Divorce Mediation Blog

House Bill No. 3091: An Act to Expedite Care and Custody of Minor Children Modification Proceedings

Wednesday, July 05, 2017

Representative Markey of the 9th Bristol District has filed a bill to permit modification of a judgment on child care and custody matters only, without the need to file a new action. It contains provisions for a motion filing fee, preliminary hearing and discovery. The bill provides for evidentiary hearings, but only if requested by a party or set by the court as an exercise of discretion. Temporary orders may enter, mirroring the standards of M.G.L., ch. 208, §28.

We wonder why this bill and why now? It dispenses with the due process requirement of a modification complaint and encourages expedited proceedings, but is that a good idea? Current practice requires a new modification action, but it permits temporary orders and mandates a case management conference at which the court may enter expedient procedural orders that regulate discovery. So, what is new, really?

We presume that the drafters believe that child custody matters require a faster track than other matters involving child support and alimony. But the bill begs two questions: is this really an improvement; and it is good to make custody proceedings a little bit easier to pursue? The answers, in our view are “not really” and “not necessarily.”

There is no doubt that family law proceedings generally take too long and cost too much. But cherry-picking custody cases does not cure these manifest problems, and it may just encourage heedless litigation. Research shows that the most damaging part of post-divorce custody is parental failure to agree on a parenting plan, and continued fighting. Making custody modification even a little bit easier may just encourage more custody modification litigation, which, as a phenomenon, benefits only lawyers.

If permitting judgment modifications by motion, as some states do permit, on the theory that any custody or support matter is technically a continuing matter until terminus, then it should be part of a broader reform of all family law statutes. But, singling out custody matters strikes us as symbolic at best while encouraging litigious parenting.

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