Visitation Options in Cases of Domestic Violence

Matt and Mary are going through the divorce. Matt alleges that during the marriage, Mary had engaged in a repeated pattern of physical and verbal abuse toward him. The couple had two children together, and the children live with Matt. Both parties want to know whether Mary may have visitation rights with the children.

In other words, the issue is as follows: would a Massachusetts judge allow the person with a history of physical and verbal abuse to have visitation with his or her children?

In Massachusetts, the rights of the parents to have custody of their minor children are generally equal.[1] Courts are concerned with the happiness and welfare of the child, including understanding the ways in which the child’s present or past living conditions affect the child’s physical, mental, moral, or emotional health. Id.

This right is not all-encompassing, however. Massachusetts courts may require that a parent have supervised visitation with children. Supervised visitation means that a “third party is present during the visits to ensure that the child is safe and that the visiting parent acts appropriately.”[2] There are many instances where supervised visitation is appropriate, including “when the visiting parent has a history of abuse toward that child or another child” or “when the visiting parent has a history of abuse toward the other parent.”[3]

As another consideration, an abused parent may continue to suffer abuse by the other parent. In this circumstance, the victim may obtain a restraining order under chapter 209A of the Massachusetts General Laws.[4] A 209A order requests that a Massachusetts judge order that the victim be given custody of the children, but this is rebuttable.

Moreover, the Supreme Judicial Court has held that “where there has been domestic violence between parties, judges must consider the effects that this violence has had on the child before making a decision about custody” and that physical violence is a violation of a basic human right, that is, to live in physical security.[5]

If a parent with custody of children believes that the children are at risk of abuse during visitation, the parent with custody may petition the court to end the visits between the children and the abuser and demonstrate that the visits are not in the best interest of the children.[6] If the parent with custody is at risk of harm, but the children are safe, the parent with custody may seek an order for a supervised exchange of the children.[7]

If you or your child(ren) are in serious or immediate physical danger, you should contact emergency personnel. You may wish to speak with an attorney with competence in this area of the law. Family law, domestic violence law, intimate partner violence law, and child law are intricate facets of the legal system and your family dynamics. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws. ch. 208 § 31

[2] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf<

[3] Id.

[4] Id. at 249

[5] Id. at 254 (citing to Custody of Vaughn, 422 Mass. 590, 595 (1996))

[6] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf< (citing to Donnelly v. Donnelly, 4 Mass. App. Ct. 162 (1976))

[7] Id.

What Provisions Should be Included in a Separation Agreement?

For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?

Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]

These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.

Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.

After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.

Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]

If you are seeking answers to your questions about separation agreements or general family issues, 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.

 

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Mass Gen. Laws ch. 208 § 1A

[3] Id,

[4] Id.

[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)

[6] Id.

Absent Parents and Termination of Parental Rights: New Case Law

A judge may draw a negative inference from a parent’s absence and find that the parent is unfit, terminating parental rights, according to a recent decision of the Massachusetts Appeals Court.

In Adoption of Talik, the Court terminated parental rights of a mother failed to attend a trial regarding reunification with her child.  Adoption of Talik, 92 Mass. App. Ct. 367 (2017). The child, born in 2013, tested positive for narcotics at birth and was placed in the custody of the Department of Children and Families, then shortly after discharged to the care of his foster parents.

DCF drafted a service plan for the mother, with the goal of reunifying the mother and the child. Under that plan, the mother was to participate in substance abuse treatment, provide toxicology screens, and attend visits with her child, among other tasks. Due to a lack of attendance, the mother was discharged from the program.

Soon thereafter, DCF’s goal changed to that of adoption. A relative of the child who resided in California expressed interest in having the child placed with her, and California Child Protective Services conducted a placement study. The study concluded that the relative’s home did not meet the proper standards for placement as applied in Massachusetts, and the child remained with his foster parents. The mother sued, claiming that DCF abused its discretion, and seeking to have the child placed in the care of the relative.

During the trial, the mother’s attorney was present, but the mother was absent despite having had notice of the proceedings. The judge issued a decision terminating the mother’s parental rights and approving DCF’s plan to have the child adopted by his foster parents. On appeal, the mother argued an abuse of discretion by the trial judge.

The Appeals Court affirmed the trial judge’s decision. “[A]n adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt,” the Court stated. “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child’s best interests.” Id., at 371-372.

The Court further explained that the trial judge has discretion to determine whether to draw such an inference, considering whether such inference is fair and reasonable based on all applicable circumstances. In the present case, the Court noted, the judge did not abuse his discretion, given the mother’s history of substance abuse, long history of domestic violence, failure to continue treatment, and noncompliance with the service plan.

If you need more information about Massachusetts family law, 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.

 

 

Alimony Modification and the Emancipation of a Child: Recent Case Law

A recent Massachusetts case addressed the issue of alimony modification where the event triggering a material change of circumstances was the emancipation of a child.

In Flor v. Flor, the parties’ divorce judgment had ordered the husband to pay child support to the wife until their child’s twenty-third birthday. Flor v. Flor, 92 Mass. App. Ct. 360 (2017). The divorce decree also included an express waiver of the wife’s right to seek past and present alimony, but an express reservation of her right to seek alimony in the future.

As the child’s twenty-third birthday approached, the wife brought an action for modification and sought an award of alimony from the husband. The trial judge sided with the wife, ordering the husband to pay $145 weekly payments in alimony. The judge found that the wife’s expenses increased since the divorce while the husband’s expenses decreased; that the wife had not held steady employment since the divorce; that the husband’s financial circumstances were far superior to the wife’s; and that the emancipation of the child, couples with the loss of child support payments, constituted a material change in circumstances.

The husband appealed, claiming that the trial judge abused his discretion. The husband argued two things regarding the lack of a material change in circumstances: “, (1) that any material changes in circumstances are wholly attributable to the wife’s own neglect, and (2) that the loss of child support cannot be viewed as a material change.” Id., at 363.

The Appeals Court sided with the wife, stating that the impact of the wife’s failure to work was too speculative to require the judge to have attributed income to the wife. The court held that the trial judge correctly applied the Massachusetts laws governing alimony modification. “The judge found that the wife’s expenses had increased, and that she was unable to cover those expenses, even with a minimum wage job, whereas the husband enjoyed increased assets, decreased expenses, and had the ability to support the wife,” the Court stated. “The judge thus concluded that the wife had carried her burden of demonstrating that a material change in circumstances existed.” Id., at 364.

The husband further argued that he had a reasonable expectation that his support obligations would terminate at his child’s emancipation, based on the separation agreement. The court disagreed. “[T]he express reservation of the wife’s right to seek alimony in the future renders any such expectation unreasonable on its face,” the Court said. “The agreement reflects a mutual understanding that should circumstances change, the wife would be able to seek spousal support.” Id., at 366.

If you need more information about the Massachusetts alimony law or about 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.

 

 

The Health of the Parties in Modification of Alimony

After a judgment has been ordered by the court for alimony there are certain situations where either party may take action to modify the judgment.[1] For a party to be successful on a claim for alimony modification, the party must prove to the court that there has been a material change in circumstances that would render a change in alimony just.[2] A judge will then consider all relevant factors to decide if a modification of alimony is appropriate.[3] One of the many factors the court will consider when modifying an existing order is chronic illness or unusual health circumstances of either party.[4]

Since alimony is modifiable the court has discretion to change the amount being paid in situations where the health of a party affects his or her ability to earn an income. When the party receiving alimony payments suffers from a severe mental illness, courts have been inclined to award a more generous alimony amount than if the party were in good health.[5] The judge will consider how severe the mental illness is and how it affects the receiving party’s earning capacity and ability to secure and maintain employment.[6]

In one Massachusetts case, Vedensky v. Vedensky, because the husband’s severe mental illness prevented him from working at his former level, the wife was ordered to pay an amount that exceeded her expected alimony payment. Similarly, a more generous alimony payment has been awarded in situations where the receiving party’s ability to work was compromised due to a physical illness.[7]

Courts have also been known to decrease or eliminate alimony obligations if the party making the payments is experiencing health issues. Where the health of a paying party results in a significate financial hardship, courts have found this to be a material change in circumstances.[8] The court will consider how the parties health affects their ability to work and subsequently their inability to continue making the payments.[9] After evaluating the status of the party’s health coupled with other significant factors, the court may decrease the payments or terminate them altogether.[10] Ultimately, it is up to the courts discretion to determine if the health of either party results in a material change in circumstances that should result in a modification of alimony.

If you need more information about the Massachusetts alimony law or about 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.

 

 

[1] Mass. Ann. Laws ch. 208, § 37 (discussing situations where a revision of judgement of alimony would occur).

[2] Bercume v. Bercume, 428 Mass. 635, 704 N.E.2d 177 (1999) citing Schuler v. Schuler, 382 Mass. 366, 416 N.E.2d 197 (1981) (laying out the standard for material change in circumstance).

[3] Id.

[4] Mass. Ann. Laws ch. 208, § 53

[5] Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 22 N.E.3d 951 (2014) (showing an example of a time the court did not abuse their discretion when modifying alimony due to mental illness)

[6] Moran v. Moran, 612 A.2d 26 (R.I. 1992) (showing a situation where a mental illness affected a parties ability to earn income.).

[7] Hogan v. Hogan, 822 A.2d 925 (R.I. 2003) (describing a situation where wife suffered from multiple sclerosis, compromising her ability to work).

[8] Parrett v. Parrett, Conn. Super. (Super. Ct. Oct. 14, 2009).

[9] ARTICLE: Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal Support, 46 Suffolk U. L. Rev. 13 citing Parrett v. Parrett, No. FA780159581S, 2009 Conn. Super. LEXIS 2855 (Super. Ct. Oct. 14, 2009) (After a 30 year alimony obligation, the obligor obligation to pay alimony ended due to hi a showing of his severe health problems).

[10] Id. at 7