Monthly Archives: November 2016

Conflicts With Court Ordered Parenting Time

It is frequently asked by parents living under parenting schedules ordered by the Court, what can they do to get the other parent to be more cooperative in last minute or long term plans that conflict with the parenting schedule.

Frankly, there are not that many options.  A parent has the right to go to court and seek a “modification” or change to an existing order where they can show “substantial change in circumstances” from the date of issuance of the order.  Any change will be deemed a modification for court filing purposes, even if it includes a request to terminate the order. So option (2) is to file a Complaint for Modification of the order or judgment and specify why a change is appropriate and what changes you wish made.  In the case of a parenting schedule, a petitioner must include the details of the existing order and what parenting time changes or modifications are requested, e.g. You don’t want to require permission from non-custodial parent for out of state vacations, or you don’t want over-night visits with other parent,  or parties shall not UNREASONABLY withhold consent for child activities with other parent, etc.

The Court looks to parents’ ability to resolve internal conflicts as evidence of their parenting skills. Too many of these types of arguments brought before the Court could lead to loss of the custody of the child, in extreme cases, or more typically to court ordered parenting classes at parties expense. The first thing you should try (option 1) is find a solution between yourself and the other parent. That means compromises and barters. Trade something the other parent really wants for what you want–an extra day next weekend, an extra holiday… It can all be negotiated, if the parties are willing.

If that fails, one can try to file an “emergency” Motion to be heard very quickly by the Court before a specific dated event such as a family gathering, a wedding or a planned vacation.  A reasonable argument to be made in such an emergency motion is that [Parent] is UNREASONABLY denying an exception to the parenting schedule and refusing to negotiate an alternative, without regard to the best interest of the child. However, a word of caution,  this may not be seen by the Court as an “emergency” and may deny you a swift hearing.

It may be worth it to file a complaint for modification to address some of the details that have arisen while the present orders have been in place, which may have been unforeseen at the time of the judgment or order. If you find that you are persistently having these type of communication break downs, it may be time to revisit your present orders.

Lastly, if either party chooses, unilaterally, NOT to abide by the schedule order, they run the risk of being charged with contempt of court. Do so at your own peril.

Comments based on Massachusetts Domestic Relations Law.  Not provided as legal advice.

Estela Matta, Esq.

 

 

SEPARATION v. DIVORCE

Dissolution of a marriage can only happen through a divorce decree issued by a Court of competent jurisdiction. However, many states issue “legal separation”, “conversion divorce”or “separate support” judgments– which fall short of a divorce but still address certain marital situations.

A legal separation and separate support are types of applications to the court to recognize that parties wish to live “separate and apart”, wish to formalize financial arrangmeents but are not seeking a dissolution of the marriage. These proceedings address primarily financial arrangements between the parties, and custody if children are involved.  They do not address distribution of marital assets such as the marital home or pensions, etc. And of course they do not dissolve the marriage.  The biggest distinction between separate support and legal separation is in individual state laws.  New York recognizes “living separate and apart” as a “legal separation”, whereas Massachusetts does not.  It will interpret the issues addressed in any MA proceeding for separate support more narrowly than a state like NY, that allows a legal separation to be “Converted” into a divorce after one year of the filing.  MA does not have conversion divorces, i.e. a legal separation that can be converted into a complaint for divorce upon which judgment for divorce may be entered. MA requires a new action specifically calling for the termination of the marriage.

A person wrote to me asking about housing arrangements between the spouses in what appeared to be a “living separate and apart” situation where no legal action of any sort had been commenced. This lead to a discussion of distinct ways in which parties may resolve end of marriage or separation problems:

If you are married, [housing] is an “extra-legal” question, meaning the law does not cover this subject because the law does not interfere with how a husband and wife make out their living arrangements; so it is up to you and your spouse to come to some agreement you can both live with.

If you are already divorced, you have to look to the divorce judgment for any express terms and conditions that address this question. Typically something is said in the judgment about distribution of the marital home–who gets to stay, how has to leave, if one party has to buy out the other party’s interst or refiance a mortgage, etc.

If you are still married, but living apart you have 2 options under MA law: filing for “Separate Support” which brings the issues of care and maintenance before the court but does not conclude a divorce; or one might have to consider filing for divorce. At that juncture, the courts will step in and force a distribution of assets and other settlements provisions which could include a housing allocation for wife and (minor) children. Its best to consult with a local lawyer to get a better understanding of the process and laws involved in your state, as well as an opinion tailored to one’s specific facts and circumstances.

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