Affidavits of Care and Custody in Massachusetts

What is an affidavit of care and custody, and when does a party need to file one?

The short answer to the latter part of that question: a party needs to file an affidavit of care and custody whenever there is a proceeding involving the care or custody of a child. In addition to filing with the court, the party must also provide a copy of the affidavit to all other parties involved.

The affidavit must include relevant information regarding care and custody of the child or children involved. Per Massachusetts General Laws, chapter 209b, section 3, this includes the following:

• The present address of residence of the child and each address at which the child has resided during the past two years;
• The names and addresses of any party to any custody proceedings involving the child in the past two years; and
• Information regarding whether the party has participated in any prior custody proceeding involving the child, whether in Massachusetts or in any other jurisdiction; the capacity in which the party has participated; and copies of any pleadings or determinations which were involved.

The affidavit must be written in a form which is in conformance with the relevant court rules. In addition, it must be revised if any new relevant information is discovered regarding care and custody. Unless good cause is shown and an extension is granted by the court, failure to file this affidavit may result in a party being sanctioned by the court.

What Are the Discretionary Factors in Property Assignment, and How Do They Work?

Sam and Sally are going through a divorce. For years, Sam worked outside of the home while Sally stayed home to care for the couple’s children. Sam was responsible for the acquisition of most of the couple’s property. He now wonders whether the court will consider his contributions in deciding how to divide the marital property. Conversely, Sally wonders if her contributions as a homemaker will be considered by the court.

In short, both parties’ individual contributions will be considered in this situation. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the court considers as part of this process, most of them mandatory for the court’s consideration and analysis.

In addition to the mandatory factors, the court may also consider some discretionary factors:

• the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and
• the contribution of each of the parties as a homemaker to the family unit.

The fact that these factors are discretionary means, of course, that the court does not have to take them into consideration. However, these factors are still important and cannot be ignored by the court in the case of property division.

In one case, where the husband was responsible for the acquisition of most of the parties’ property, the Supreme Judicial Court held that the trial judge property considered the parties’ contributions and the sources of the marital property in dividing it. The Court noted: “an equitable, rather than an equal, division of property is the ultimate goal…To that end, a judge is required to consider the respective contributions of the parties to the marital partnership, and a disparity in contributions may be reflected in the distribution of the inherited and gifted assets. A judge may also consider, as the judge clearly did in this case, the source of the assets, each parties’ role in managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property. In light of these considerations, and in light of her conclusion that the husband’s contributions to the marital estate greatly exceeded those of his wife, the judge’s determination to award the inherited and gifted assets to the husband, while awarding the wife the bulk of the jointly produced assets, was well within her discretion.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Adoption Cases: When is Parental Consent Needed, and When Might the Court Waive It?

Typically, written consent of certain parties is required before an adoption may take place; the requirements are set forth in Massachusetts General Laws, chapter 210, section 2. If the child being adopted is over the age of 12, consent by the child is needed. If the person being adopted is an adult who is married, consent of the person’s spouse is also needed.
In addition, written consent of the “lawful parents” must also be obtained before the adoption may go forward. If the child was born during a valid marriage, both biological parents must provide consent. If the child was born out of wedlock, only the consent of the mother is required; the father is entitled to notice of the adoption proceedings and may request custody, so long as he was adjudicated the father, or has filed a parental responsibility form with the Department of Children and Families.

According to the statute, the form of written consent must take the following shape:

I, as the (relationship) of (name of child), age , of the sex , born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).

I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED.

Under some circumstances, however, the courts may dispense with parental consent and allow an adoption to proceed without it. As with all issues dealing with custody, the court will use the “best interest of the child” standard: the court may dispense with parental consent only where it is in the best interests of the child to do so. According to Massachusetts General Laws, chapter 210, section 3, there are many statutory factors which the court will consider in determining parental fitness. Some of them include:

• Abandonment of the child;
• Severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
• Willful failure to visit the child where the child is not within the parent’s custody;
• A prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child
based on such prior pattern or assault; and many others.

In one important case, the Supreme Judicial Court considered whether the trial judge erred in holding that a mother was proven by clear and convincing evidence to be an unfit parent, dispensing with the requirement of parental consent in the adoption of her two children. “The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary’s long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, serious parental neglect, abuse and misconduct, made her an unfit parent,” the Court noted. “The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she ‘had made no progress in ways that would assist her in getting her children back.’”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

 

[1] Mass. Gen. Laws, ch. 210, s. 2.

[2] Mass. Gen. Laws, ch. 210, s. 3.

[3] Adoption of Georgia, 433 Mass. 62 (2000).

[4] Id., at 66.

Desertion as Grounds for Divorce

Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Future Income and Property Acquisition in Dividing Marital Property

Zelda and Zack have been married for ten years and are undergoing a divorce. Zack recently found out two things: first, that Zelda has won a professional award which will likely allow her to increase her income substantially in the future; and second, that Zelda is likely to come into a large inheritance from her mother, of which Zack had no idea. Zack wants to know if the Massachusetts Family Law Court is likely to take these two things into consideration when dividing the marital property and ordering alimony.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how to best divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process. Massachusetts General Laws, chapter 208, section 34 defines the factors the Court will use in determining how marital property should be divided. Under the statute, the Court may include in its analysis the opportunity for the parties to acquire future income and property.

The opportunity to acquire future income and property is a comprehensive factor: it includes the likelihood of earning future salaries, bonuses, royalties, and other sources of income. It also includes family trusts, inheritances, and other property which may befall one of the parties in the future.

In one Massachusetts case, the Court considered the effect of the husband’s Nobel prize on his future acquisition of assets. As the Appeals Court explained upon appeal:

In explaining her division of assets, the judge relied “heavily” upon the statutory factor of the “ability of the parties to acquire future income and assets.” The judge concluded that the husband’s ability is excellent, as he retains a retirement asset in which his employer “matches his future contributions dollar for dollar,” and his “receipt of the Nobel prize opens wide new horizons for his income potential.” The wife’s future prospects were found to be “paltry and stagnant by comparison.” The judge found that the wife had “no likelihood of acquiring significant future assets or increasing her earned income.”

The Appeals Court affirmed, holding that the trial court properly considered the above factors in computing the parties’ opportunity to acquire future income. “The husband’s and wife’s ability to acquire future income and assets are therefore strikingly different and justify the judge’s heavy reliance on this factor,” the Court noted.

In the case of future property acquisition, however, the Court will carefully consider whether there is a realistic prospect of receiving the future income or property, or whether future acquisition is merely expected. If it’s the latter, the Court may not include it in its consideration of assets. In one case, the courts considered a husband’s future interests in many different family trusts and other property. In some trusts, the husband was deemed to have a present, enforceable right, and those trusts were ordered by the court to be considered as opportunity for future acquisition of capital assets and income in determining alimony and child support. In some other trusts, however, the husband’s interest was deemed too remote or speculative, and those trusts were not considered to be part of the marital estate.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.