;[2] in another, it considered the preferences of an eleven-year old to stay with his father.[3] It is important to note that the preferences of the child will not necessarily be the decisive factor, particularly if other factors indicate that it is not in the best interests of the child to order custody according to what the child prefers.

If you have any questions about division custody issues, 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] Mass. Gen. Laws ch. 208 s. 31

[2] Bak v. Bak, 24 Mass. App. Ct. 608 (1987).

[3] Custody of Vaughn, 422 Mass. 590 (1996).

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).

Sharing Custody Across Different Towns

Murray and Monique divorced a few years ago and share custody of their two minor children. The kids stay with Murray for most of their days, and they attend a school just two blocks away from Murray’s house, in a Massachusetts town in which the educational system has great reviews. Monique has generous visitation, and the children spend two nights per week and every other weekend at her house, which is a five-minute drive away. Things are working fine—until Murray announces to Monique that he has received an offer of employment in a Massachusetts town more than an hour away, and that he intends to relocate to that town with the children. Monique objects to the move, as she believes it will significantly reduce her time with the children. She also notes that the school system in Murray’s new time receives significantly lower reviews than the children’s current school district.

Sharing custody across different towns can be a difficult endeavor; however, it can be manageable if both parents are willing to collaborate. As with any other issue concerning custody of children, the Massachusetts Probate and Family Courts will consider what is in the best interests of the child(ren) in making decisions about where the child(ren) should live. In the context of in-state moves, the Court will consider first and foremost whether the move would constitute a real advantage for the child. For example, the Court might look at the following questions:

  • Is the move disruptive to the child’s social or educational progress?
  • Is the move disruptive to the current visitation schedule?
  • Will the move improve the child’s quality of life?
  • Will the move potentially cause adverse effects on the child due to reduced visitation with the non-custodial parent?
  • Will the move improve stability in the life of the child?
  • Does the move violate an earlier agreement by the custodial parent not to move outside a particular geographic area?

As with most family law matters, the above are merely factors the Court may consider at its discretion, in order to evaluate what type of custody and visitation arrangement will be in the best interests of the child. Unlike out-of-state relocation, there is no Massachusetts statute which expressly governs in-state moves. As such, the Court will review these factors, among any other relevant factors present, to reach its decision.

In one case, the Appeals Court considered the objections of a father whose ex-wife decided to move their minor children from Eastern Massachusetts to the Western part of the state. [1]The father sought a modification of the divorce decree, asking that custody be awarded to him. In her counterclaim, the mother asked the Court for permission to relocate the children to Western Massachusetts. The trial judge sided with the father, and remarked that the move would disadvantage the children, would favor the mother’s own desires, and would sacrifice the desires of the father. The Appeals Court, however, remanded the case and urged the Probate and Family Court to take into consideration whether the move might provide a real advantage for the children. In some cases, the Court noted, it might be possible for a real advantage to exist—whether it be through increased stability or better opportunities for the children in the care of the custodial parent.

If you have questions about parenting across different towns, 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] D.C. v. J.S., 58 Mass.App.Ct. 351 (2003).