Category Archives: Parental Rights

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.

 

 

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.

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).

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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.

Dad Must Pay Half of Daughter’s Law School Costs

Reprinted by Permission – American Bar Association Journal

A Rutgers University history professor will have to pick up half the cost of his daughter’s education at Cornell Law School, which will cost him about $112,500, according to a New Jersey appeals court.

James Livingston is required to pick up the tab because of terms in his divorce settlement agreement, according to a decision (PDF) last month by the New Jersey Superior Court, Appellate Division. The New Jersey Star-Ledger and the National Law Journal (sub. req.) have stories.

The divorce agreement said Livingston would pay half the expenses for his daughter’s post-college higher education, according to the opinion. The agreement also said the daughter would provide Livingston with a copy of her class schedule, grades and financial aid information within five days of receiving them. Both Livingston and his ex-wife were not obligated to make any financial contribution, however, if the daughter did not maintain a C grade point average.

Livingston initially offered to pay $7,500 a year for his daughter’s legal education, provided that she attend Rutgers Law School, live at home with her mother, and provide him with progress reports, according to the opinion. He claimed his daughter should have informed him of financial aid offers from other law schools, and he should have been allowed to jointly decide with his daughter which law school she would attend. He also argued that his continued estrangement from his daughter was a changed circumstance that relieved him of his obligation.

The appeals panel rejected those arguments. A frequently used provision in divorce settlements gives fathers the right to participate in school selection, but Livingston’s agreement didn’t have such a clause, the court said. The court also pointed out that Livingston was already estranged from his daughter when he entered into the divorce agreement.

“If a relationship and a voice in the planning and selection of a school were his expectations,” the court said, “such terms could and should have been included in the agreement. They were not.”

 

What affect, if any, to giving birth in another state for custodial purposes?

Where a child is born is very significant, in terms of what state has jurisdiction over the child, esp if an interstate custody dispute should arise. Pursuant to the Uniform Child Custody Enforcement laws, where the child is born and lives for the first six months of it’s life is the state that has jurisdiction to determine custody issues, unless the child is over 6 months of age and has established residency in another state.   Another factor that would affect what state has jurisdiction is whether the child is born in or out of wedlock, to a single mother or a married couple.

3 hands

Generally, if you are a single mother, and want State X to be the home state of the child, you should give birth there, and stay there with the child for at least six months. A brief visit to another state will not interfere unduly with the state’s right to jurisdiction; however if you there is no clear cut domicile and residency for the child within its first year, the court will look to broader issues such as where have the parents resided for the better part and what kind of ties to the community a child has with any of the states at issue. Further if you removed yourself with the child in utero, without consent of the father/husband you are looking at a more complicated legal situation.

If the father is an MA resident and is adamant about the child remaining in MA, you may have a problem if you have not clearly established the child as born and resident in the state of your choice, and the MA court may require you to return the child to MA. The less stable the child’s identity with another state, the more likely MA will find jurisdiction to award or determine any custody issues.

As always, I must advise anyone considering relocating to give birth to consult with an attorney.

 

My Ex told me to stop paying her the child support. Is this legal?

Only a court of competent jurisdiction can vacate the child support order. If you fail to pay under the existing order you could be setting yourself up for a Contempt charge. If your ex no longer wishes to receive payments from you for the children, she will have to go to the Probate & Family court that issued the order and seek a new order terminating the child support obligations. She will have to give GOOD CAUSE why the court should absolve you totally of your support obligations. Unless she just won the PowerBall lottery and/or is independently wealthy, she will be hard pressed to explain why you should be exempted from the absolute duty to support your children. Another reason why the court might terminate your obligation is in the case of domestic violence.  In the past, where a woman or the children were in danger of retribution from paying spouse, she could claim good cause due to danger of physical harm if the paying spouse knew their whereabouts. Today, this is less likely because the court can arrange to have the payment made to the Department of Revenue for benefit of the children and the spouse need never have any contact with the wife or children.  This will depend on state laws.

Until such time that a court has terminated your child support obligation, I strongly advise you to continue making your payments. If she refuses to accept payments or fails to negotiate your checks, place the money in a trust or escrow account for the benefit of the children. If the contempt charges should later surface, you will have a very good defense and you will have the money to make the arrears payments.

father holding hands with child

The bottom line is: DO NOT STOP YOUR PAYMENTS UNTIL A COURT ORDER TERMINATES OR MODIFIES YOUR OBLIGATION. If you wife should actually take this matter before a judge, then you should retain counsel to assist you navigate this tricky situation.

Sperm donor child support liability

http://www.msnbc.com/news-nation/should-sperm-donor-pay-child-support