Section 31. For
the purposes of this section, the
following words shall have the following
meaning unless the context requires
otherwise:
“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
child’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 interest 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.
In
making an order or judgment relative
to the custody of children, the
rights of the parents shall, in
the absence of misconduct, be held
to be equal, and the happiness and
welfare of the children shall determine
their custody. 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. (Note:
This is what generates lots of false
abuse charges and abuse of 209a
laws designed to protect BATTERED
women)
Upon the filing
of an action in accordance with
the provisions of this section,
section twenty-eight of this chapter,
or section thirty-two of chapter
two hundred and nine and until a
judgment on the merits is rendered,
absent emergency conditions, abuse
or neglect, the parents shall have
temporary shared legal custody of
any minor child of the marriage;
provided, however, that the judge
may enter an order for temporary
sole legal custody for one parent
if written findings are made that
such shared custody would not be
in the best interest of the child.
Nothing herein shall be construed
to create any presumption of temporary
shared physical custody.
In determining
whether temporary shared legal custody
would not be in the best interest
of the child, the court shall consider
all relevant facts including, but
not limited to, whether any member
of the family abuses alcohol or
other drugs or has deserted the
child and whether the parties have
a history of being able and willing
to cooperate in matters concerning
the child.
If, despite the
prior or current issuance of a restraining
order against one parent pursuant
to chapter two hundred and nine
A, the court orders shared legal
or physical custody either as a
temporary order or at a trial on
the merits, the court shall provide
written findings to support such
shared custody order.
There
shall be no presumption either in
favor of or against shared legal
or physical custody at the time
of the trial on the merits, except
as provided for in section 31A.
At
the trial on the merits, if the
issue of custody is contested and
either party seeks shared legal
or physical custody, the parties,
jointly or individually, shall submit
to the court at the trial a shared
custody implementation plan setting
forth the details of shared custody
including, but not limited to, the
child’s education; the child’s health
care; procedures for resolving disputes
between the parties with respect
to child-raising decisions and duties;
and the periods of time during which
each party will have the child reside
or visit with him, including holidays
and vacations, or the procedure
by which such periods of time shall
be determined.
At
the trial on the merits, the court
shall consider the shared custody
implementation plans submitted by
the parties. The court may
issue a shared legal and physical
custody order and, in conjunction
therewith, may accept the shared
custody implementation plan submitted
by either party or by the parties
jointly or may issue a plan modifying
the plan or plans submitted by the
parties. The court may also reject
the plan and issue a sole legal
and physical custody award to either
parent. A shared custody implementation
plan issued or accepted by the court
shall become part of the judgment
in the action, together with any
other appropriate custody orders
and orders regarding the responsibility
of the parties for the support of
the child.
Provisions regarding
shared custody contained in an agreement
executed by the parties and submitted
to the court for its approval that
addresses the details of shared
custody shall be deemed to constitute
a shared custody implementation
plan for purposes of this section.
An award of shared
legal or physical custody shall
not affect a parent’s responsibility
for child support. An order of shared
custody shall not constitute grounds
for modifying a support order absent
demonstrated economic impact that
is an otherwise sufficient basis
warranting modification.
The entry of an
order or judgment relative to the
custody of minor children shall
not negate or impede the ability
of the non-custodial parent to have
access to the academic, medical,
hospital or other health records
of the child, as he would have had
if the custody order or judgment
had not been entered; provided,
however, that if a court has issued
an order to vacate against the non-custodial
parent or an order prohibiting the
non-custodial parent from imposing
any restraint upon the personal
liberty of the other parent or if
nondisclosure of the present or
prior address of the child or a
party is necessary to ensure the
health, safety or welfare of such
child or party, the court may order
that any part of such record pertaining
to such address shall not be disclosed
to such non-custodial parent.
Where the parents
have reached an agreement providing
for the custody of the children,
the court may enter an order in
accordance with such agreement,
unless specific findings are made
by the court indicating that such
an order would not be in the best
interests of the children.