When is Joint Legal Custody Inappropriate?

Photo of Lacey Brantley

Massachusetts courts recognize two distinct types of custody of children. The first, physical custody, is what most litigants mean when they refer to having "joint custody" or "primary custody" of their child. Physical custody is a term that describes the amount of time the child spends in the care of each parent. Although physical custody is often the aspect of divorce or custody litigation that is most contentious, the second type of custody - legal custody - is also a fundamental element of parental authority. Legal custody refers to the parents' rights to make "major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." M. G. L. c. 208, § 31. Legal custody can be either joint, in which the parties must confer with each other and reach shared decisions on these types of matters, or sole, in which one parent has the ability to make decisions about the child's health, education, or religion, even if the other parent disagrees. Joint legal custody, at a minimum, requires "two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions." Rolde v. Rolde

The majority of litigants assume that, should their case proceed to trial, a Probate and Family Court judge will award the parties shared legal custody, even if one party does not receive the physical custody arrangement he or she is seeking. However, a recent, unpublished decision demonstrates that there are cases where shared legal custody is not appropriate in the best interests of the child.

In Ogles v. Johnson, an unpublished Memorandum and Order Pursuant to Rule 1:28, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's grant of shared legal custody. Despite a finding by a Court-Appointed Guardian Ad Litem (GAL) that the father had perpetrated domestic violence against the mother, and a further finding by the trial judge that the parties had a historically volatile relationship, the Probate and Family Court nonetheless ordered the parties to have shared legal custody of their child on the basis that they had been able to make joint decisions about the child in the past.

The Appeals Court held that this decision constituted an abuse of discretion on the part of the Probate and Family Court judge. The Court wrote that, "though the judge did find that the parties have been able to agree on some decisions regarding the child, for the most part, the findings describe a contentious relationship." Accordingly, the Appeals Court held that the Probate Court's findings did not support the conclusion that the parties could "meaningfully cooperate in making decisions for the child." This decision is evidence that Massachusetts courts will not hesitate to order sole legal custody to one party in cases where the parents have a historically high-conflict relationship.

This case involves a post-foreclosure lawsuit. The borrowers claimed that the foreclosing mortgagee did not comply with the notice requirements contained in their mortgage before foreclosing on their property.

A provision of the mortgage contained a time limitation regarding the borrowers' right to reinstate the loan after its acceleration. Specifically, it stated that "Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before the sale of the Property pursuant any power of sale contained in this Security Instrument..." When it sent its pre-foreclosure notice of default to the borrowers, the foreclosing entity did not make any mention that the payment had to be tendered at least five days before the foreclosure sale. Rather, the notice of default stated that the borrowers could "still avoid foreclosure by paying the total past-due amount before a foreclosure sale takes place." That omission proved to be fatal. The First Circuit found that such omission was "potentially defective," and therefore not in strict compliance with the terms of the mortgage and Massachusetts law. The court concluded that the "potentially defective" notice of default rendered the foreclosure sale void.

The First Circuit arrived at that conclusion even though it recognized that the borrowers "do not say that their conduct was in any way altered." They did not claim that they were in any way confused or made any attempt to reinstate the loan before foreclosure. Relying on Pinti v. Emigrant Mortg. Co.(2015), the court explained that the borrowers do not need "to prove that the inaccuracy or deception caused harm."

Because Massachusetts law allows non-judicial foreclosures, in return mortgagees are required to strictly comply with the terms of the mortgage. This case is another reminder how critical it is for foreclosing entities to prepare notices of default that very closely follow the language contained in the mortgage.

No Comments

Leave a comment
Comment Information
  • Super Lawyers
  • Best Lawyers | Best Law Firms | U.S.News & World Report | 2019
  • Preeminent AV | LexisNexis Martindale-Hubbell Peer Review Rated For Ethical Standards and Legal Ability