Category Archives: Custody

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.

 

 

Advertisements

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.

Thank you for reading the Matta Law Blog. Please like us on FB (Counselor at Law) and Twitter (#attorneymatta).

Can I Protect My Pension From My Soon-to-be Ex?

MA adopts the position that ALL assets of the parties (individual and marital) are put on the table for distribution at time of divorce. Many states honor “separate property” doctrine at time of divorce–that is property the parties’ owned before marriage or in their name only — but MA does not.  So, any pension in place during the time of marriage is subject to division. Its very hard to get away from the strict letter of the law when it comes to pensions; however, you and your spouse are free to negotiate and make any arrangement you want, that is acceptable to the Court, if you settle your divorce by agreement.  You can negotiate the distribution of assets (including pension funds), custody, child support, alimony–ALL OF IT. You can have a lawyer draft an divorce agreement which addresses all the issues that must be addressed, present it to the Court and once approved, the Agreement will be incorporated into the final judgment of divorce and those will be the orders you will live by thereafter.

Your spouse my waive the right to her share of the pension funds in exchange for something or for nothing in return. It’s the spouse’s right to waive. If she is truly willing to make the transition as painless as possible she might consider waiving her interest in the pension, or exchanging it for some benefit she wants, such as paying for college for the kids or keeping the marital home–this, of course, should be based on the value of the pension assets she is waiving. Typically, the spouse is entitled to half of the pension funds.

itsyourfault
Health insurance: You can voluntarily agree to continue the children’s health insurance after the divorce. In fact, if the spouse doesn’t have a comparable policy or if the children are dependent on your coverage for their insurance you may be ordered by the court to continue their coverage as part of the child support order.
Another thing you might want to consider is a separation agreement, if you and your spouse are not ready for a divorce but want to live apart. MA doesn’t recognize legal separation but does have provisions for separate support. This addresses living apart, the support for the children and possibly support for the spouse; it will NOT address distribution of marital assets or the divorce itself.  Separate Support judgments  in MA do not convert into divorce (as in some other states); if you decide you want a divorce, you would have to start an action distinct from the separation papers.

Hope this was helpful 🙂

Estela Matta, Esquire

If giving up custody of my two children to my husband can I go back in several years and try to get custody?

caring father with childrenLet me correct you about certain assumptions your question seems to be making:
In today’s environment, “fault” is not necessary to prove against the other spouse to get a divorce. In other words, infidelity, cruelty, abandonment etc., does not have to be plead or proved to get a divorce, and frankly most lawyers do not file a fault based divorce because it only means more expense and time (though of course the option is still available). There are more difficult issues that have to be argued, such as custody, support and distribution of marital assets– which is where the modern divorce attorney should focus time and energy.
Children born to a married couple gives BOTH parents legal and physical custody rights unless and until a court of law says otherwise. So there is no need for you to “give up custody” of your children simply because your spouse is alleging or threatening to allege infidelity. The topic may never come up and the Court would rather focus on who is the appropriate parent to have physical custody of the minor children. The Court prefers to see shared legal custody and physical custody to one parent. So don’t be in too much of a hurry to give up your lawful rights to your children.
To answer your question: custody and all matter relating the the care of children can ALWAYS be revisited while the children or minors or in college when they are older (unless you surrender these rights through an adoption –which is non-reversible).
I suggest you consult with a Family Law attorney, including my own firm, and get the right information about what is likely to happen in a divorce action, and what rights you have unless you voluntarily give them up.

What is a “Motion” and How Do You File One in the Family Court?

The question was put to me: What do I say on the motion form provided by the court when it asks “Motion For ______________”?

I’m going to assume you are a layperson (nonlawyer) trying to file something in court “pro se”–that is, on your own and without a lawyer.  A bit of civil procedure rules are required here: You can only file a “motion” when a case is already before the court; so if you do not have an active case (still being litigated and there has been no judgment entered), you must start an action by filing a Complaint. In the Probate & Family Courts of Massachusetts, this may be a Complaint for Modification [of an existing Order or Judgment], a Complaint for Contempt, A Complaint for Custody/Visitation, a Complaint to Establish Paternity, A Complaint of [Child] Support, a Complaint for Divorce, etc., to start a judicial review of your concerns. This is subject to all the rules of procedure controlling service and filing to commence an action. (See Mass. Rules of Civ Pro, Rule 4; http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp4.html)  Then, once the action has been commenced, served and joined, either party (Plaintiff or Defendant) can proceed to make Motions.

scales of justice 2

A “Motion” is so called because the party is seeking to “move the Court” in the direction of granting an order. It is “persuasive writing”, and typically will include not only a request for the [temporary] relief sought, but will be accompanied by a sworn affidavit from a personal with actual knowledge of the facts, upon which the Court may rest its decision.  Typically, the moving party (also called the “movant”) will attach exhibits and further evidence in support to the moving papers.  A motion can be made for almost any imaginably  relevant request for interim relief (that’s why “motion practice” can be tricky and complicated). Any request made to the Court or regarding the proceedings is made by motion; so, a motion to continue the hearing (adjourn to another date), a motion for temporary orders, a motion to be relieved as counsel, a motion to grant attorney fees –virtually anything– OTHER THAN THE ULTIMATE QUESTION  reserved for judgment, can (and must) be requested of the Court by “motion”.

A further civil procedure note here: service of motions must be in keeping with the statutory time to serve upon opposing party before a hearing date–typically ten days–in order to allow the respondent to file and serve a written response, if they so choose.  All motions must be filed, calendared for hearing before the Court and served on all parties.  Proof of service of the moving papers must be filed with the court. All motions will be heard before the Court, with both sides present and given an opportunity to address the issues, for and against, before a decision will be rendered by the Court. A last note here: Motion practice is used in both civil and criminal proceedings, but of course, criminal case motions follow the rules of criminal procedure not covered in this discussion.

Decisions on motions are usually of a temporary or interim nature; they may be modified, vacated or over ruled in the Final Decision and Judgment of the Court. However, decisions and orders on motion may also be incorporated into the final judgment–and they often are!

To answer your question specifically, the “Motion For” on the motion form is followed by:   whatever you want from the court, e.g. Motion to Continue the hearing, or motion to waive appearance, a motion for temporary custody…you get the picture. In the scenario presented in your fact pattern, you would file a Complaint for Modification [of Custody/Visitation], then file a Motion for Temporary Orders [to change the visitation schedule], and “such other and further relief as the Court deems appropriate”.

While I know there is a  trend in the courts to encourage self representation, and the courts have tried to streamline and simplify procedures, Family Court matters are serious, and should not be undertaken by inexperienced pro se litigants, anymore than a layperson should try to build their own house.  Consult with attorneys (plural) and retain counsel to structure your position in a light most favorable to the court and to help you navigate through these complex procedures and rules of court.

Respectfully submitted,

Estela Matta, Esq.

 

 

Can a Separation Agreement be changed after Judgment?

It is unclear what you are referring to when you say “Separation Agreement”. MA does not recognize legal separations;it does however allow for actions for Separate Support. Agreements for separate support address only the custody and financial needs of the (custodial) spouse and the children (they do not address distribution of marital assets). Unlike in other states, such as New York, where a separation agreement can convert into a divorce action, MA requires the commencement of an entirely new action if the couple decides they want to terminate the marriage after a period of separation.

If however,you are referring to a Settlement Agreement prepared to address all the elements and issues in the dissolution of the marriage, and subsequently incorporated into the Judgment of divorce: these Agreement are always open to modification in regards to any issues involving the care and custody of the children, even if the Agreement does not merge with the Judgment.

In short, your wife is entitled to seek a modification of the child support amount scales of justice 2

and seek to increase that amount to meet the child support guidelines. This however may be mitigated by other “trade-offs” you may have conceded as part of the negotiations for the final Agreement.

Modification cases are highly particularized and require an experienced attorney to navigate. If you have not done so already, you should consult with an attorney to review the Agreement and Judgment and help explain your situation in light of the facts of your case.

When Can I Stop Paying Child Support? :-(

“My kid is 18 now.  Can I just stop paying child support to his mother?”

I haven’t run the stats on this, but its my unofficial opinion that this is the most commonly asked question from people looking up legal advice in child support matters on line this year.  As we Baby Boomers age, our children are becoming college age and beyond.  Divorces in the 70s, 80s and 90s that once revolved around alimony, child support and pension plans now revolve around college costs and medical insurance. As the economy struggles, more and more noncustodial parents are seeking relief from the “burden” of child support. and are looking to terminate child support at the earliest possible juncture. So I’m seeing a lot of divorces that didn’t address the emancipation of their children as a vital part of future protections and obligations now coming into court asking for some clarification as to when they can finally stop sending those darn checks?

signing pen

The shortest distance between two points, finding out the extent of your support responsibilities and when you can stop paying, is to read about it in your Divorce Agreement. That, of course, would mean you and your ex would have addressed it at the point of negotiations and settlement arrangements, that the terms of your Agreement were approved by the Court and that it was incorporated by reference in the final judgment of divorce.  Further, the extent and details of the Agreement provisions addressing the terms of emancipation of the child (or children) would have to be examined.

Whether a parent may stop paying child support is predicated on one of two things: (a) an Agreement or Settlement of Divorce (or paternity) that addressed the issue and spelled out what would constitute the emancipation of the minor children of the marriage (such as at age 18, or if over age 18 but still in college, etc.) and if the parties agree, without further requirement of judicial intervention, to terminate child support upon the occurrence of a set of conditions precedent (b) state statute.

If the parties cannot come to an agreement that includes terms they can live with and maintain, then the court will apply statutes that cover the issue and define the bottom lines.

The first thing to keep in mind is that a dependent child’s right to receive support from a noncustodial parent does not automatically end the minute the clock strikes midnight on the 18th birthday. There are facts and circumstances that will affect a court’s ruling on whether to terminate child support.

Firstly, is there a divorce agreement and does the agreement address the emancipation of the child and the termination of child support? An agreement (esp one that has been reduced to a judgment) will probably control. Barring an agreement, we look to the statutes:

The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.

So there’s the black-and-white of it. —But you’re not out of the woods yet, my friends.  You MUST get an agreement and/or court order that says you no longer have to pay child support (—for that child–you may still be obligated to pay for other children).  If your income is garnished through the Dept of Revenue, nothing but a court order will stop the garnishment.

In MA, the way you get a court order to terminate child support obligations is by filing a Complaint for Modification in the Probate & Family Court of the county where the child support order and/or divorce was entered.  The form itself is not complicated; you can find it online at the court’s website.  However, the litigation may become complicated.  There are many borderlines cases where a child may, for example, be over 19 not in school, but still dependent on the custodial parent for support and maintenance.  Noncustodial parent’s ability to pay may be a countervailing element.  The court will take many factors into consideration.  There is no “slam dunk” or “black-and-white” prototype.  Another option is to file a Joint Petition to dissolve the child support obligation.  This sounds a bit easier, but its actually not–procedurally. Either way, I strongly urge anyone with these types of concerns to consult with an experienced Family Law attorney.

If I haven’t convinced you yet that the best thing to do is get a court order to terminate your child support obligations, perhaps this will:  You can go to jail for not paying child support.  As long as an order sits on the records, and has not been overturned by subsequent order, the obligor (you) will be held accountable for making those payments.  If you do not make them, they accrue as arrears, with penalties and fines.  There is no forgiveness –repeat–NO FORGIVENESS —for arrears. The Dept of Revenue will hunt you down, they will arrest you, confiscate your assets, seize bank accounts, revoke your drivers license and any other license that your work may depend upon — we’re talking merciless.

stock-photo-father-crying-hugs-teenage-son-closeness-forgiveness-loss-transition-solace-157483391

And don’t forget, you’re doing this for your child.  Put aside whatever harsh feeling you may have for your ex, cutting off a life line to a young adult, especially in this day and age, is something you should think about carefully and be flexible in negotiating.

Estela Matta, Esq.

http://www.emattalaw.com

Gay Marriage — Unhappy Divorce

Marriage equality has gained enormous momentum since the landmark Massachusetts ruling in Goodridge v. Dept. of Public Health798 N.E.2d 941 (Mass. 2003), with 18 states and the District of Columbia legalizing or recognizing Gay marriages since 2003.

http://www.cnn.com/interactive/us/map-same-sex-marriage/

Thats the good news.  The bad news is that state have been left with no legislative guidance as to how to deal with Gay divorces and the issues associated with the dissolution of marriage. According to 2010 US Census data (PDF), there are nearly 600,000 same-sex couples living in the US, and about 25 percent of them are raising children. Adoption and surrogacy, for example, are used more and more by same-sex couples to “complete” their families. State lawmakers and the courts across the US are dealing with the special legal problems raised when gay and lesbian parents fight for parental rights like child supportcustody and visitation. The states deal with these problems in different ways. For instance, New York recognizes same sex parents have the same legal obligation for child support as opposite sex marriages.  Michigan does not recognize same-sex marriages and same-sex partners can’t adopt each other’s children.

Legal disputes between gay and lesbian parents can be complicated. This is mainly because the laws in many states don’t specifically address these parents’ rights and the courts are left to grapple with the problems. Some states do have special laws, however, so be sure to check the laws in your area for your parental rights and responsibilities.

In a number of states, a parent’s sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

As a practical matter, however, lesbian and gay parents — even in those states — may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent’s sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights (www.nclrights.org).

MATTA LAW reaches new benchmark

MATTA LAW’S Attorney, Estela Matta, has reached a benchmark of over one thousand of YOUR legal questions answered. More than 750 unaffiliated attorneys have concurred and agreed with the legal content, quality and particularized information provided by Attorney Matta in answer to your individual legal concerns. Keeps your questions coming!

When your case matters–call Matta Law.  A proven record of successfully representing clients in Massachusetts Divorce, Custody, Child Support, Guardianship and Will /Probate matters.

Check out Attorney Matta’s profile, client reviews and professional recommendations by peer attorneys.

http://www.avvo.com/profile/dashboard#!  or go to http://about.me/emattalaw

profile pix1

 

Free 1/2 hour consultation. Use the “Contact me” tab on http://www.emattalaw.com or call directly 617-500-7508 with your legal  questions and concerns. Serving the entire Commonwealth of Massachusetts.

Past performance is no guarantee of future results. No guarantee, implied or explicit, is to be construed hereby.

 

 

What is the Difference Between Guardianship and Custody?

Custody is the exclusive purview of a parent.  A parent is the natural guardian of a child. When a child is born there is a presumption of legal and physical custody of the child to the biological parent(s).  However, for every rule of law there are exceptions.

father holding hands with child 2

If a child is born to a married couple, the presumption of legal and physical custody is in both parents.  If a woman has a child within 300 days of a marriage, the husband is presumed the father. But that can be challenged.  If a child is born out of wedlock, the father must establish paternity.  The father may voluntarily sign an acknowledgment of paternity at the time of birth, but that will only go so far in a legal dispute.  The courts usually will require a DNA test to conclusively establish paternity when a child is born out of wedlock and the father chooses to exercise parental rights. The presumption of legal and physical custody remains with the mother unless and until challenged in court. This can happen any number of ways: either through a custody dispute during a divorce, a challenge for custody from a father who has established paternity or if the state intervenes.

“Guardianship of a minor” on the other hand is by court order to a non-parent. Any competent adult can seek guardianship of a minor.  The burden is on the moving party (the applicant) to prove why they should be appointed and empowered with the “parental” rights over a child.  The rights and obligations conferred through the award, appointment or nomination of guardianship are almost identical to those of a parent; however, the guardianship and its powers and rights can be terminated relatively easily as compared to the termination of parental rights.  The guardian is entitled to child support either from a capable parent by direct payment from a parent or parents or from the state in the form TANF, Aid for Families with Dependent Children or any other cash award programs a state provides, as well as medical coverage and food assistance.

The appointment of a guardian does not necessarily terminate the biological parents’ “parental rights” though they may not exercise certain powers while the child is under a guardianship. The court may preserve the parent’s rights of visitation; the biological parent may, in certain circumstance, have accesses to information about school and medical decisions, though they do not have the right to make those decisions for the child while under guardianship.  The biological parent may petition the court for reunification with the child, unlike an adopted child.