HOUSE DOCKET, NO. 3194        FILED ON: 1/21/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2684

The Commonwealth of Massachusetts

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PRESENTED BY:

John W. Scibak

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act supporting children and strengthening families.

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PETITION OF:

HOUSE DOCKET, NO. 3194        FILED ON: 1/21/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2684

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act supporting children and strengthening families.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Section 31 of chapter 208 of the General Laws, as appearing in the most recent edition, is hereby amended by striking out, in the sixth paragraph, the words “When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.”.

SECTION 2.  Section 31 of said chapter 208, as so appearing, is hereby further amended by striking out the seventh, eighth, ninth and tenth paragraphs beginning with the words “Upon the filing of an action . . .” and ending with the words “except as provided for in section 31A.” and inserting in place thereof the following paragraph:-

In furtherance of the public policy that the happiness and welfare of children is enhanced by frequent and continuing contact with both of their parents, upon the filing of an action in accordance with this section, section 28 of this chapter or section 32 of chapter 209, the parents shall have temporary shared legal and physical custody of any minor child of the parties.  In making an order or judgment relative to the custody of any minor child there shall be a rebuttable presumption that the parents shall have shared legal and physical custody of the minor child.  Such presumption may be rebutted by either party by a preponderance of the evidence that the other parent has engaged in a pattern or serious incident of abuse or neglect of the minor child.  The court may then enter an order or judgment for sole legal or physical custody for one parent, if the court makes written findings setting forth the specific facts that support a determination that the child would be harmed as a result of shared legal or physical custody and that shared legal or physical custody is not in the best interest of the child.  In making any order or judgment concerning the parenting schedule of each parent with any minor child, the rights of the parents shall be equal, absent emergency, abuse or neglect of the child by one of the parents.  The court shall maximize the amount of time the child spends with each parent, to the extent possible.  A change in the availability of one or both parents to parent any minor child or a change in the developmental stage of any minor child shall be presumed to constitute a material and substantial change in circumstances for the purposes of a complaint or counterclaim seeking to modify a parenting schedule or parenting plan incorporated into a judgment of divorce.  This section shall not modify section 31A of chapter 208 of the General Laws.

SECTION 3.  Section 31 of said chapter 208, as so appearing, is hereby further amended, in the twelfth paragraph, by striking out, in the third sentence, after the words “sole legal” the word “and” and inserting in place thereof the words:- or sole.

SECTION 4.  Section 31 of said chapter 208, as so appearing, is hereby further amended, in the twelfth paragraph, by inserting after the words “to either parent”, at the end of the third sentence, the following words:- if the court makes written findings setting forth the specific facts that support a determination that the child would be harmed as a result of shared legal or physical custody and that shared legal or physical custody is not in the best interest of the child.

SECTION 5.  Section 31 of said chapter 208, as so appearing, is hereby further amended, in the twelfth paragraph, by inserting after the words “support of the child.”, at the end of the paragraph, the following words:- The failure of one or both parties, however, to submit a shared custody implementation plan for trial shall not diminish the presumption of joint legal or physical custody, nor shall it affect the child’s right or the parents’ rights to frequent and continuing contact between the child and each parent.

SECTION 6.  Section 31 of said chapter 208, as so appearing, is hereby further amended by striking out the fourteenth paragraph beginning with the words “An award of shared legal or physical custody . . .” and ending with the words “warranting modification.” and inserting in place thereof the following paragraph:-

If the court orders shared physical custody, the court shall at that time issue a child support order or revise its previous order, as appropriate to the circumstances.

SECTION 7.  Section 31 of said chapter 208, as so appearing, is hereby further amended by inserting, after the word “unless”, in the last paragraph, the following words:- the court makes written findings setting forth the specific facts that support a determination that the child would be harmed as a result of implementation of the agreement and” before the words “specific findings are made by the court indicating that such an order would not be in the best interests of the children.”