PETITION OF:

Section 31 of Chapter 208 of the General Laws as appearing in the 2004 Official Edition is hereby amended by striking out section 31 and inserting in place there of the following section:—

   Section 31. (a) For the purposes of this section, the following words shall have the following meaning unless the context requires otherwise:

   "Sole legal custody", one parent shall have the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

   "Shared legal custody", continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

   "Sole physical custody", a child shall reside with and be under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.

   "Shared physical custody", a child shall have periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.

(b)There shall be a prima facie presumption in favor of shared legal and physical custody in determining temporary or final custody and visitation

(c) Upon the filing of an action in accordance with the provisions of this section, section twenty-eight of this chapter, or section thirty-two of chapter two hundred and nine and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect by one party or the other, in making a temporary or permanent order or judgment relative to the custody of children, the rights of the parents shall be held to be equal, and the rights of the parents and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child and the rights of the parents, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health and who was responsible if this is the case. In determining whether temporary shared legal and/or physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any parent abuses alcohol or other drugs, has deserted the child or alienated the children toward the other parent; but a history of the parties inability to cooperate presently or in the past, will not be determinative of the issue of issuing a joint custody order.

(d) The parents shall have temporary shared legal and physical custody of any minor child of the marriage notwithstanding prior disputes between the parties; provided, however, that the judge may enter an order for temporary sole legal and/or physical custody for one parent if written findings are made stating facts in this case, that support a finding that such shared custody would not be in the best interest of the child. If there are facts of a lack of cooperation during such future temporary joint custody or sole custody orders, disputes shall be submitted to the court or its probation officers for mediation and/or final resolution.

(e)In all final judgments under this section, by agreement of the parties or order of the court, as to custody and/or visitation or support, the agreement or order must contain a provision for resolution of matters of dispute under the order or agreement in the future except modification due to changed circumstances i. by final alternative dispute resolution as to custody or visitation or support, by arbitration and enforcement in the same manner as private arbitration agreements if both parties agree within 30 days or ii. presentation of the issue in dispute by contempt, or iii. by complaint pursuant to c. 231A for future resolution and an enforcement order only in the probate court. Orders for relief as to custody, visitation and support described herein after hearing or trial and or an agreement to be enforced by the court, shall be considered a final judgment notwithstanding future dispute resolution provisions are included therein as described herein by order of the court or voluntarily. In addition it shall be grounds for modification of custody and visitation and the awarding of counsel fees to the other party, if a parent is found to have persistently and/or in bad faith, failed to carry out the terms of a custody order or agreement, or engaged in ‘parental alienation’ in regard to the other parent with a child.

(f) If despite a current or permanent restraining order against one parent pursuant to chapter two hundred eight or two hundred and nine A being in effect, the court orders shared legal or physical custody either as a temporary order or after a trial on the merits, the court shall provide written findings to support of such shared custody order and cause the 209A order to be amended in regard thereto. The denial, or vacating of such an order first issued in a prior 209A matter by any court, shall be binding on this court, and the facts alleged or which could have been alleged in such matter, shall not be permitted to be considered again in regard to its custody or visitation determinations under this section. The definition of 'abuse’ to be used herein, shall be the same in custody and visitation matters as defined by c. 209A.

(g) seeks shared legal or physical custody, the parties, jointly or individually, may submit to the court at the trial a ‘shared custody implementation plan’ setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.

(h) After the trial on the merits, the court shall consider the shared legal and physical custody implementation plans submitted by either of the parties as part of the evidence. The court may issue a shared legal and physical custody order and, in conjunction therewith or may accept the shared custody implementation plan submitted by either party even if the other party objects.

(i) If a plan of joint custody is submitted by the agreement of the parties, or as provisions which are part of a written agreement in regard to divorce, the court may not reject such a joint custody plan or such provisions, and issue a sole legal and/or physical custody award or require a change in such provisions, unless there is a preponderance of the evidence submitted sufficient to overcome the presumption of shared custody or to support an amendment to the joint plan, and the court issues findings of fact and law giving its reasons for such actions.

   (j) Provisions regarding shared custody contained in an agreement for divorce executed by the parties and submitted to the court for its approval that addresses the details of shared custody shall be deemed to constitute a ‘joint custody implementation plan’ for purposes of this section.

   (k) An award of shared physical custody shall be considered in determining the amount of child support owed by either parent based on the time the children are supported by either of them when in their residences under the plan and the relative economic circumstances of the parties and shall not be subject to support guidelines for sole physical custody situations. An order of shared custody shall constitute grounds for modifying a prior support order based on sole custody if there is a demonstrated economic impact that is a sufficient basis to warrant modification, or such an order may be the basis for changed orders during joint custody if there is or will be known circumstances showing relatively large changes in the time the children spend with each party each year, or there is or will be known economic circumstances of either of the parties which shall significantly change during a year period of time in the future justifying a modification in regard thereto.

   (l)The entry of any type of order or judgment relative to the custody of minor children under this section or c. 209A, shall still permit the non-custodial or each joint custodial parent their parental rights, without the necessity of an order from any court, to have full access to the academic, medical, police or administrative records, hospital or any other health records of any minor child of the parties directly from the third party sources who shall be required to provide them (and not from the other parent except voluntarily unless there is joint custody) or if any child is unemancipated and/or still being supported by either party until age 23, notwithstanding any other law or order; unless there a specific order to the contrary under this section entered in the probate court, stating the reasons therefore.