Tuesday, July 25, 2006

A House Divided - MA

A House Divided

The SJC's pivotal ruling on a joint custody case leaves a blended family caught in the middle and split in two

Excerpts:

Tristan and his 12-year-old brother, Spenser, are at the heart of a case the Supreme Judicial Court decided last week on the thorny question of whether a divorced parent with joint physical custody can move the children out of state.

The boys' mother, Betsy Shanley Coleman, who has a toddler by her second husband, wanted to return to her hometown of Bristol, N.H., where her new husband and his ex-wife share equal custody of their two sons. Shanley Coleman's ex-husband, James Mason, who lives in Nashua, N.H., wanted his sons, Tristan and Spenser, to stay in Chelmsford.

In its unanimous decision, the SJC upheld a 2003 family court ruling that ordered the boys to remain in Chelmsford schools and propelled Shanley Coleman to split her time between Chelmsford and Bristol, 90 miles apart, and sometimes rendezvous with her husband midway between the two towns.

The SJC, which had plucked the case from the docket of pending appeals, outlined a fundamental difference between cases in which one parent has physical custody and cases of joint custody. Although the well-being of a parent influences the well-being of the child, the SJC found, the benefit a parent may derive from moving carries considerably less weight in determining the children's best interests when custody is shared than when it is not.

``While a joint physical custody agreement remains in effect," Justice Judith Cowin wrote for the court, ``each parent necessarily surrenders a degree of prerogative in certain life decisions, e.g., choice of habitation, that may affect the feasibility of shared physical custody."

The SJC's decision not only guides future cases involving relocation and joint custody in the Commonwealth but also promises to generate wider interest because the SJC is a well-respected court and few state supreme courts have considered the subject. The ruling, says Jeff Atkinson, author of ``The American Bar Association Guide to Marriage, Divorce & Families," strengthens an emerging trend of courts looking at each case based on its particular facts without a presumption for or against allowing the move. It also comes in one of the most wrenching areas of family law.

The SJC pronouncement that pleases Mason leaves Shanley Coleman dismayed and awaiting action on her separate petition in family court for sole custody. Their sons, who the trial judge noted had expressed interest in spending more time with their father, now clamor to move to Bristol and live primarily with their mother.

Shanley Coleman and Mason, who met as co-workers in a software company, wed in New Hampshire in 1985, and during the first years of their sons' lives Mason cared for them while Shanley Coleman worked. When they divorced in 1998, they agreed to move from Hampton, N.H., to within 25 miles of Chelmsford to be near her job in Lowell and his in Lexington. They agreed to joint legal custody. They also established a parenting schedule that favored Shanley Coleman when school is in session but, as with many divorce agreements in recent years, did not label the arrangement either joint physical custody or sole physical custody with visitation.

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