Choosing a medical treatment is a tough decision for most people, but it becomes more difficult if the treatment is for a loved one. For any parent, there is nothing more terrifying and painful than the feeling that you cannot help your child. This is compounded if your child is ill and there is nothing that you can do to make your child better. Imagine, however, that there is something that you can do, but your ex is preventing you from taking steps that will help your child.
Imagine this scenario:
You and your ex have two children. One of your children has been diagnosed with a serious medical condition that requires expensive and experimental medical treatments. Your child’s physician tells you that without the treatments, your child’s condition is life-threatening. The physician also tells you that the treatments have a 33% chance of helping your child. Unfortunately, your ex and their new partner believe in “the power of prayer” and believe that if your child is meant to get better, then God will make your child better with prayer. Your ex has sole legal and physical custody. What can you do to help your child to receive these medical treatments?
Types of Custody:
In Massachusetts, there are four different types of child custody arrangements. In some cases, Parents can make their own arrangements.The judge will determine what parenting plan is in the best interest of the child or children. Sole legal custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Sole physical custody means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts Probate and Family Court judge decides that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about children. The court evaluates the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
What can be done?
When a substantial and material change in circumstances exists, one party may move to request that the court modify the current child custody arrangement. Because of this, the father from the example above may request that the court award him legal custody. This would allow him to make the medical treatment that he believes are in the best interest of the child. A court would likely evaluate the child’s best interests through the lens of the child, not the lens of the mother’s boyfriend’s religious beliefs. The court would likely modify the custody arrangement, allowing the father to make the sole medical decisions for the child. The court would not consider the mother’s boyfriend’s religious beliefs. This decision is between the parents, the court, and the child and is one that is only about the child’s best interests.
Suppose instead that another party—not a parent—wants to challenge custody using the facts above. For example, could a grandparent, a school, or a Guardian Ad Litem challenge the religious beliefs of the parents if the other party believes that the parents are not acting in the best interest of the child? The answer…yes and no. While another party may challenge the beliefs of the parents through a protective services agency, via parens patriae, a Massachusetts court would not take this power away from the parents if the treatment were so experimental so as to provide no chance at saving or helping the child. A Massachusetts judge would need to decide what is in the best interest of the child when making such decisions.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, 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 (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.
Raising a child as an unmarried couple can be difficult, but the state of Massachusetts has guidelines on how to navigate child custody issues. Some legal issues that unmarried couples will have to consider are: establishing paternity, child support, and visitation. While navigating these issues, it’s in your best interest to hire a competent family law attorney to ensure a fair arrangement that most benefits the children.
It’s important to keep in mind that the main goal of child custody is to come to an agreement where the parents are able to raise children together, while being apart. Every child custody agreement looks different and is very fact-specific depending on the couple’s situation. The one thing all parents have in common regardless of their marital status is that they are permanently connected through their children. And from this it is important to remember that these custody matters are being handled for the child. It is important to keep in mind that when carrying out these discussions to find the best solution for the child.
In Massachusetts, if child is born into a marriage, there is a presumption that the husband is the father of the child. However, for a child of an unmarried couple to have a legal father, paternity must be established. A father may establish paternity by signing the birth certificate at the time of the child’s birth or either parent may request a court order for genetic testing. Establishing paternity creates several rights for a child. Some of those rights include, giving the child access to their father’s medical history if they become ill, being financially supported by their father, and receiving access to their father’s services, such as their father’s pension, health insurance, inheritance, and social security.
Child support is a payment by one parent to the other and is one way for parents who don’t live together to share the financial responsibility of their child. In Massachusetts, it doesn’t matter if you are married to the child’s other parent, if you are the legal parent of the child you are required to support them. Child support payments a determined by the court after they review several factors including:
- The cost of raising the child, including medical bills and school tuition
- Monthly expenses of each parent (housing, health care, etc.)
- Income of each parent.
Usually, one parents will to be primary care taker who bears most of the financial expenses. Therefore it’s the court responsibility to consider the non-exclusive list of factors mentioned above to come up with an appropriate amount the other parent should pay in child support each month. Child support payments can be modified. A modification is warranted if there is a material change in either parent’s income or with the child’s needs.
A visitation order gives the parent who does not live with a child a way to spend time regularly with the child. In some cases, unmarried couples are able to come up with an agreement on their own and the court will enter the order. However, in other cases non-married parents are not able to come up with a visitation order that they both agree on. In situations where the parents are unable to agree, the court will enter its own agreement. Regardless of the parent’s ability to cooperate with one another, when establishing a visitation agreement, the main goal of the court is to come up with an arrangement with serves the best interest of the child.
Regardless of whether you are married or unmarried, the issues surrounding child custody can be complicated and cause emotional distress. It’s essential to keep in mind that when coming to an agreement with a child’s other parent that the child’s best interest is of the utmost importance. If you find yourself in the middle of a dispute regarding paternity, child support, or visitation it is best to seek help from a qualified family law attorney. Our attorneys are able to set emotional drives aside and see the most important thing for the child and represent that throughout the case. Our divorce, family, and domestic relations attorneys may be able to work with you to help resolving you family matters. Contact our offices by phone at (866) 995-6663 during business hours to schedule a free consultation.
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.
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.
As divorce attorneys, we often see litigation and settlement questions regarding individual retirement accounts (IRAs). A pension plan, IRA, or other type of account is considered marital property for purposes of distribution during a divorce.
New questions may arise, however, where unmarried persons engaged in a romantic partnership seek to designate each other as beneficiaries of an IRA. In a recent opinion, the Massachusetts Appeals Court addressed an issue concerning an IRA beneficiary who was the former romantic partner of the decedent, whose IRA account was in question.
In UBS Financial Services, Inc. v. Aliberti, three different IRA accounts were in question, in the amounts of $31,000, $18,000, and $276,000, respectively. The account holder originally designated his romantic partner (party to the suit) as beneficiary of all three accounts. In November 2013, the account holder expressed a desire to name additional beneficiaries, and he sent back completed and signed designation update forms for the two smaller accounts, but not the third one. The updated forms designated an additional primary beneficiary and two additional contingent beneficiaries, but they also indicated that each beneficiary should receive a 25% share of the account proceeds. UBS asked the account holder to clarify whether he meant to list each of the four as primary beneficiaries. The account holder did not respond and unexpectedly died the following month. The romantic partner then contacted the account administrator regarding each of the IRA accounts and requested that all funds be distributed to her as the sole beneficiary.
The administrator of the accounts happened to be the decedent’s former sister-in-law, who worked at UBS as a financial advisor. Although the beneficiary reached out to the administrator to check on the status of her claim, the administrator never provided a status update. Instead, she sent to the beneficiary several text messages with responses such as: “How big of a whore are you,” “You are the most worst piece of filth I have ever encountered,” and, “Are you so eager to grab the money. Did you even notice his death certificate is wrong? Oh no you were too busy ransacking.”
The Court agreed with the beneficiary that UBS unlawfully withheld from her the proceeds from the largest IRA account, for which the Court noted that UBS never received any documentation naming anyone other than the romantic partner as beneficiary. “ Considering the time value of money and the fact that no investment decisions were made regarding the largest IRA for over two and one-half years, the facts alleged in the pleadings support the inference that [the beneficiary] likely was damaged from the delay in distributing those funds,” the Appeals Court held. Accordingly, the Court held that the beneficiary properly pleaded her breach of contract claims.
Additionally, the Court held that the beneficiary also properly pleaded claims for breach of fiduciary duty, holding that a fiduciary relationship existed between the decedent and UBS. “As a fiduciary, UBS was obligated to administer the IRAs for the exclusive benefit of [the beneficiary] (assuming the truth of [her] allegation that she was the only proper beneficiary) while acting fairly and in her best interests,” the Court stated, holding that UBS was required to timely distribute the IRA proceeds to the beneficiary and to keep her otherwise informed of their status.
The Appeals Court then held that the beneficiary’s claims for infliction of emotional distress were not sufficient and should be dismissed. On the issue of violation of the Massachusetts consumer protection statutes, however, the Court again held for the beneficiary. “Based on the pleadings here, UBS … (1) denied Aliberti the funds to which she was entitled; (2) for multiple years; (3) without good reason; (4) until she was forced to take legal action and incur unnecessary costs and fees,” the Court noted, holding that those actions constituted a violation of Massachusetts General Laws chapter 93A.
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.
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 marital 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.