Joint Legal Custody

Fleshing Out Best Interest Standard.  A recent SJC opinion made headlines by finding that a California registered domestic partnership was equivalent to a marriage, and that the biological mother and her “partner” were both parents to the child born during their partnership through in vitro fertilization.  The case, too, contains an excellent review of the standards of primary physical custody – which fleshes out somewhat the amorphous “best interests” standard.   In assessing best interests, the SJC reminds us, GL c.208 s.31 requires a court to consider “whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.” The judge also must also consider, among other things, the relative stability of the homes; whether one parent seeks to undermine the relationship a child has with another parent; and a parent’s ability to subordinate his/her needs to those of the children.  Again, it’s nothing new, but a convenient reminder that there’s more to the standard than “best interests.” Hunter v. Rose, 2012 Mass. LEXIS 889 (September 28, 2012)
 
Appeals Court Overturns Joint Legal Custody Award.  It’s not often that the Appeals Court overturns a Probate Court judgment of joint legal custody, which is why this case caught my attention.  The Probate judge acknowledged that there was great conflict between the parties but found they “were not totally incapable of maintaining a cooperative relationship.”  The conflict, according to the judge, was primarily as a result of poor communication “as between husband and wife” and not regarding the upbringing of the children.  Elsewhere in the judgment, the judge stated s/he was “hopeful” that once the divorce was final, the parties would “slowly develop a relationship as responsible parents with a goal toward communication between them and in the best interests of the children.”
 
Upon the mother’s appeal, the appellate court reversed, noting that the judge’s findings did not support the judgment – particularly the finding that the parties disagree about the health treatment of the children.  The children, according to the judge’s findings, had “substantial medical issues” and the husband “has a fear of doctors and medical facilities.”  Critically, the father continuously disagreed with the recommended medical treatment of the children.  Another example: despite his daughter’s severe dog allergies, and over the objection of his daughter’s doctor, he allowed a live-in girlfriend to keep a dog in his home when the children visited. Considering these findings, the Appeals Court found that the Probate Judge’s award of joint legal custody was an “abuse of discretion” and reversed. T.D. v. D.D., 2012 Mass.App.Unpub. LEXIS 1022 (October 1, 2012) (Unpublished)