There are two components of legal custody: (1) access to information about minor children from doctors, teachers, and other professionals involved with them and (2) involvement in decision-making about significant matters in their lives, such as medical treatment and educational programs. In Massachusetts, the presumption is that parents will share legal custody but this may not be appropriate in certain situations such as those involving physical or emotional abuse of either the other parent or the children or where the parents have demonstrated an inability to communicate and cooperate with each other in promoting the best interest of their children.
Each parent may travel with minor children away from home to take vacations, visit with relatives, make day and weekend trips, shop, and go on other similar excursions during his or her scheduled time with them. If any such travel will exceed 24 hours, it is a good idea that the parent taking the children inform the other parent of the location(s) where the children will be staying and the telephone number(s) where they may be contacted.
Under the law, however, a parent may not permanently remove minor children from Massachusetts without the express permission of the other parent or a court order. This issue is a particularly difficult one for all concerned. On one hand, a parent may lose a job or be transferred, remarry, or have some other event occur which makes relocation desirable if not necessary. On the other hand, the other parent’s relationship with the children would be dramatically altered if relocation occurred. The appellate courts in Massachusetts have dealt with this issue repeatedly in recent years, indicative of our mobile society and the critical importance of this issue to the relationship between parent and child. It is critical to obtain legal advice from an experienced family law attorney as soon as possible to protect your rights.
Traditionally, parenting plans have involved physical custody with visitation – where minor children resided with a “custodial parent” and saw a “visiting parent” on a regular basis. Recently, however, many courts have moved in the direction of defining parental rights in the context of a parenting plan, thus avoiding the emotionally charged labels of “custodial” and “visiting”. Establishing a parenting plan thus becomes a question of scheduling rather than of defining (either implicitly or explicitly) one parent as primary to the welfare of the children and the other as secondary; this shift in emphasis reflects the growing realization the children are more likely to thrive when both parents are actively involved in their lives.
Parenting plans can be as varied as the families which observe them. Although one size does not necessarily fit all, many plans involve minor children being with one parent during the school week, seeing the other parent on one or more midweek evenings, and spending alternating weekends with each parent. Other plans may vary significantly from this theme, depending on the work and other commitments of the parents and the needs and desires of the children. The determining factor is what is best for the children rather than what the parents want for themselves. For obvious reasons, the parenting arrangement observed by the family while intact can have a significant impact on the parenting plan adopted in a family law case, although it is subject to change both during the initial case and later, if there is a significant change in circumstances.
In addition to the routine parenting plan for minor children, arrangements are usually made in family law cases to accommodate holidays, vacations, and special events. Although parents decide to make these arrangements as such occasions arise, it is probably better to define them at the outset to prevent disagreements which can make planning difficult; as time passes and lives change, what seemed like an easy decision about where the children will spend a particular holiday or vacation can become problematic.
Holidays and vacation periods should be allocated between parents in a clearly defined manner. This can involve specifying how major holidays will be shared and minor ones will be alternated. In addition, school vacation periods should be divided between the parents.
The point is to provide parents with a schedule based on which they can make plans for themselves and their children. It is important, however, to remember that parents always have the freedom to alter this (or any other) schedule by agreement without going to court unless a change needs to be made permanent.
Arrangements should also be made for special occasions, such as Granny’s 95th birthday party. By their nature, such occasions often cannot be predicted but the parties should agree that they are important to minor children and appropriate adjustments to the routine parenting plan will be made to accommodate them.