CHAPTER 9: CHILD CUSTODY
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Be aware also that the neutral expert will likely want to speak to the child and may want to observe you with the
child and the other parent with the child. The neutral expert will likely ask you for a list of “collaterals” to speak
with—collaterals are people who will have personal knowledge of the issues of your case. The neutral expert will
probably speak with two or three of these collaterals from each party, and may also speak to others without your
prior knowledge.
If you are not clear about exactly what the neutral expert is supposed to be doing on your case, make sure you find out.
The judge has most likely issued an appointment order stating what the neutral expert is supposed to be doing and
identifying issues to be looked into. If you are still not clear about what the neutral expert is supposed to evaluate, it
is possible that the neutral expert is not clear about it either. There may be some issues that you consider important for
the neutral expert to look into that he or she may not consider to be within the scope of his or her appointment. If this
happens, consider making another motion for temporary orders asking for a clarification of the neutral expert’s role.
Remember that although judges rely heavily on these reports, the neutral expert is not the final decision maker—the
judge is. You have the right to review the report of the custody evaluator before the hearing or trial so that you can
challenge the report. Duro v. Duro, 392 Mass. 574, 580 (1984).
If you have not retained an attorney up until this point, once a child custody evaluation is ordered, consider retaining
one. The stakes are high at this point: the judge has indicated that there is a serious question as to whom the child
should live with, and whether and how visitation should take place. You have important rights to confidentiality and
rights to challenge the expert that you may not be able to exercise effectively without an attorney.
ATTORNEYS REPRESENTING CHILDREN
In 2013, Massachusetts started the Attorneys Representing Children (ARC) program. Attorneys volunteer to be
appointed by judges in custody or parenting disputes to represent a child in the case. It is important to remember that
ARC attorneys are not neutrals; they are appointed for the purpose of identifying and expressing the child’s point of
view. This is a role that differs significantly from a GAL or other neutral expert, because instead of being appointed
to investigate what is in the child’s best interest, the ARC attorney is tasked with learning the child’s preferences
and the reasons behind them, and then presenting those preferences to the court. When a child is preverbal or
otherwise is unable to express a position to the ARC attorney, the ARC attorney might use “substituted judgment”
and try to assess what is in the best interest of the child. In addition, an expert is usually required to write a report,
and can be called to testify at trial. An ARC attorney, on the other hand, is an advocate who cannot be called to
testify but can question witnesses at trial.
HOW CAN I CHANGE A PARENTING PLAN?
As noted previously, temporary orders may be changed as the circumstances of the parties change (e.g., work
schedules change, an addicted parent successfully maintains sobriety, a parent-child bond is rebuilt through
supported or supervised parenting time, there are incidents of violence against you, the children, or any other
person) and as information is brought to the court (e.g., a GAL report identifies a significant safety concern in one of
the parents’ homes). If you want to make changes to a parenting plan that was established through temporary orders,
you can file a motion for further temporary orders. A temporary custody order may be changed if the change is in
the child’s best interest. The temporary order may also be changed after a trial—the final hearing before the judge—
in accordance with the best interest of the child.
A parenting plan issued as a final judgment in a paternity, divorce, or separate support matter can only be changed
by filing a complaint for modification. See Exhibit 16A. You must show the court that there has been a significant
change in the circumstances that make the earlier judgment no longer in the child’s best interest. G.L. c. 208, § 28;
see O’Brien v. O’Brien, 347 Mass. 765 (1964); G.L. c. 208, § 31. The change must have occurred after the court
made its order, Breton v. Breton, 332 Mass. 317 (1955); modification is not available just because you do not like
the judgment.
Because judges believe that stability is usually in a child’s best interest, and because a judgment enters only upon a
final agreement reached by the parties or after a trial, they will be cautious about changing custody or making
significant changes to a parenting schedule. The fact that there has been a change in the custodial parent’s residence,