Category Archives: Custody

Increasing Trend:Shared Physical Custody

As traditional gender roles become more outdated and both parents head into the workforce, shared (or joint) physical custody has become more common. Well, what does this mean? In order to delve further into this topic, you must first understand the differences between legal and physical custody (See my previous blog defining legal and physical custody http://wp.me/p3fUOK-14).

In the Commonwealth of Massachusetts, mothers and fathers[i] have equal rights in custody cases. It is a common misconception that mothers are more likely to obtain custody of the children during divorce or custody proceedings. This inaccurate assumption stems from the antiquated Tender Years Doctrine, which is no longer utilized by the courts. The Tender Years Doctrine established a presumption that mothers should have custody of younger children based upon the notion that young children must to stay close to their mothers for love and support. This was also during a time men and women more commonly conformed to traditional gender roles.

Currently under Massachusetts Law, there is no gender preference given to a parent based solely upon gender. Modern families are finding that the “new normal” consists of two separate households, two sets of expenses, and two fully employed parents.  Thus, more parents are finding that shared physical custody can be beneficial to not only father (who would like to enjoy more parenting time), but also to mother (who would like for father to share in the responsibility of parenting duties). However, in order for a shared physical custody parenting plan to succeed, parents must be able to communicate with each other in a healthy, productive manner. The parties must also take into consideration what is in the best interest of the children. As well as, whether it is possible to establish a stable schedule with few parenting exchanges. Therefore, in order for this parenting arrangment to succeed a custody arrangement must be thoughtfully drafted and may not be appropriate in most cases.


[i] When a child is born to parents who are not married, fathers must first establish paternity prior to asserting their rights as a parent. This differs from a child born to married parents, as the father’s parental rights are presumed to be established.

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2013 Revised Child Support Guidelines

After much anticipation, discussion, and debate, the revised Massachusetts Child Support Guidelines have been released and became effective as of August 1, 2013. The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes to the existing Child Support Guidelines.  While some changes are seemingly minor, others represent new or modified provisions.  The most significant changes to note include:

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations;
  • Availability of employment at the attributed income level must be considered in attribution of income cases;
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship;
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate;
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000;
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third;
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any;
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013); and
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

The change in guidelines comes with a revised worksheet to calculate child support and a form for Judges to use when they decide to enter an order that is not in strict compliance with the Guidelines. While information is readily available online for parents and guardians, an experienced divorce lawyer can help individuals understand their rights and how they may be affected by the new guidelines.

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Merger vs. Survival

Prior to signing your divorce agreement, you must understand this legal distinction.

The terms set forth in every divorce agreement (or separation agreement) either “merge” or “survive” a Judgment of Divorce. This legal distinction will determine whether certain portions of your agreement (e.g. alimony, life insurance, and health insurance) may be modified or changed in the future. The language used will ultimately determine whether the agreement in front of you is fair and reasonable.

Unfortunately, individuals who represent themselves in divorce proceedings often do not completely understand the effect this language may have years down the road. I have witnessed on several occasions, a judge explaining this distinction to pro se (unrepresented) parties minutes before they are enter into a binding agreement.

This is one reason it is imperative to have an attorney review your agreement and thoroughly explain the ramifications. If you spend now, it will save you later!!

What does the term “Merger” mean?

When a portion of the separation agreement merges then that portion of the agreement is incorporated into the Judgment of Divorce and remains modifiable by the court,  if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the agreement.

Short answer:  This portion may be modified in the future!

What does the term “Survival” mean?

If a term of the Separation Agreement survives then this means that said term is not incorporated with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is not modifiable.

Short answer: This portion may not be modified in the future!

It is important to note that a “survived” agreement does not prevent modification of most child-related issues. Even if the parties’ separation agreement was intended to survive the judgment of divorce, a modification seeking a change in most child-related provisions may be modified by the court. In the alternative and absent fraud, property division cannot be modified by the court.

For further information regarding merger and survival and its impact on your divorce agreements, please do not hesitate to contact my office at (978) 388-1787.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and e-mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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What is the difference between legal and physical custody?

In accordance with Massachusetts General Laws c. 208, § 31, legal and physical custody are defined as follows:

  • Sole legal custody:  one parent shall have 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:  continued mutual responsibility and involvement by both parents in major decisions regarding the children’s welfare including matters of education, medical care and emotional, moral and religious development.
  •  Sole physical custody:  a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interests of the child.
  •  Shared physical custody:  a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

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