A big problem with litigating a custody arrangement are the unknown consequences of asking a judge to determine what’s best for your child. A judge can consider an almost endless variety of child-related factors when determining custody and parenting time. The “best interest of the child” standard is incredibly broad and vague.
In a 2017 Appeals Court case, the probate and family court judge’s ruling giving primary physical custody to a parent who had only recently had supervised visitation was sent back for a new trial. The Appeals Court ruled that the judge’s findings were unclear, and further noted that even without a definitive “list” of criteria for judges to consider in custody cases, relevant factors a judge to review include:
[C]onsideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child’s life, the decision-making capabilities of each parent to address the child’s needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child.
This particular case also involved recommendations from a psychologist who recommended the continuation of supervised visits with the parent who was granted custody. Although the Appeals Court clearly disagreed with the judge, the decision did not resolve the matter. Instead, the case was sent back down to the Probate and Family Court judge for further trial.
The case referenced above, Belanger v. Betanno (2017), also illustrates how long it can take for a probate and family court to resolve custody. This case kicked off in August of 2014 when a Complaint for Divorce was filed and the first motions heard. On September 16, 2016, the Judgment of Divorce entered. Thus, a decision was reached almost two years after the divorce was filed, and in the decision, the parent who received only supervised parenting time throughout the entire pending case was awarded primary custody of the child.
The parent who lost custody of the child quickly filed an appeal in October of 2016, and the laborious appeals process began. After one year of additional court filings, brief submissions and an argument before a three-judge panel, the Appeals Court vacated the judgment and remand for a new trial before a different judge.
That’s right, a new trial. Three years and counting of litigation, and still no “winner” in sight. The Belanger case presents a somewhat extreme example, at least inasmuch as most cases do not involve such dramatic shifts in custody, with one parent going from supervised visits to primary custody back to supervised visits again. However, many litigated custody stretch on for years in a less dramatic fashion, as parents and children grind away in the slow churn of litigation. Would a case like Belanger be appropriate for mediation? Perhaps not, given the severity of allegations made by each parent. Nevertheless, every divorcing parent should be mindful of how a case like Belanger can remain unresolved in the court system for four or even five years.
Mediation accommodates the needs of each parent far better than litigation. Mediating parents are encouraged to look at the whole picture, and not just one factor, when creating the parenting schedule. Instead of encouraging parents to identify their opponents’ weaknesses and points of leverage, mediation focuses on identifying common goals. Flexibility by one parent is rewarded by flexibility from other. In tensely litigated cases, such shows of flexibility are often simply impossible.