Keeping Children from the Presence of a Third Party During Custody Arrangements

Leila and Liam are divorced and share custody of their two children. Liam has a new girlfriend who has moved in with him. Leila disapproves of their living arrangements, which she claims are against her moral beliefs. She wants to know whether she can prevent Liam from having his girlfriend around her children. What will the judge do when encountering this and other third party custody issues?

When determining whether a party may prevent the other party from keeping the children in the presence of a third person, the Courts will weigh whether any adverse impact has been made on the children.

In a key Massachusetts case, the Court granted custody to the father; the mother appealed, asking the Court to prohibit the husband from allowing their youngest child to be in the presence of the husband’s new girlfriend, with whom he was cohabiting. [1] The mother argued that her children were being exposed to immoral behavior by seeing their father cohabit with another woman to whom he was not married. She cited to a number of older laws, such as those which once prohibited cohabitation.

The Appeals Court held that the child needn’t be prohibited from being in the presence of the father’s new partner, because there was no evidence that any of the three children were adversely impacted. The Court noted: “in the usual case, judges should avoid making moral judgments on the lifestyles of proposed custodial parents, recognizing that such judgments are appropriate only when it can be shown that a parent’s lifestyle has a direct and articulable adverse impact on the child, or where there can be no real dispute in the circumstances of the particular case that the behavior of the custodial parent is related to his or her parenting ability.”[2]

In another case, the Appeals Court decided on custody matters between a husband and wife, where the wife was engaged in an incestuous relationship with her biological father. The Court granted primary custody to the wife, holding that she was the primary caregiver and that the husband exhibited little inclination to take care of the child while they were residing with him. However, the Court also noted the importance of keeping the children’s grandfather away from them. The Court prohibited the mother from allowing the children to have any contact with her father. [3]

“There can be no real dispute that if the wife and [her father] were to engage in an ongoing incestuous relationship to which the minor children were exposed, directly or indirectly, then at some point there would be a direct and articulable adverse impact on the children,” the Court noted. “In these circumstances, it would be error to omit such an essential prophylactic measure to safeguard the well-being of the children, especially one that was already in place and relied on by the judge and other experts at the award of physical custody.” [4]

In a recent decision, the Court, however, declined to apply the decision in B.B.V. to the claims of a mother, whose husband was having an adulterous relationship with the parties’ former au pair, that the children ought to be kept from the presence of the au pair. [5] The Court stated: “we reject the mother’s argument that there are “compelling” parallels between this case and B.B.V. v. B.S.V…where we imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V ., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between their mother and grandfather, and we acknowledged that such exposure ‘would be a direct and articulable adverse impact on the children.’… In this case, comparable evidence of a ‘direct and articulable adverse impact on the children’ as a result of the father’s relationship with the former au pair is noticeably lacking.” [6]

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

[1] Fort v. Fort, 12 Mass. App. Ct. 411 (1981).

[2] Id., at 415.

[3] B.B.V. v. B.S.V., 68 Mass. App. Ct. 12 (2006).

[4] Id., at 20.

[5] Jankovich v. Jankovich, 88 Mass. App. Ct. 1111 (2015).

[6] Id., at 3.

Parents Have Standing to Attend Post-Termination Hearing on Visitation Rights

Will a biological parent whose parental rights have been terminated have standing to participate in a post-termination hearing regarding visitation rights?

Yes, according to a recent decision by the Massachusetts Appeals Court. In Adoption of Zak, the biological mother and father of three children (two, in the case of the father) were stripped of their parental rights after the trial judge found that the children had been profoundly affected by domestic violence. [1]During the same trial, the judge also decided a matter of post-termination visitation—in other words, whether the parents would be entitled to visit with the children even thought their parental rights had been terminated. On appeal, the Court affirmed termination of parental rights, but the matter regarding post-termination visits was remanded back to the Juvenile Court.

So, a new hearing was held in the trial court regarding the post-termination visitation issue. The problem? The parents were not notified of this new hearing, and did not participate. The parents appealed, claiming they had the right to be present. The Appeals Court agreed.

The Court quoted another case to say that “[w]here orders involving termination, placement, and visitation are issued as part of the same adjudication of termination proceeding, a parent has standing to press on appeal any challenge that he or she has not expressly waived to that adjudication[.]” [2]Although the hearing in question here was on remand, and not on appeal, the same applied, as the trial judge’s consideration of evidence at the remand hearing served as a continuation of the proceeding to which the parents were originally parties. Therefore, the Appeals Court held, the parents had standing to be present at the hearing.

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

[1] Adoption of Zak, No. 16-P-393 (October 7, 2016-January 9, 2017).

[2] Id., quoting Adoption of Douglas, 473 Mass. 1024, at 1025 (2016).

Co-Parenting During the Holidays

What’s better than being with your kids during the holiday season? Likely, you answered “nothing.” However, if you’re co-parenting with a former partner, likely you also know that the holidays can be one of the most stressful time for sharing parenting time and responsibilities.

To make co-parenting during the holidays a little bit easier, Turco Legal put together the following tips:

  1. Communicate, plan ahead, and stay organized. Do your best to collaborate with your ex on parenting time. Start planning early. Once plans are made, put them in writing, including dates and times, locations, the roles and responsibilities of each parent during holiday traditions, and any special arrangements that might be needed. Use your decree as a starting place regarding parenting time during the holidays, and refer to it if there is any confusion.
  2. Don’t feed the flames. Collaboration is key, but sometimes it just doesn’t happen. If conflicts arise between you and your ex, do your part to keep the kids out of them. If your ex starts a fight, don’t take the bait.
  3. Watch for any trigger points and avoid them as much as possible. If you know that texts between you and your ex are likely to turn into war, avoid them and communicate another way. If you know that alcohol brings out the worst in your thinking about your ex, avoid it while the kids are around.
  4. Stay flexible. Leniency and cooperation can go a long way during the holidays, where schedules are already uprooted and there doesn’t seem to be enough time for anyone to accomplish all plans. If one parent’s family is visiting on a particular day, the other should be willing to trade days so that your child may see extended family. If one parent has planned a special holiday night out, the other should be flexible with pick-up times to allow the children to attend.
  5. Create a new tradition with your children. Whether it’s attending a holiday performance or volunteering together, creating a special new tradition can enhance the experiences of your children and your family.
  6. Don’t create competition. The holidays are not about besting your ex. If kids get more presents at one house than the other, or if one holiday event or party seems more fun than another, don’t take things personally, don’t compare, and don’t gloat.
  7. Take time to relax with your kids. Busy holidays affect kids as well as parents, and it’s important to ensure the kids get some time to decompress. Start a relaxing new tradition, whether it’s watching a favorite holiday movie with hot cocoa or reading an uplifting story together.
  8. Take time for yourself, too. Take advantage of time alone to practice self-care—run a bath, enjoy a special meal, or sleep in. Taking care of yourself will allow you to take care of your children much more effectively.
  9. Let kids connect with their “village.” The holidays are about spending time with family, friends, and loved ones. Besides you and your ex, your children likely have many others who would like to spend time with them during the holidays. Allow that to happen, whether it’s your side of the family or not.
  10. Approach the holidays with a positive mindset. Remember that ultimately, co-parenting during the holidays must be all about the kids. Always keep in mind what is in the best interests of your children.

For more helpful tips about co-parenting during the holidays, view our recent video where Damian Turco discussed with Christina Curro “Making it through the Holidays While Avoiding Family Conflict”.

 
If you have any questions about co-parenting during the holidays, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

Happy Holidays from Turco Legal!

Can my spouse “take the children away” from me, as he or she is threatening?

Many divorcing couples have been there…arguments get heated, regrettable words are spoken, and one (or both) of the spouses threatens the unthinkable: to “take the kids away” from the other parent.

Legal and physical custody of children is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”

During the divorce proceedings, it is recognized in Massachusetts that both parents have a right to temporary legal custody. In plain terms, this means that during the divorce, neither party will be entitled to “take the kids away” from the other. (Some important exceptions to note here: the court may order sole temporary custody in the event of abuse, neglect, or emergency conditions.)
In determining custody matters for a final court order on the merits of the case, however, there is no presumption for either shared or sole custody by the courts. If custody is contested by one or both parents, the parties will need to submit to the court their plans regarding the following:

  • the child’s education;
  • the child’s health care;
  • procedures for resolving disputes between the parties with respect to child-raising decisions and duties;
  • and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations.

The court will review the custody implementation plans submitted by the parties. The court may accept the plans, modify the plans and issue a joint custody plan, or order a plan for sole custody to one of the parents.

Joint legal custody is not necessarily presumed to be the best choice, either, as the Massachusetts Supreme Judicial Court has noted in the case of Yannas v. Frondistou-Yannas.[2] In that case, a father appealed a judgment which granted primary physical custody of his minor children to the mother, granted joint legal custody to both parents, and authorized the mother to take the children to Greece to live there. The father argued that Massachusetts supports a presumption of joint legal custody, and that joint custody is also required by the U.S. Constitution. The Court disagreed. “There is no apparent reason to believe that joint physical custody is presumptively preferable in all child custody disputes. The matter of physical custody is appropriately left to the judge for determination unfettered by any presumption in favor of joint physical custody. There is also no reason to conclude, as the husband suggests, that joint physical custody is required by constitutional principles of right-to-privacy or due process of law or that a “clear and convincing” standard of proof should be imposed on anyone seeking custody other than joint physical custody.”

It is important to note that, contrary to popular belief, there is no “preferred parent” by the Massachusetts Probate and Family Courts. Absent any misconduct, the rights of the parents are held equal by the courts. A parent is not automatically preferred to receive custody of the children because of his or her gender; in fact, the Massachusetts courts have long done away with the common law presumption that a father was entitled to the care and custody of his children in the event of a divorce. (Under English common law, that was the case.  Massachusetts, however, has rebutted this idea as early as 1890. Likewise, mothers are not presumed to become the primary caregiver of a child simply by way of being mothers.

So, if neither sole custody nor shared custody is preferred, then how does the court decide? In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. Some examples:

  • Has one parent acted as the primary caregiver to the child in the past?
  • What are the needs of the child, and in what ways will each parent be able to care for the child and meet those needs?
  • Is there a history of abuse by either parent?
  • Is there a history of alcohol or substance abuse by either parent?
  • Has either party ever deserted the child?
  • Do the parents have a history of being able and willing to cooperate in matters related to child-rearing?

If your spouse is threatening to “take away your children,” or you are facing custody matters, it is imperative that you discuss the unique facts involved in your family’s matter with a knowledgeable family law attorney. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Mass. Gen. Laws ch. 208 s. 31

[2] Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985)

[3] See King v. DeManneville, 5 East. 221, 102 Eng.Rep. 1054 (Kings Bench, 1804).

[4] Haskell v. Haskell, 152 Mass. 16, 24 N.E. 859 (1890).

Mental Health Issues and Custody: Does Being on Medication Hurt My Chances of Getting Custody of My Kids?

Generally, the court will consider matters of custody by examining what is in the best interests of the child. The best interests of the child standard includes many factors. The court considers the presence of all relevant factors in its custody orders, and each factor, including those having to do with mental health issues, may be weighed differently from the others, depending on the individual facts of the case.

Three of the factors which are particularly relevant to the issue of medication are the factor of parental fitness, the factor of ability and willingness of the parent to care for the child, and the factor of health of the parent. Let’s examine each of these three factors below:

1. Parental Fitness and Medication

Unfitness of one parent might clearly disqualify that parent from obtaining custody of the children.

In one Massachusetts case, custody was awarded to the mother after she proved that she was dealing with her depression and emotional issues successfully, despite a short period of hospitalization. The father appealed, but the Appeals Court agreed with the trial judge, noting: “In our opinion, on the evidence before her, the judge could permissibly conclude; (a) that Marie is dealing successfully with her emotional problems; (b) that of the two parents “she despite her problems can offer the children more room for growth”; (c) that Gino has an “obsession with keeping control over the life of his wife and children” which causes much of her stress; and (d) that the welfare of the children will best be served by granting custody to their mother, with liberal and specific rights of visitation for the father.” [1]

Being on medication for mental health issues, then, might actually be a positive factor for the parent seeking custody, as long as the parent can show that the medication is helping the parent overcome mental health issues successfully, and that it does not affect his or her fitness as a parent.

There is a line of cases which does not directly deal with custody disputes but is relevant to this discussion: cases that deal with the termination of parental rights and the care and protection of children. In one recent appellate case, the mother was able to show that she was fit to care for her child, age nine, despite suffering from severe past trauma, ADHD, past substance abuse, and an executive function disorder. In that case, the child also suffered from several mental and emotional issues and was on medication for them. The Appeals Court reversed the trial judge’s order for care and protection of the child.[2]

By contrast, two other cases in which the mental or emotional health of the parent was contested found that the parent in each case was unable to care for her child: in one, the mother neglected to attend necessary treatment;[3] in the other, the mother refused to complete ordered substance abuse programs and had a history of visiting multiple doctors in order to obtain additional prescription drugs. [4]

2. Ability and Willingness of the Parent to Care for the Child and Medication

When the Probate and Family Court examines the ability and willingness of the parent to care for the child, it uses a balancing test—by accepted premise, the rights of each parent are considered to be equal, so the Court will balance and compare the relative abilities and willingness of each parent to care for the child. Lack of interest in the child or motivation to parent, as well as a history of not carrying out parenting tasks, will be relevant to the Court’s comparison.

Note that there are some additional factors which might be at play here and relate to caring for the child: for example, the court might look at the suitability of the parent’s residence, the lifestyle of the parent, and any abuse, substance abuse, or violence. If emotional or mental health issues have interfered with the parent’s ability to provide a safe and stable residence, for example, or perhaps escalated into abuse or violence in the past, then the Court may consider those factors. Or, if emotional or mental health issues have caused serious substance abuse by the parent, the Court again will consider that factor. However, in and of itself, taking lawfully prescribed medication for mental health issues will not disqualify a parent from being awarded custody.

3. Health of the Parent and Medication

Obviously, the physical, mental, and emotional health of each parent is a significant factor in making decisions regarding custody. In several cases, the Court considered the mental or emotional instability of a parent as a decisive factor in awarding custody to the other side. [5]

However, neither physical nor mental illness of the parent will automatically disqualify the parent from custody—rather, it is relevant ONLY when those issues adversely affect the child, or where the parent cannot adequately carry out his or her parenting responsibilities.

[1] Angelone v. Angelone, 9 Mass. App. Ct. 728 (1980).

[2] In re Laurent, 87 Mass. App. Ct. 1 (2015).

[3] Adoption of Jacques, 82 Mass.App.Ct. 601 (2012).

[4] In re Adoption of Sunil, 79 Mass.App.Ct. 1112 (2011).

[5] See Fort v. Fort, 12 Mass. App. Ct. 411 (1981); Sloane v. Sloane, 349 Mass. 318 (1965); and In re Stephen, 401 Mass. 144 (1987).

2016 Co-Parent Halloween Survival Guide

Co-parenting through the holidays can be easy or frustrating and Halloween is no exception. The reality is, some parents can’t put their children’s need before their own interest in making the other parent’s life difficult.  While that’s unfortunate, the good news is that by following these simple steps, you’ll greatly reduce or eliminate any such effort of the other parent.

1.   Don’t Go Looking for Conflict.  While it takes two parents to cooperate, it only takes one to cause problems.  Don’t be that parent unless you want problems yourself.  It’s true you can’t control the behavior of the other parent, but you can control your own.  Halloween is about the children.  It’s all about the kids enjoying a once-a-year experience in which they can pretend to be someone or something else, while reaping in loads of candy.  Don’t sour their experience with your own selfishness.  Keep your own behavior in check and don’t cause unnecessary conflict.

2.   Read Your Parenting Plan.  Every separation agreement involving minor children or custody agreement when the parents weren’t married, includes some sort of parenting plan, which hopefully includes a parenting schedule.  The agreement should be clear about when you have the kids and when the other parent has the kids.  Even better – many agreements have provisions regarding holidays, sometimes including Halloween.  So, if you anticipate conflict around Halloween, you should read and understand the agreement before you encounter any trouble.  If the agreement is vague or requires that you work things out, I suggest you do so diplomatically and well in advance, only after understanding what is required of the agreement and current court order.

3.    Don’t Involve the Kids Until the Parents Work Out the Specifics.  A recurring fact pattern we see involving the holidays is that one parent will not only fail to review the agreement, but he or she will enter into elaborate planning discussions with the children about what to do during the holiday.  For instance, a parent who does not have the children for Halloween this year may start the discussion about going trick-or-treating with that parent’s friends and their kids. If that plan is of interest to the children, they’ll get excited and then disappointed when they learn that parent doesn’t have them for the holiday.  The better practice is to finalize and/or confirm planning with the other parent well in advance so the children’s expectations aren’t messed with.

4.   Give the Other Parent Time with Kids if they Want It.  Sometimes it’s important to both parents to spend meaningful time with the kids on Halloween.  Perhaps there has been some sort of family tradition around the holiday.  While such an event is best set forth in the separation agreement so as to avoid conflict later, if that step was skipped, do the right thing and cooperate with your co-parent so the kids don’t lose out.

5.   Make Halloween (and every holiday) Fun.  It’s your turn with the kids on Halloween and it’s your time to shine . . . or dress up like Frankenstein’s monster.  Whatever you do, make it fun for the kids.  They are only children once and these are the opportunities to create lifelong memories.  Make their holiday special and contribute to a feeling of love and appreciation in all aspects of their lives.