Learn more about how to manage parental interference and abuse allegations when going through a divorce in Massachusetts.

When parents no longer live together and share physical custody of their child, a “Co-Parenting schedule” is implemented to allow each to have quality parenting time with the child, free of interference from the other parent.  When two people cannot agree on the terms of a Co-parenting schedule, Co-Parenting Coordinators are often hired and appointed by the Court (parties to share the expense) to referee parenting disputes arising out of parental interference abuse allegations. This can be very upsetting and today one of our Divorce Squad legal experts, Melissa Dragon, is sharing what you need to know to get through this challenging experience.

Parental interference occurs when one parent acts unilaterally, intentionally trying to disrupt the other parent’s custodial rights to spend time with the child. Parental interference can occur in a direct manner, such as when a parent physically keeps a child from seeing his or her other parent, but it can also be indirect in nature, by way of disparaging the other parent to the child and/or making false reports to child protective services/school/police/court about the other parent in an effort to stop all contact with the child and the other parent.

Types of Unjustifiable Parental Interference

• • Refusing to release the child to the other parent during the other parent’s scheduled time;
  • Directing a third party to take the child to prevent the parent scheduled to have custody from having the child;
  • Limiting/blocking the child’s telephone contact with the other parent;
  • Failing to return the child on a timely basis/consistently keeping the child past the time allotted in the parenting schedule orders;
  • Luring the child away from the other parent with promises of play dates;
  • Enticing the child away from the other parent with exciting activities (e.g., concert tickets, Disney Vacations, etc);
  • Enticing the child away from the other parent with material bribes (e.g., money, new electronics/clothes/gifts, new pet, car, etc.);
  • Implanting an irrational fear of the other parent in the child;
  • Unilaterally arranging for encounters with the child when the child is scheduled to be in the other parent’s custody;
  • Unilaterally taking the child to the Pediatrician/Therapist/Teacher in attempts to build a false record of abuse against the other parent;
  • Reporting the other parent to Police/Child Protective Services with unsubstantiated abuse allegations;
  • Obtaining Ex Parte (no notice) restraining orders based on unsubstantiated abuse allegations to keep the child away from and cause the child to fear the other parent.

Parental interference is NOT a violation of the law when:

• Changing the parenting schedule is necessary to protect the child from imminent danger;
• Events beyond a parent’s control causes delay (e.g., bad weather, unavoidable transportation delays);
• Parties mutually agree in writing in advance to a change in the parenting schedule.

Proving Parental Interference – Case strategy: Document, document, document!

• Text/Email: The Court will not entertain or take decisive action based on multiple rounds of “He said, She said”. For this reason, a parent must learn to communicate in writing with the other parent by text and email to ensure co—parenting communication is clear. If a parent believes the other parent was/is interfering, it is best to text/email the other parent to document the behavior. It is surprising how often the offending parent will respond by admitting and trying to justify their conduct. A lack of response can also be telling. Either way, the text/email provides contemporaneous documentation of the incident to help build a case of parental interference for the Court.
• “Our Family Wizard” or “AppClose” parenting communication Apps: the communication between parties over a period of time can be viewed by the Judge at any time through printing out communication on the App. The Parenting App communication as evidence is particularly helpful because messages cannot be taken out of context.
• Personal Journal: include month, date and time of each entry concerning conversations or incidents with the other parent. Notes of key events and statements exchanged during custodial transfers can be used when preparing an Affidavit in support of motions for judicial intervention if needed.
• Social Media: if one parent slanders the other parent online, such posts can be admissible during evidentiary hearings as evidence of a parent’s toxic mindset and/or willful intent to interfere with custodial relationship rights of the other parent. When multiple social media posts evidence a significant pattern of disparagement of the other parent, the court will intervene on behalf of a child to shield them from the toxic parent’s negative influence. For this reason, it is imperative that clients take a dated screenshot of any social media posts/comments made by the other parent to evidence their unabated, toxic co- parenting mindset.
• Request a Guardian Ad Litem Investigation: a Guardian Ad Litem is a Court appointed investigator who, in matters of child custody disputes, is a professional with a mental health background or legal training and/or both. The Guardian Ad Litem acts in a neutral fashion, as an extension of the Court, to interview, review documents and report to the court as to the family dynamics surrounding the current dispute. To the extent one parent admits to the Guardian Ad Litem that they willfully interfered with the other parent’s custodial time, that statement will be memorialized in the final Guardian Ad Litem Report and used as an exhibit at Trial.
• Police: In the event a parent shows up to pick up the child and the other parent refuses to release the child, it is best to first text/email the interfering parent in the moment to document the refusal to comply with the parenting schedule. Next, have your client go to the local Police and request a call is made to ask the other parent to comply with the parenting schedule. Ask that Police document the incident and the other parent’s refusal to comply with court orders.
• Medical/School Records: as parental interference can occur indirectly by way of one parent’s unilateral efforts to align the child’s service providers with one parent and invalidate the input of the other parent. If a parent suspects their rights are being indirectly interfered with by the other parent, a request for a child’s entire medical record, educational record and therapeutic treatment record can be made to determine the extent of misrepresentations made by one parent to third parties about the other parent.
• Depose the Interfering Parent about their conduct: often the interfering parent believes their interference is justified. Whether the interfering parent lies about their manipulation tactics or defiantly admits to their non-compliance with court orders, the stage will be perfectly set for confronting the interfering parent on the record with the aforementioned documents evidencing their misconduct. Forcing the interfering parent on the record to face the growing mountain of evidence of their interference will help bring all the pieces of interference together to present a clear picture of “the tail wagging the dog” for the Court.

 Fighting Against FALSE Abuse Allegations

Just as texts/emails/journal entries/social media posts/medical records/school records and a Guardian Ad Litem investigation report can be used to build a case of parental interference, the same evidence can be used to exonerate a parent wrongfully accused of parental interference and/or child abuse. When abuse allegations continue to be lodged by one parent against another with intent to interfere or terminate the relationship between one parent and their child, it is referred to as “Parental alienation”. A pattern of parental interference via lodging of numerous, unsubstantiated false abuse allegations by one parent against another can be a basis to award the non-alienating parent sole custody of the child. It can be shocking to the interfering, alienating parent to learn they can lose custody due to a pattern of interference with the other parent’s rights. However, the Court’s position is that the “best interests of the child” is not served by a parent who consistently demonstrates poor parental judgement to the extent of falsifying evidence against the other parent.

When weighing all relevant factors in determining the best interests of a child a judge shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health. Factors a judge may weigh are whether:

• whether one parent seeks to undermine the relationship a child has with the other parent;
• whether one parent is unwilling/unable to respect other parent’s role in child’s life;
• whether one parent’s home is more stable in terms of a parent’s work schedule;
• whether the child would be cared for by multiple providers rather than a parent;
• whether siblings are being raised together;
• whether one parent is capable of subordinating her needs to those of the child.

One important piece, though, is that, in exercising such discretion, the judge “must weigh all relevant factors . . .”. Id. at 494 quoting Kali, 439 Mass. at 845 (emphasis added, internal quotation marks omitted). Thus, if evidence of false abuse allegations are made and if a change in custody will be at issue, the judge must consider whatever alienation evidence put before her, or that would be an abuse of discretion.

In Custody of Zia, unjustified parental interference by mother drove the change in custody as the court noted the following evidence in awarding custody to a father: (1)mother’s inability or refusal to communicate with father in non-visitation matters for the benefit of the child; (2) mother’s poor judgment and worrisome parenting decisions; (3) father’s active, positive role in the child’s life; and (4) father’s willingness to respect mother’s parental role. Custody of Zia, 50 Mass. App. Ct. 237, 244 (2000). In Williams v. Massa, the court looked at the evidence bearing on the question of custody. There, mother exhibited worrisome behaviors, had limited insight into the children’s special needs, alienated treating professionals and school personnel, and effected a breakdown in the relationship between father and the children. See, Williams v. Massa, 431 Mass. 619, 623-24 (2000). The trial judge awarded joint legal custody of both children, with shared physical of the son and sole physical of the daughter with mother. Id. at 624. This arrangement was based on an agreement between the parties which would shift sole legal custody to father after hearing if decision-making becomes too conflicted. Id. Although the SJC ultimately upheld the gist of agreed-upon arrangement for joint legal custody, 1 it noted that “[i]f the judge felt that joint legal custody put the children at risk, or was not in their best interests, because of the wife’s worrisome parenting behavior, then the judge should have ordered sole legal custody to the father”. Id. at 636.

Social Services Investigations – When They Happen and what the reports mean.

Social Services Investigations occur when either a parent or mandated reporter (such as Pediatrician, Police, Teacher, etc.) calls and reports concerns of abuse and/or neglect of a minor child. Following the call, Social Services will either screen out the report of abuse and no further action is taken, or screen in the report and conduct an investigation into the alleged abuse referred to as a “51a”. During the “51b” investigation investigation, Social Services will interview the child, the parties, any third-party witnesses or professionals involved. At the end of the investigation, Social services will either find a parent “Unsupported” or “Supported” for claims of neglect and/or abuse of the child. If allegations of child abuse and/or neglect are 1 The court held that the judge did not have the discretion to devise the alternate plan that would shift legal custody to father. Id. at 636. The arrangement had to be either one or the other. Id. Thus, the court changed the custody order to joint legal subject to modification only by complaint for modification. Id. Ultimately, the court upheld the joint legal custody arrangement in spite of the alienation evidence, upon consideration of all facts. Arguably, however, given the concerns about mother’s actions, the court could have (and, maybe should have) remanded. The court’s failure to do so seemed to be in deference to the trial judge’s broad discretion in weighing the evidence.

SUPPORTED by Social Services, the finding can be used as evidence to the Court that judicial intervention is needed to stop a serious pattern of parental alienation from further damaging the parent child. bond. Additionally, Social Services can provide in home therapeutic services and require each parent to engage in individual and/or group anger management programs to reduce the acrimony the child is exposed to. If allegations of child abuse and/or neglect are UNSUPPORTED by Social Services, that finding can be used by the wrongfully accused parent in Family Court as evidence of the other parent’s meritless harassment via baseless and acrimonious conflict creating allegations. For this reason, it is of the utmost importance to help clients understand that interference with the other parent’s rights/parenting time is not to be engaged in unless objectively justified to protect the child. Ongoing patterns of unjustified, willful interference with the other parent’s rights via unsubstantiated/false claims of abuse will, over time, result in loss of all custodial rights by the accusing parent.

As you can see, navigating parental interference and abuse allegations can be complicated and arduous and NOT something you should attempt to tackle all on your own. Reach out to Melissa Dragon for more support and should you need to face this complication, know that you will be well supported.