USA – MASSACHUSETTS LAW AND PRACTICE Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
ily Court has jurisdiction to enter court orders addressing these issues after considering the child(ren)’s best interests. When parties are gen - erally unable to agree on these important issues, judges will consider awarding one of the parties sole legal custody, thereby empowering one par - ty to make these decisions on behalf of the child without the other party having any legal input. High-conflict child custody cases often require children to be more involved in the process and, depending upon the child’s age, the child’s input can be quite significant to the court when determining the child’s best interests. Generally, courts do not favour or look to children testify - ing in court. It is not technically prohibited but instead of a child testifying in court, a guard - ian ad litem will generally be appointed by the judge and that person will conduct an investiga - tion (including child interviews and observations) and report back to the court in a comprehen - sive written report that the court can consider in determining the resolution of the issues at hand. In high-conflict child custody cases, there are often allegations and concerns of parental alienation or parental marginalisation. Courts are sensitive to these family dynamics and have the authority to: • order therapeutic interventions (ie, family therapy, supervised parenting time, individual therapy); • order changes in physical custody; and • issue monetary sanctions for non-compliance with court orders. 3.4 ADR ADR mechanisms are resources that parties and attorneys often look to in order to help resolve disagreements in a divorce or a custodial case that involve children.
Recently, all 14 divisions of the Massachusetts Probate and Family Court have implemented the Pathways Case Management Initiative (“Path - ways”), a case management process aimed to promote timely and effective resolution of dis - putes. When filing actions seeking to modify a child support order or provisions of a parenting plan, most litigants, even those who are rep - resented by counsel, should expect their case to be directed to Pathways. In many cases, a litigant will participate in two Pathways “steps” before appearing in front of a judge. Many litigants look to mediation and concilia - tion before bringing a contested issue to court. In these forums, a neutral third party trained in dispute resolution will mediate or conciliate the case. These neutrals are often retired Probate and Family Court judges or attorneys with expe - rience in the family law arena. Parties participate in these processes alone or with their attorneys, and can expect to spend anywhere between half a day to multiple days caucusing and negotiat - ing in order to reach an agreement. If an agreement is struck, the parties will often incorporate the terms into a full-fledged separa - tion agreement that eventually is filed with the Probate and Family Court. After that, assuming the proper procedure is met, it becomes a judg - ment of divorce that is enforceable by the court. As noted in 2.9 Alternative Dispute Resolution (ADR) , it is important to note that mediation and conciliation processes are confidential and vol - untary. Parties are not compelled to reach an agreement and are bound not to disclose offers or settlement postures in court should the con - ciliation or mediation process fail. This promotes a candid discussion where parties are free to negotiate without concern that their settlement
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