Stages of Development and the Custody Order

How do the stages of child development impact the custody order?

Whether a child is an infant, an eight-year-old, or a teenager, the court will establish custody orders with the “best interest of the [dependent] child” as the priority and focus. [1]This standard, known as “best interests of the child” standard, is established by courts to make decisions for the child’s betterment, from the child’s perspective. Id.

In Massachusetts, the rights of the parents to the custody of their minor children are generally equal.[2] 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 his or her physical, mental, moral, or emotional health. Id. If custody of a child is contested, the parties should submit a custody implementation plan setting forth the details of their shared custody including, but not limited to, the child’s education, the child’s health care, the parental procedure to resolve disputes between the parties, the parties’ visitation periods, and more. Id. The court may accept the plan established by the parties, modify it, or reject it completely.

Although it is possible that one parent may “offer some extraordinary advantage to the child that makes [a change in the child’s living arrangement] worth the risk,” Massachusetts courts have held that “if the child has been living with one parent for some time, the child’s needs are being adequately met under that parent’s care, and that parent is capable of continuing to care for the child, it is not in the child’s best interests to disrupt that successful arrangement.”[3] If, however, a court determines that it is in the best interest of the child to re-arrange the child’s legal and physical custody, a judge may do so.

As a result, the stages of a child’s development are often varied and complex. No two children are alike, and judges will look to the facts of each case to determine the best interest of the child, including the theoretical and actual milestones of a child’s development and how each parent could impact that child’s growth, happiness, development, and welfare.

If you have any questions about custody 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] Mass. Gen. Laws. ch. 208 § 28

[2] Mass. Gen. Laws. ch. 208 § 31

[3] In re Custody of Kali, 439 Mass. 834, 844 (2003)

What is the Role of a Parenting Coordinator?

When divorced parents in Massachusetts have issues related to decisions involving their children, the parents can employ the use of a parenting coordinator.[1] A parenting coordinator is a neutral court-appointed party who helps divorced parents to resolve disagreements about their children outside of the court process. This solution allows parents to avoid having to attend several court appearances. A parenting coordinator may be appointed to divorce cases.

A parenting coordinator may be used in any action in which the custody or parenting of a child or children is or was at issue. The coordinator may be used if the parties agree to it. If the parties do not agree to the use of a parenting coordinator, the court may appoint one. The court may appoint one if doing so is in the best interests of the child or children and the parties have either failed to implement a parenting plan or the parent conflict is at such a level as to be detrimental to the child or children involved in the parenting plan.

The role of a parenting coordinator is quite expansive. Depending upon the need of the parents and children and the court’s orders, a parenting coordinator can serve the following roles: decision-maker, initiator of communication, facilitator of court orders, problem solver, and manager in charge of structuring parental roles.

The specific permitted duties of all parenting coordinators are as follows[2]:

  • Assist the parties to resolve disputes and reach agreements about the implementation and compliance with the court’s order regarding child or child care, including, but not limited to, the following possible issues:
    • changes or clarifications of the parenting plan;
    •  exchanges of the child or children and means of transportation;
    • education or daycare including school choice, tutoring, summer school, before and after school care, participation in testing, programs, or other educational decisions;
    • enrichment and extracurricular activities including camps and jobs;
    • the child or children’s travel and passport arrangements;
    • clothing, equipment, and personal possessions of the child or children;
    • means of communication by a party with the child or children when they are not in that party’s care;
    • role of and contact with significant others and extended families;
    • psychotherapy or other mental health care including substance abuse or mental health assessment or counseling for the child or children;
    • psychology testing or other assessments of the children; and
    • religious observances and education.
  • Educate the parties about making and implementing decisions that are in the best interests of the child or children;
  •  Assist the parties in developing guidelines for appropriate communication between them;
  • Suggest resources to assist the parties; and
  • Assist the parties in identifying and addressing patterns of behavior and in developing parenting strategies to manage and reduce opportunities for conflict in order to reduce the impact of any conflict upon their child or children.

Parenting coordinators must inform the parties that any agreement between the parties is not enforceable if the agreement changes the existing order or judgment without approval by the court. Parenting coordinators may not: (a) communicate with the court or any court personnel regarding the substance of the action; (b) testify in the action as an expert witness; (c) facilitate an agreement between the parties that would change legal custody or physical custody or parenting plan that would change the child support; (d) offer legal advice, representation, therapy, or counseling; (e) delegate any portion of the parenting coordination process to anyone; and (f) make binding decisions for the parties without the parties’ express written agreement that is incorporated into an order or judgment.

Parenting coordinators may produce documents or testify in the action as a fact witness. They may file a motion or complaint to request an immediate hearing if the party or child is in imminent physical or emotional danger.

Issues regarding separation, divorce, child support, children, and parenting coordinators are often quite complex. If you have any questions about these issues, 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] Probate and Family Court Standing Order 1-17: Parenting Coordination; SJC Rule 1:18

[2] Id.

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).