When children are involved in a divorce, the court will always look at what is in the best interest of the child. As a parent, regardless of the spite that may cloud your divorce, when it comes to your children, their best interest should always be at the heart of the matter.
Any given judge must use his or her discretion in finding for the child’s best interest, but must also have strong evidence to support the judgment. However, the most important characteristic of a parenting plan is that there is no model rule - every case is unique and every child and parent is unique. As a parent, you and your spouse may either draft your own parenting plan or ask the court to draft one for you. Acting reasonably and realistically in your requests before the court will lead to a more favorable outcome. As a parent, you will be most successful and the court will be more likely to approve your plan when it is designed in accordance with the law and when it established an organized and comprehensive agenda for the betterment of your children. If you and your spouse cannot come to an agreement of a fair and reasonable parenting plan, the court will determine one for you. Still, you are able to influence the court’s determination through organized documentation that you envision for the best interest of your child.
Massachusetts recognizes two types of custody, and their definitions can be found in the Massachusetts General Laws (Mass. Gen. Laws Ch. 208, § 31): Legal Custody and Physical Custody. Here are some examples of the types of custody arrangement that can occur:
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 practice.
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 only 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’s frequent and continued contact with both parents.
Provided there are not any extenuating circumstances that would be harmful or detrimental to the health, well-being, and happiness of the child, the court favors parents to share joint legal custody and joint physical custody. The court’s reasoning stems from its belief that such parenting plans are considered to be in the child's best interests and awards custody accordingly.
Massachusetts’ law strongly supports that a child benefits greatly from having both parents actively involved in his or her life. However, the ideal in Massachusetts is not always ideal with the real lives of its citizens.
When a parenting plan fails, the at-fault parent may be in contempt of the parenting plan that was ordered by the court. Contempt is the intentional disobedience of a court order.
Violating a parenting plan may lead to contempt in the following instances:
- one parent refuses to allow visitation stated in the parenting plan, or
- one parent will not return the child to the other at the end of visitation, or
- one parent fails to make reasonable efforts to require a child to visit the other parent at the times stated in the parenting plan.
Contempt can happen by action, such as violating a restraining order, or by failure to act, such as not paying ordered child support or spousal maintenance. There must be evidence that the violation was in bad faith or there must be evidence that the person violating the plan engaged in intentional misconduct or the court must find that prior sanctions have not led to compliance with the order. The court assumes someone refuses to perform a duty in the parenting plan in bad faith. The law presumes you are able to obey the parenting plan. If you do not obey it, you must show you are unable to obey it or you have a reasonable excuse.
However, every violation of a parenting plan is not necessarily found by the judge to be in contempt. The civil contempt standard in Massachusetts requires a clear and unequivocal court order (fair notice of the court’s directive) and clear and unequivocal disobedience (undoubted disobeyance) (Sachs v. Sachs,53 Mass App. Ct. 765).
Once parenting plans start to be subjected to violations by the custodial parent, it is best to go to court immediately for enforcement of the original parenting plan. Court intervention is necessary because inaction in the presence of contempt empowers additional contempt upon which the parenting plan will continue to breakdown. Further, delaying the legal enforcement of your parenting plan violations directly affects your children, as they will soon become subject to neglect of the plan.
If violations progress even after you have gone to court for enforcement, each detail should be documented and additional complaints should be filed to further show the court the pattern of parental plan violations that are not consistent with the child’s best interests and the original court order. If violations continue, the court will be forced to evaluate the custodial placement of the children to ensure their best interests are being met by the plan in place.