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 is a Parenting Plan?

Benjamin and Sarah are divorcing. They have four children between the ages of 6 and 17. Both parties contest the issue of custody of the children. And, both parties want to establish a plan to share legal and physical custody. The parties want their parenting plan to make sense, so that it reflects the respective ages and developmental stages of their children.

In Massachusetts, when the issue of custody comes up in court and either party wants shared legal or physical custody, either party may file a custody implementation plan with the court. This custody plan should include the details of the shared custody plan, including 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 the parent, including holidays and vacations.

If each party, individually or jointly, submits a parenting plan to the court, the court must consider the custody implantation plan(s). The court can use or modify the plan(s) that the parties submit. The court can also reject the plan and issue a sole legal and physical custody award to either parent.

 

What Makes a Good Parenting Plan?

Massachusetts offers model parenting plans for parties who seek guidance in crafting their plans. The model parenting plan–offered by a task force of judges, probation officers, and mental health professionals–is not mandatory. But, the model parenting plan is a structured and guided approach for allotting the right amount of time that a child is to spend with each parent based on the child’s best interests.

The model parenting plan lists several factors to include when crafting a model plan. These factors include:

(1) level of tension of conflict between the parents;

(2) parenting skills already in place;

(3) child’s physical and emotional health;

(4) child’s temperament and adaptability to change;

(5) child’s developmental age and abilities;

(6) child’s daily schedule;

(7) availability of each parent;

(8) location of both parents;

(9) parent’s ability and willingness to learn basic care giving skills;

(10) sibling groups; and,

(11) close care-taking relationships.

Parents Benjamin and Sarah should evaluate their children’s needs and developmental levels to draft a plan. Then, a court would review their plans and either choose a plan, modify a plan, or establish a new plan that is in the best interests of their children.

Family and child law matters are nuanced and fact-based. Your family law matter is as unique as your family. 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.

Enforcement of Child Support Orders

As part of James and Jeri’s divorce, James is ordered to pay $153 per week in child support. For the past two months, James has not paid any support to Jeri. What could happen in this case?

There can be several consequences for parents when they do not pay their child support obligations. If a court orders a parent to pay child support, the parent must make those payments. If the payor parent (the one ordered to pay) fails to make the payments, the parent seeking the payment must file a complaint to enforce the order. This complaint is known as a contempt complaint.

Once a contempt complaint is filed, the payor parent will receive a summons with a hearing date. At the hearing, a judge will consider evidence. This evidence can include any changes in circumstances and the parties’ financial statements. If the judge determines that the payor parent is in contempt for not making child support payments, he or she will decide on the amount that is past due and the date by which the past payments must be paid.

Depending on the court order, the judge may order the payor parent’s wages to be garnished through the Department of Revenue. Then, the court will have clear records of how much that parent owes. In some cases, the order may indicate that the payor parent should pay the other parent directly. This could make it more difficult to figure out the accurate amount of past due child support.

 

What Else Can the Judge Do?

 

If the judge determines that the payor parent has not made child support payments, this ultimately means the parent is in contempt of court for violating the court order. The judge may enforce the order and will apply an appropriate punishment depending on the situation. This may result in a fine, suspension of the parent’s driver’s license, or even jail time. Additionally, the parent may be subject to giving up other rights. For example, the parent may not be able to get a passport. Or, the parent may be barred from being issued a variety of state-issued licenses. Ultimately, the judge will require the payor parent to pay the custodial parent the amount owed in past child support.

Jail time may seem like a drastic punishment for not paying child support. Yet, the courts see it as an appropriate motivator. The payor parent will be released from jail once she or he pays. When dealing with past due child support payments, the court is ultimately most concerned with the well-being of the child. So, the court takes the enforcement of child support orders very seriously.

If you have any family law questions, 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.

 

 

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.