Mediation of Custody in Massachusetts


Custody determinations are extremely challenging during the divorce process. Emotions are high as parents work, struggle and sometimes fight to decide the best living arrangements for their children. Custody mediation is meant to ease the contention of the process, bringing both parents together in a non-confrontational setting to calmly discuss the needs of the children and create a custody arrangement that is satisfactory to all involved.

In the state of Massachusetts, several custody determinations are made:

  • Physical Custody – This is the determination of where the children will physically live on a daily basis. There are two types of physical custody:
    • Sole Physical Custody – One parent is given sole custody of the children. That parent becomes the custodial parent and primary caregiver. The children live in the parent’s home for the majority of the time. Absent an extenuating circumstance, the non-custodial parent is given regularly scheduled visitations with the children.
    • Shared Physical Custody – Under this arrangement, the two parents share physical custody of the child or children equally. This can occur in a number of ways. If the parents live in close proximity, the children may live with one parent for a week and the other parent the next week. This may also result in a schedule where the children spend every weekend and the entire summer with one parent. With shared physical custody, both parents are custodial parents and primary caregivers.
  • Legal Custody – Issues such as schooling and medical treatments must be made, even after divorce. This decision determines which parent will make the major decisions in the child’s life. There are also two types of legal custody:
    • Shared Legal Custody – The parents agree to make major decisions together. However, even in this scenario, one parent is usually given the deciding “vote” in case a mutually agreeable decision is not reached. This is the most common form of legal custody in divorce matters
    • Sole Legal Custody – One parent makes all major life decisions for the child. No input from the other parent is required, but many custody arrangements include language encouraging the sole legal guardian to solicit input from the other parent.

Preparing for Mediation

Even though mediation is designed to alleviate some of the pressures of a court proceeding, it can still cause some stress, if you do not go into it with the right mindset. The Livestrong organization provides divorcing parties with several tips in preparation for a custody mediation.

  • Come ready to listen – Enter the mediation with a willingness to listen to your spouse, as well as the mediator. You and your spouse may not communicate well, so this may prove difficult. Trust in your mediator and know that you will receive an opportunity to talk, but your communication is much more productive if you have truly listened to the concerns of your spouse.
  • Consider your child’s needs over your own – Custody determinations are about the best interest of the child, not the parents. Be prepared to put your personal feelings to the side in consideration of your child’s needs.
  • Keep an open mind – Mediation is about compromise. Be willing to consider solutions that may require you to step outside of your comfort zone.

If you and your spouse want to mediate the custody of your children, contact the Law Office of Martin Murphy LLC at (781) 285-8989 for a free consultation today. Offering mediation services and collaborative representation, the Law Office of Martin Murphy LLC stands apart from other divorce attorneys.

Photo Credit: thejbird via Compfight cc

The Right Parenting Plan

The kids heading off on a Disney cruise through the Bahamas with one parent may seem completely reasonable, but how about the other parent wanting to visit relatives with the kids…. in Somalia?

International travel is one of the many areas in a parenting plan where parents have to be particularly thoughtful and considerate of the future. Parents headed through a divorce might want to consider this and other important issues.

Drop Off Duty
Which parent is responsible for dropping off the kids? What happens when the kids are intentionally running late? One way to avoid the “waiting in the driveway” syndrome is to have the parent with the kids be responsible for delivering them to the other parent.

Time Off vs. Time With
In today’s economy with both parents usually working, the primary or custodial parent is often looking for some “time off.” Making sure the other parent lives up to his or her allotted time allows for the custodial parent to rest and recharge their batteries.

Sick Days, Doctors’ Appointments and No Power Days
Providing for “surprise days” and scheduled doctors’ appointments will make for a better parenting plan.

She’s a Teenager!
Preparing a flexible parenting plan that allows for the needs of a sociable teenager is wise. At the same time, it is equally important that the parents try to have a consistent voice about what is permitted behavior and what is not!

Family Traditions
If your spouse’s family has a tradition of spending the 4th of July with multi-generations in New Hampshire, are you sure you want to demand alternating all such holidays? At the same time, divorce can be all about starting new traditions with your kids. Finding the best parenting plan for your family is an important part of the divorce process.

Mediation and Collaborative Law can provide you with the best opportunity to come up with the best plan for your family. If you have any questions on finding the right parenting plan, please contact my office for a free process presentation.

Martin Murphy, Esq. is a collaborative attorney and seasoned mediator. He is dedicated to using the principles and benefits of mediation and collaborative law in the general representation of businesses, their owners and in helping families facing divorce, child custody and other family law issues. The Law Office of Martin Murphy, LLC located in Norwood MA, serves clients in the surrounding communities including Attleboro, Canton, Foxboro, Franklin, Mansfield, Medfield, Medway, Millis, Norfolk, North Attleboro, Plainville, Sharon, Walpole, Westwood, and Wrentham., Marty can be reached at

Every Minute Counts

My wife and I enjoy the HBO series called Nurse Jackie. The show stars Edie Falco who plays the role of Jackie Peyton. Jackie is a nurse who suffers from drug addiction, and the show demonstrates the impact that the addiction has on her career, on her family, and on her marriage.


This week’s show focused on Jackie’s response to being served papers for divorce. In one scene Jackie meets with her new divorce attorney along with her friend Dr. O’Hara. The scene takes place in a conference room with world-class views of the New York City skyline. The attorney makes a number of jokes about her $700 plus rate and how “every minute counts”


During the discussion Jackie is pressed to recall violent events in her marriage that were the fault of her husband. While at first refusing to acknowledge any such events, Jackie is pressed by her attorney and Dr. O’Hara to make sure she comes up with some since she, as a known drug addict, should try to elevate her position in relationship to her husband’s.


Jackie returns to work, and with the assistance of Dr. O’Hara recalls an instance where her husband expressed his anger in a violent way to the man with whom Jackie was having an affair.  In both scenes Jackie’s hesitation to disparage her husband may be a reflection of her concern for her two daughters and how this violent characterization of their father will affect them.


In the end, it is the process they have chosen that creates this stress.  Litigation is adversarial, and characterization or character assassination can often be part of the process.  In cases where only two spouses are involved, they end up being hurt, angry or frustrated.  In cases like Jackie’s where children are involved, the collateral damage can be devastating.


Jackie is working hard on her sobriety.  Both of the parents on the show seem to be working towards keeping the best interests of their children in focus.  Where the divorce process will go and what the detrimental impact will be to the family is yet unknown.


For most families going through divorce, the impacts and struggles will not end with a show or a season.  Making the best choice of divorce process will most likely impact the rest of someone’s life.  It will definitely impact the children of a marriage going through divorce.


Martin Murphy, Esq. is a collaborative attorney and seasoned mediator. He is dedicated to using the principles and benefits of mediation and collaborative law in the general representation of businesses, their owners and in helping families facing divorce, child custody and other family law issues.  The Law Office of Martin Murphy, LLC located in Norwood MA, serves clients in the surrounding communities including Attleboro, Canton, Foxboro, Franklin, Mansfield, Medfield, Medway, Millis, Norfolk, North Attleboro, Plainville, Sharon, Walpole, Westwood, and Wrentham., Marty can be reached at



What is Convenience?

What Is Convenience?

When one Googles “Convenience of Litigation,” several sites that reference a “convenience store in litigation” are presented- that isn’t exactly what I am searching for.  However, when one Googles “Convenience of Mediation” or  “Convenience of Collaborative Law,” many sites appear that do indeed explain how mediation or Collaborative Law can be considered convenient for a client.  Why is this?  Simply put, litigation, with its delays and often inconvenient scheduling, is not typically viewed as convenient.  Mediation and Collaborative Law are positioned to provide clients the result they seek through a far more convenient process.


A few months ago I met a couple that came to my office for a free process presentation on a Thursday. They decided to mediate their divorce with my office, and I was able to accommodate them the following Monday evening.  On Tuesday I drafted documents and met with them Tuesday afternoon to finalize and notarize. The agreement was presented to and approved by a judge at the couple’s 1A hearing that Wednesday..   While this story and its timetable is not typical, it clearly demonstrates the potential convenience aspect of Mediation.


Last year, I mediated a case for a couple that lasted ten months. While this appears to be in stark contrast to the expediency of the other case, the longer mediation time was the choice for this couple.  Once we initially met and went over the parameters of the mediation, they decided that they would wait to iron out details until their house was sold. During that time we had a few meetings to cover additional matters, and once the house was sold the final agreement was crafted.  Their mediation was convenient for them because its timing met their needs and timetable.


In the last couple of weeks, I have completed two different mediations where one of the parties was out of state for the mediation sessions.  While I prefer to mediate in person, sometimes the logistic and financial realities require more creative solutions.  Conference calls, video conferencing and secure document sharing can assist in providing a convenient mediation format.


I’ve finished up a Collaborative Law case where one of the parties had a fair level of anxiety over the scheduling of the meetings and the potential impact on their profession.  The team addressed this early on and was able to devise a schedule that removed that anxiety from the equation.


Going through a divorce is a stressful situation in and of itself.  Convenience of the process would certainly lend itself to being less stressful.  Choosing mediation or Collaborative Law as a resolution process is a way to minimize that stress.  If you would like to learn more about the benefits of mediation and Collaborative Law, contact my office today.


Located in Norwood, MA, The Law Office of Martin Murphy, LLC assists clients from the surrounding areas including Attleboro, Canton, Foxboro, Franklin, Mansfield, Medfield, Medway, Millis, Norfolk, North Attleboro, Plainville, Sharon, Walpole, Westwood, and Wrentham.  Contact the office today to determine how the principles and benefits of mediation and Collaborative Law may be helpful for you.

The Challenges of Removal

This summer I have had the benefit of a hard working and talented intern in my office.  Liz Sexton has completed her first year at the New England School of Law.  She jumped at the opportunity to write a blog entry for my site and I am grateful for her first entry below.

Deciding with whom a child will live is a difficult decision for both courts and parents.  However, it is even more challenging when the custodial parent wants to move with the child out of the Commonwealth.  Determining what is in the best interests of the child is paramount to a court’s decision allowing a minor child to depart with the custodial parent to another state.  What does the court consider in deciding to grant the removal of a minor child?

Massachusetts General Law c. 208, section 30 states that a minor child cannot be removed without the consent of both parents, “unless the court upon cause shown otherwise orders.”   Case law in the area of child custody and removal has grown since Yannas in 1985, which identified the “real advantage standard” in determining what is in the best interests of a child.

The custodial parent must establish a good, sincere reason for wanting to move from Massachusetts.  Reasons usually include an improved financial situation, an opportunity for employment, and an increased sense of personal security.  A custodial parent who seeks to move to diminish the relationship between the child and the non-custodial parent or other relatives, may fall short of establishing a good, sincere reason for the move.

Once a good, sincere reason is established, none of the relevant factors in deciding the best interests of the child become controlling but must be looked at collectively. The factors considered by the court include the interests of the noncustodial parent, the affect of his or her relationship with the child, the cost of visiting the child who may live far away, the affect on the noncustodial parents role in the child’s life, and the impact of the move on the child’s emotional, physical and developmental needs.

The judge has broad discretion in determining if removal is appropriate, which means that the judge determines whether the child’s life will be improved by the move and the adverse effects on the child’s quality of life because of the move. In the end, it is the judge’s decision, after objectively examining all relevant factors, to determine whether removal is appropriate.


In The Best Interests of the Children

Couples and families that are facing divorce are often full of questions about what their reconstituted family will look like in the future. All those involved are concerned with how the courts and the law will impact the child custody and child support issues they face.

When a judge makes decisions regarding the custody of children in a divorce, she will apply the standard of what will promote the child’s best interest. Massachusetts General Law c. 208, section 31 states that “the happiness and welfare of the children shall determine their custody.” Appellate Court decisions have confirmed that judges have broad discretion in these matters. A variety of factors may be considered by a judge when formulating decisions regarding custody including the age, sex and developmental stage of the child, each parent’s home environment, and the judge’s own observations of the parents.

Judges may make determinations regarding legal custody that provides authority for making the major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development. The judge will also make a determination of physical custody that provides for where the child will reside and which parent will have supervision over the child.

Massachusetts General Law c. 208, section 28 provides for child support and states that there shall be a rebuttable presumption that the amount of the order, which would result from the application of the guidelines, is the appropriate amount of child support to be ordered. The Chief Justice for Administration and Management of the Trial Court puts forth the guidelines referred to in c. 208, section 28.

The Family Court also has a standing order that requires parents who are party to a divorce action to participate in a mandatory parenting class within sixty days of the petition or complaint for divorce being filed. Failure to comply with this mandatory deadline may result in penalties assessed by the court.

Mandatory deadlines, complex guidelines, and broad judicial discretion in matters of physical and legal custody can all provide heightened levels of stress for a couple going through one of the most traumatic processes in their lives.

Mediation and Collaborative Law both provide the opportunity for divorcing couples to reconstitute their family in a confidential, cost effective and more convenient process. In either process, the pressure of some of the arbitrary deadlines can be removed. While the child support guidelines will have to be followed regardless of the process chosen, in either mediation or Collaborative Law, they can be explained and analyzed in a thoughtful and less stressful environment.

Finally, nothing is more important to a loving parent than the legal and physical custody of their child. Providing an opportunity to fully explore the best interests of the child in the opinion of the child’s parents is paramount. Mediation and the Collaborative Law process provide the best environments in which these decisions can be made.

For more information on how mediation or Collaborative Law can help your family with issues of child custody and child support, contact my office.