New Case Law Addresses Ex Parte Protective Order

A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating.

The recent case of G.B. v. C.A. involved veracious protective order requests against a defendant who was a Boston police officer. In that case, the parties were in a dating relationship for three years. The day after the relationship ended, the defendant appeared at the plaintiff’s workplace and attempted to return ceramic flowers to her. A struggle ensued, and the video of the struggle was captured by surveillance cameras from two different angles. The video showed that the plaintiff threw the flowers in the trash; the defendant retrieved them; and the plaintiff then lunged at the defendant, pointing long fingernails at his face. As the parties struggled, they went off camera for some time, and the plaintiff eventually landed on the ground and injured her face and lip.

The plaintiff attempted to call the police, and the defendant tried to take her cell phone away from her, boxing her into a corner. When a 911 operator called back, the defendant answered the plaintiff’s phone. He then walked across the street to a police station, and officers came on the scene and transported the plaintiff to a hospital for treatment.

The following day, the parties appeared in court, each seeking a protective order against the other. The judge viewed the video recording of the struggle between the parties and declined to grant either party’s request. Subsequently, the matter was investigated by Boston Police Department’s domestic violence unit, which eventually filed criminal charges against the plaintiff. The defendant was not charged, though the matter was also referred to the BPD’s Internal Affairs division.

About six weeks later, the plaintiff filed for another protective order against the defendant, alleging that he followed her in his car, intimidated her, and had a friend call her and threaten her not to go to court. The following month, a clerk magistrate heard the criminal charges against the plaintiff. The clerk held the application “in abeyance” for sixty days, told the parties to stay away from each other, and noted and that, if there were no further incidents, the criminal complaint would be dismissed.

Subsequently, the plaintiff filed for another protective order, alleging that the defendant followed her, carried a gun, and drove by her work, that he had contacted her on an Internet application called “WhatsApp,” and that he “went to Housing to try to tell lies.” A third judge denied the request.

The plaintiff filed for a protective order for the fourth time, about a month later. This time, because the plaintiff had moved, she was referred to a different court for her filing. The plaintiff recounted the original altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also stated that she was “tired of being afraid” of the defendant and claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates.

The fourth judge granted the protective order ex parte, then scheduled the matter for further hearing. Another judge heard the matter and extended the protective order for a year. The defendant appealed, claiming that the judge abused his discretion in granting the order. The defendant argued that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse, and that the only “new” evidence presented by the plaintiff in support of the request was an incident where the defendant drove by the plaintiff’s workplace.

The Appeals Court disagreed with the defendant, holding that the trial judge was within his discretion to find for the plaintiff, based on the totality of the circumstances. The court explained that “it was ultimately up to the judge to determine the credibility of the witnesses. He could have believed her version of events, or not. Indeed, he would have been within his discretion in finding that the plaintiff was the initial aggressor in the December, 2015, incident, or that it involved mutual combat. Neither finding, however, would negate the further discretion afforded the judge to consider this incident in the totality of the circumstances surrounding the request for the 209A order at issue in this case.”

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Financial Errors During a Divorce Proceeding

Divorce can inevitably become a very stressful period in a person’s life. As emotions run high and become all-consuming, many parties do not realize that financial mistakes can be made during a divorce. This article will discuss some of the financial errors your divorce attorney can help you avoid during this high-stress time.

It is likely you and your spouse share many financial commitments—credit cards, a mortgage, health insurance, and variety of monthly bills are just a few examples. Separating these commitments is incredibly difficult, and our divorce attorneys are aware of the emotional toll this reality can take on your life.

The biggest asset you will likely have trouble separating is the marital home. As a first practical point, it is imperative that if you or your spouse stay in possession of the home, you are able to afford to do so. Our attorneys are aware that there are many memories and emotional attachments that are rooted in this home. In the moment, you may just want to keep this home since it means a lot to you, but you must ensure that you can afford to upkeep the property, as well as pay the mortgage and taxes on the property independently. If you think you would be unable to meet these obligations, we advise you not to make the financial errors of relying upon your former spouse to pay for your marital home.

While you may want to avoid dealing with separating your assets from your spouses, this is essential in a divorce proceeding. Leaving financial accounts and obligations as joint ones can create a number of devastating situations—for instance, your former spouse running up debt on credit cards or refusing to separate joint bank accounts. These situations can lead to long-term financial hardships, so our divorce attorneys strongly recommend moving forward with this difficult, but necessary step.

Another oversight that can lead to financial errors in a divorce is failing to remove your former spouse from a will or trust. During a marriage, many people will name a spouse the beneficiary of a will or trust. As it is likely that you do not want any money or property going to your former spouse after the divorce settles, it is encouraged to change your will or trust as soon as possible. Doing this simultaneously along with separating assets will avoid any mishap in the future which would give your former spouse the inheritance you wanted him or her to have while your marriage was thriving.

Taxes are another financial area that you may forget about during a divorce proceeding. In the Commonwealth of Massachusetts, it is important to know the difference between spousal support and child support payments. While you may be aware that child support may only be used for your children, and alimony may be used as spousal support, you may not be aware that alimony payments are taxable, while child support payments are not.

Also, do not forget that these payments often eventually end, and it is important that you are financially self-sufficient. For instance, child support payments may stop when a child turns 18 years old, or when a child completes their college education. Additionally, based on the type of alimony you receive, payments may end if you remarry or cohabitate with a new partner, or when you become financially stable. In the moment, you may forget that these support payments have an inevitable end date, so please be sure you are not fully reliant on these support payments.

Lastly, do not rely on your ex-spouse to help you with any of these payments. Even if your ex says he or she is going to be helpful with credit card payments, car loans, or other bills, remember that your name is on them and put yourself first. If your former spouse does not hold up his or her commitment, these costly financial errors can negatively affect your future.

If you have questions or concerns about issues involving finances, family law, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

Emancipation of Children and ROTC: New Massachusetts Case Law

When it comes to emancipation of children for purposes of child support, does joining the Reserve Officer Training Corps (ROTC) in college equate to joining the Armed Forces? This was the issue addressed by the Massachusetts Appeals Court in a recent decision.

In Bobblis v. Costa, the parties were divorced in in 2000. The mother retained custody of the parties’ children, and the father agreed to pay child support. The separation agreement between the parties provided that the father would continue paying child support until the child reached the age of emancipation, which in this case would be 23 in the event the child was enrolled in a college or post-secondary program. The agreement further provided that the father would cease to pay child support in the event that the child entered the Armed Forces.

In August of 2012, one of the parties’ children enrolled in a college program. He later also joined the ROTC on campus, having been offered a scholarship beginning in his junior year. The child signed two documents: a cadet contract, which governed his conduct as an ROTC member during college, and an enlistment document, which governed his enlistment after college. After graduation, in 2016, he joined the Army as an officer.

Subsequently, the father claimed that the child joining ROTC was equivalent to the child to joining the Armed Forces, which served as an event of emancipation. The father filed for retroactive modification, seeking to end his child-support payments as of the child’s junior year of college, when he first enrolled. The probate and family court judge rejected the father’s argument, and the father appealed.

The Massachusetts Appeals Court looked closely at the two documents signed by the child, ultimately finding that they did not serve as an event of emancipation. The Court held that the documents did not indicate that the child entered the Armed Forces as a junior, but rather after he graduated.

“The contractual provisions of the enlistment document and cadet contract, as well as the statutory authority governing the ROTC program, demonstrate a clear distinction between participation in an ROTC program and military service under the ROTC program’s terms,” the Court noted. “As the trial judge noted, “[an] ROTC cadet is simply a scholarship student who receives some special training and has an obligation to perform military service or repay the funds received after participation in the program.” Importantly, the cadet contract and 10 U.S.C. §§ 2101 et seq. contemplate the possibility that a cadet may never enter active duty, for a number of reasons, and in such circumstances require the cadet to repay the Army for the scholarship.”

The Court also looked to other federal statutory and decisional law in contrasting ROTC from military service. As some examples, the Court explained, federal law specifically distinguishes between ROTC and armed services in providing life insurance and death benefits. The Court affirmed the decision to deny a retroactive modification of child support payments.

If you have questions or concerns about issues involving child support, modification, family law, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

New Case Discusses Emergency Housing of Families in Massachusetts

When a family is experiencing an emergency, a few things could be worse than being unable to stay in the comfort of one’s own home. Unfortunately, this is a reality for many families. Just recently, the Merrimack Valley experience devastating gas explosions which displaced many families.

Some families face this issue more permanently, however, as they struggle with homelessness: roughly 3500 people are currently served by the emergency assistance program of the Massachusetts Department of Housing and Community Development. But to what extent is that assistance available, particularly when it comes to families who fall under the Americans With Disabilities Act (ADA)? This was an issue addressed in a recent Supreme Judicial Court case, Garcia v. Department of Housing and Community Development.

The case involved a class action suit, brought by plaintiffs who contended that the department failed to promptly place the plaintiff families in shelters within 20 miles of their home communities, which would have better allowed the plaintiffs to be restored to those communities as soon as possible. The lawsuit also alleged that the department failed to comply with the ADA, among other federal and state laws, in regards to plaintiffs’ children with disabilities. The Court explained that in recent years, the Department greatly expanded the number of shelter beds provided across Massachusetts and used motel placements as a last resort only when overflow needs require it, or in limited exigent circumstances. According to the plaintiffs, this practice resulted in preventing them from receiving adequate accommodations for family members who were protected by the ADA.

At the trial level, the plaintiffs were certified as part of a class action suit by the judge. Before the completion of the discovery process, the plaintiffs asked the court for a class-wide preliminary injunction, ordering the Department to use motels to the extent necessary in order to comply with the 20-mile statutory requirement and provide adequate accommodations. The judge allowed the injunction in part, as applied to participants whose ADA accommodation requests had been approved by DHCD, but not yet implemented, and whose requests could be satisfied by a motel placement. The judge denied the injunction as to any other members of the class or claims.

The trial judge then concluded that DHCD likely had violated regulations under the ADA, requiring public entities to provide reasonable accommodations in order to avoid discrimination on the basis of disability and prohibiting public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability.

On appeal, the Supreme Judicial Court first discussed the preliminary injunction. “The judge presumed that if an [emergency assistance] participant had requested a transfer as part of an ADA accommodation, and [the Department] agreed to grant the transfer ‘when administratively feasible,’ then the shelter unit where the [emergency assistance] participant resides in the interim is ‘ADA noncompliant[,]’” the Court stated. “His conclusion, however, rested on the incorrect assumption that any delay in providing a reasonable accommodation is per se unlawful. The judge also concluded that DHCD’s motel policy likely violates two other regulations, which prohibit public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability…His conclusion with regard to these two regulations was premised on a factual predicate that is not supported by the record.”

The Court noted that what constitutes a “reasonable accommodation” is a factual question which must be decided on a case-by-case basis. Likewise, in this context, “[d]etermining whether unreasonable delay has occurred depends on the specific circumstances, including the length of delay, and whether the defendant has provided alternative accommodations in the interim,” the Court stated. It was error for the trial judge to rule that only an immediate transfer would constitute a reasonable accommodation, the Court held, especially on a limited preliminary record. The Court vacated the trial judge’s order to allow the injunction.

If you have questions or concerns about issues involving family law, domestic relations, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

 

 

 

Marital Contract and Comity: New Massachusetts Case Law

Increasingly in our global society, legal issues of an international scope arise in family law cases. A recent appellate case dealt with one. In Ravasizadeh v. Niakosari, the Massachusetts Appeals Court decided for the first time an issue regarding enforceability of a mahr, which is an Islamic marriage contract, in the Commonwealth’s courts.

The parties were married in 2000 in New York and separated in 2012, by which time they lived in Massachusetts. Before they married, they signed a marriage contract which provided that the wife would receive 700 gold coins from the husband in the event of a divorce. Under Iranian law, the wife was to receive only those gold coins and three months of alimony from the husband. The husband owned property in Iran, which he had inherited from his father. During the marriage, the parties enjoyed an upper-middle class lifestyle and owned property together.

At trial, the judge entered orders regarding custody and child support, and also ordered that the parties’ property be sold and the proceeds be split equally. The judge included in his calculations the property of the husband in Iran. In light of the equitable division, and finding that the wife could continue enjoying the lifestyle to which the parties were accustomed, the judge declined to award any alimony.

During the pendency of the litigation, the wife also filed a case in the appropriate Iranian court to enforce the mahr. The court found in the wife’s favor. The husband appealed to the Iranian court of appeals, which also found for the wife. The husband appealed to the Supreme Court of Iran, and that action was still pending during the Massachusetts litigation.

Back in the Massachusetts court, in addition to the division of property above, the trial judge also held that the 700 gold coins were the property of the wife. He ordered the husband to pay into the court in Iran the value of the gold coins in order to satisfy the judgment. Finally, the judge also ordered that even if the Supreme Court of Iran were to reverse and find for the husband, the husband must pay an amount equal to one-half of the money to the wife in order to satisfy liability.

The husband appealed, claiming that the judge had no authority over the marital contract, especially as the marriage contract was already being litigated in the Iranian courts. The husband also argued that the judge’s calculation created a disproportionate division of marital assets in favor of the wife.

The Court affirmed the lower court’s decision in part and reversed in part, holding that the portion of the decision enforcing the marital contract should be reversed, while the judge’s order dividing the rest of the property should stand. The Court noted that the trial judge properly used all of the factors involved in dividing property equitably, that the judge had broad discretion to make property decisions, and that the judge’s rationale and findings provided a detailed explanation for the conclusions he reached.

However, the Court held that jurisdiction over the marital contract laid with the Iranian courts. It explained and enforced the doctrine of comity, which allows the Massachusetts courts to recognize and enforce valid judgments rendered by a foreign court.

“It was error, therefore, to order the husband to pay the mahr to the wife in the event that the Supreme Court of Iran finds in his favor; in the alternative, it was error to order the wife to split with the husband any judgment that she receives, if the Supreme Court of Iran affirms the earlier judgment in her favor. That is to say, if the Supreme Court of Iran does not enforce the mahr, the Probate and Family Court is without jurisdiction to do so; if the Supreme Court of Iran does enforce it, the Probate and Family Court is without jurisdiction to dispose of it differently,” the Court stated.

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

LGBTQ Issues in Family Law

Massachusetts generally recognizes marriages and divorces between LGBTQ-identified persons, but the issues that may occur for LGBTQ-identified people are as unique and nuanced as people themselves.

Note that there is not a separate or different process for separation and divorce for same-sex couples. In the case of all marriages, whether same-sex or heterosexual, the process for separation and divorce is the same in Massachusetts. The assignment of marital property and alimony matters are decided using the same standard whether it’s a hetero or same-sex marriage, through a process called equitable distribution. Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage as well, by weighing what is in the best interests of the child.

Still, specific family law issues may arise for LGBTQ-identified persons. A skilled Massachusetts family law lawyer can help you to navigate the complexity of these issues. As some examples, take the following fact patterns:

  1. Henry and Sue are a cisgender and straight couple. This means that Henry and Sue identify with their born and identified sex. After a four-year marriage, Sue decides that she wants to date a woman. Henry wants a divorce. Are there any different considerations that Henry needs to know?
  2. Josh and Ben met in college. After dating for two years, they decided to live together. At the time, they could not get married in Massachusetts but lived together in Massachusetts, had a ceremony with their families to proclaim their commitment to each other, and held themselves out in public as a partnered and committed couple. Eventually, the Commonwealth of Massachusetts recognized equal marriage. Josh and Ben know want to know: are they legally married? If so, when are they considered to have been married? Is their marriage date the date that they had a commitment ceremony? Do they need to have a formal marriage or wedding ceremony? Suppose that they divorce one day in the future—what is the date that a court would use for purposes of alimony?3. Sandra and Daryl have young twins, Sarah and Frank. One day, Sandra, a stay-at-home mom, sees her son Frank in one of Sarah’s outfits. Shocked, but still in support of her child, she begins to take Frank to receive mental help support. Eventually Frank is diagnosed with Gender Dysphoria under the DSM-V. Sandra decides that she wants to support Frank now as Frankie. Sandra wants her child to publically identify as they wish. Eventually, Daryl learns of this and is outraged. Daryl wants to force Sandra to stop “encouraging” their child to be who they are. Does either party have any legal recourse or ways to protect their transgender kid?4. Betty and Joanie identify as a lesbian married couple, married and living in Massachusetts. After 6 years of marriage, Betty travels to California for business. After drinking too much and contrary to her better and usual judgment, Betty has an affair with a bisexual man. Unbeknownst to Betty, she becomes pregnant. She tells Joanie about the incident and, upon learning that she is pregnant, decides to keep the child. The couple decides to keep and raise the child together. They track down the man from California to tell him that they are pregnant and to offer to him the chance to meet the child one day. He is upset and wants full custody. Who has the legal right to custody of the child?5. Jackie and Margaret were married in Massachusetts, but now want to divorce. After they divorce, Jackie decides to return to the in vitro clinic to try to become pregnant with the embryo that both parties created together during the course of the marriage. May Jackie use the embryos? May Jackie use them regardless of whether they contain Jackie’s or Margaret’s specimens?

    While there will likely not be a big different for Henry’s divorce above, there are significant considerations that the other couples must consider. For example, Josh and Ben may not be considered to be legally married, especially if they were not really holding themselves out as married. Daryl may make his arguments against supporting his transgender child, but a Massachusetts judge would look to the best interests for Frankie and likely side with Sandra and Frankie. Betty and Joanie would likely be the legal parents of the child because a child born within a marriage is presumed to be the child of the two people in the marriage. The man with whom Betty had the affair may have a paternity burden to overcome, and would need to show that it is in the best interest of the child for him to have custody. Jackie and Margaret’s arrangement for the embryos would likely take precedent, but a mediator might be able to help the former couple to navigate this issue.

    If you have an issue related to LGBTQ issues, or general family law, you should contact a competent domestic relations lawyer or family law attorney who appreciates the diversity and value of all families. Our experienced professionals may be able to work on behalf of you or your family. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.

Domestic Abuse and Intimate Partner Violence

Note: If you are in an emergency situation, please do not hesitate to contact local authorities. Warning: this post may trigger strong emotions in you.

Very little is more precious to most people than their loved ones. Our family and loved ones are supposed to be our strongest systems of support. They are supposed to love and encourage us to be our best selves. For many people in situations involving domestic abuse, intimate violence, sexual violence, or other forms of abuse, however, the same people whom they hope will love them are also the ones who hurt them.

In Massachusetts, abuse is defined as the occurrence of one or more of the following acts between family or household members: 1. Attempting to cause or causing physical harm; 2. Placing another in fear of imminent serious physical harm; or 3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.

Domestic abuse does not apply to a romantic relationship only. The abuse may involve parents, children, partners, spouses, or other family members. Although domestic abuse is commonly thought of as a criminal law issue, domestic abuse is also important in the civil and family law contexts.

When a victim of a domestic abuse situation is abused, he or she may want to know: may I pursue a civil action in tort against my abuser? May I be compensated for my injuries or my emotional suffering? In Massachusetts, the answer is most likely “yes,” but each case is different.

Suppose a woman named Kelly lived her long-term boyfriend Peter for two years. They have two children and a dog named Jojo together. At the start of their relationship, Kelly and Peter had a wonderful love affair. They were kind to each other. They went on vacations as a family. Kelly’s parents welcomed Peter as one of their own. Peter did not speak with his abusive father. His mother had passed away prior to the start of a Peter’s relationship with Kelly. After a year of dating, Peter began to exhibit signs of abuse against Kelly. He would tell her that he did not want her to be with her friends as much. He would accuse her of cheating on him. As time progressed, the abuse worsened.

One Friday evening, Kelly began to get ready to have a night out with her friends from college. She put on a black dress. Peter did not want her to go out wearing a dress. When Kelly refused to change, he struck Kelly in the face, causing injuries to her face and also causing her to fall. As she fell, Kelly hit the edge of her bedroom’s wooden dresser. She also fell on one of Jojo’s dog toy bones, which caused her to sprain her wrist. Kelly had several medical appointments and missed time from work. She did not tell anyone about the incident, because she hoped that Peter would change back to the person he used to be when she first met him.

A few months later, Peter began to hit or push Kelly with more frequency. He also deleted all of her contacts on her phone, broke her laptop, and threw a book at her. One evening, Peter pushed Kelly and accidently struck one of their children who had tried to defend Kelly from an attack. As the abuse worsened, so did the injuries. Eventually, Kelly decided to call law enforcement and looked for a safe haven for the two children and Jojo. Fortunately, Kelly and her children and Jojo were able to permanently stay away from Peter and receive the help that they needed.

Generally, a victim in Massachusetts has three years from the date of the injury-producing event to file a lawsuit against a defendant-abuser. In the example above, Kelly could potentially bring a civil action against Peter for the damage to her person and possibly her property.

It is basically undisputed that Peter assaulted Kelly and her children. In Massachusetts, an assault is an act creating a reasonable apprehension of fear in another person that is of immediate harmful or offense contact to the victim’s person. Assault requires the element of intent. Damages–such as monetary or bodily injury damages–are not required to prevail in an assault. Peter’s assault and battery against Kelly may be enough to warrant her working with a competent attorney to file a civil complaint against him. She may also work with law enforcement and her attorney to keep Peter away from her children. It is likely that the family court would be involved, especially for the safety of the children.

If you have any questions, thoughts, or concerns about issues involving domestic violence, intimate partner violence, abuse, or other issues in family law, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.

Step-Parent Adoptions

Today, society embraces blended families. Heartwarming stories about adoption and the wonderful gift of having a child abound. Often, a new marriage following a divorce brings children into the equation.

If you are a new step-parent, you may be interested in the possibility of adopting your step-child. Adoption may create a closer bond with you and your step-child, as well as a more stable family unit. This process can become complicated and complex, but also very rewarding for both you and the child. As family attorneys, we frequently deal with step-parents’ interest in adoption and are happy to assist you in this process.

In Massachusetts, a step-parent may adopt a step-child. To begin this process, a step-parent may file a petition to adopt, as long as the child is the step-parent’s spouse’s child. If the child you are adopting is over 14 years old, you must also obtain his or her consent to confirm that the child would like to be adopted. Additionally, your spouse must have legal and physical custody of the child. Legal custody means that a parent makes important decisions on behalf of their child regarding education, religion, and medical decisions. Physical custody determines where a child’s primary residence is.

For an adoption petition, a child must be in physical custody of the step-parent and spouse-parent for at least six months before the petition is filed. Also, it is important to know that the biological parent without custody must relinquish any parental rights in order for the adoption to take place. In these situations, we encourage step-parents to assess their family dynamic, the biological parent’s involvement in the child’s life, and what would be in the best interest of the child. Please be aware that the Commonwealth encourages both biological parents to be in a child’s life. If this is occurring, then step-parent adoption may not be possible, as both biological parents have an active role.

However, a step-parent may be forced to take on the responsibility of a biological parent. There are many instances in which a child can suffer severe physical or emotional damage if they remain in connection with their biological parent. Physical abuse, emotional abuse, substance abuse, incarceration, and death are just some of the reasons why a step-parent may be put in a position to adopt a stepchild. It is important to be sensitive to the reasons why a biological parent is suddenly unfit to be part of their child’s life. While you may be a better suited parent, custody and adoption hearings can be very contentious. As there are many parties, each wanting different outcomes, our family law attorneys will help you navigate the adoption process. Also, we will assist in ensuring that any court orders or pre-existing agreements are terminated by the time an adoption takes place.

Once the petition is approved, the adoption process differs from a standard adoption. A standard adoption involves the Commonwealth’s analysis of whether you and your spouse would be fit parents. However, as it is likely your spouse is a fit parent, and it is their child, home studies and state intervention are not required.

Once you adopt your stepchild, you take on the legal and physical rights of becoming the child’s guardian. As a responsible parent, you take on the responsibility of financially and emotionally supporting your spouse’s child. With your spouse, you will have the ability to make decisions on a child’s education, medical care and religion. You will also have the opportunity to give your stepchild benefits, such as health insurance.

Additionally, the process changes the child’s birth certificate, replacing the absentee parent’s name with yours. Through this process, your stepchild will be able to inherit under your will. In this case, as you are now the guardian of this child, they can inherit through intestacy under a will, even though you are not biologically connected. Also, if you and your spouse divorce, you may be liable for child support and custody of your stepchild since you have taken financial responsibility of this child.

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

The Best Interest of the Child Standard

When embroiled in a divorce, children play an important factor in many decisions such as child custody and child support. As these issues can greatly impact a family, our family law attorneys educate parents and soon-to-be-divorcees on how the court views these important issues.

Child custody decisions can create a lot of tension for children, divorcing parents, and overall family dynamic. Our family law attorneys know how daunting this can be—possibly, you won’t be seeing your children every day, and the amount of time you have with them is becoming uncertain. In this post, we will be highlighting the “best interest of the child” standard, which is an integral part of the court’s decision and a common standard at the heart of child custody decisions.

If you and your former spouse are unable to reach an amicable agreement regarding child custody, your family’s future will be determined by a judge. In the Commonwealth of Massachusetts, the judge takes a deeper look into a child’s lifestyle and what would be best suited for the child when making this decision. Instead of investigating what may be best for each parent, the judge solely focuses on the child. As every divorce is different, the “best interest of the child” standard is viewed is on a case-by-case basis. Because children have different needs, and family situations are wide-ranging, the courts of the Commonwealth take a fact-specific approach when determining what is in a child’s best interest.

Massachusetts courts and law encourage a custody arrangement where the parents share both legal and physical custody. Physical custody determines where a child’s primary residence is, and legal custody involves important decisions made for a child. These can be decisions regarding medical issues, religion, and education, just to name a few. Generally, if one parent is being granted sole custody in either of these areas, the court finds that financial instability, substance abuse, domestic violence, and other toxic situations negatively impact a child’s upbringing. As the primary caretaker for a child, a sole custodian will make all of the major decisions for the child.

As a parent, you may be wondering what factors go into what the court defines as the “best interest of the child,” since it is so fact-specific. While the standard is not exact, the court does look at several areas in determining what is in the best interest of your child. Factors include a child’s health, safety, and general quality of life. If your child has a physical or mental disability, the court will look into what would be best for the child’s situation. Also, if you have multiple children, the court often wants to keep families intact, so it likely the judge will want to keep siblings together.

Even though the court is generally focused on the child, your ability to parent is crucial in determining in what is in the best interest of the child. As noted above, the court does not want to place a child in a toxic situation. While more extreme issues such as substance abuse and criminal activity will be examined, the court can also look into your physical and mental health, work schedule, parenting style, and the type of home environment you provide. If the court finds that these factors positively impact your child and their development, it may be more likely to provide you with custody.

As these are incredibly broad areas, the judge can choose to determine this standard as he or she sees fit. Often, this information allows the judge to make a decision based on how fit a parent is to be a stable, supportive caretaker for their child. Since there are so many angles a judge can take regarding what is in your child’s best interest, our family attorneys can help you prepare for this area of divorce to do what is best for your children. As you will likely need to testify to a judge why you should be rewarded custody, our attorneys will adequately prepare you, so you are awarded custody of your child.

If you need more information surrounding the best interest of the child standard, child custody, or family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.