Emancipation of Children and ROTC: New Massachusetts Case Law

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.

LGBTQ Issues in Family Law

Massachusetts generally recognizes marriages and divorces between LGBTQ-identified persons, but the issues that may occur for LGBTQ-identified people are as unique and nuanced as people themselves.

Note that there is not a separate or different process for separation and divorce for same-sex couples. In the case of all marriages, whether same-sex or heterosexual, the process for separation and divorce is the same in Massachusetts. The assignment of marital property and alimony matters are decided using the same standard whether it’s a hetero or same-sex marriage, through a process called equitable distribution. Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage as well, by weighing what is in the best interests of the child.

Still, specific family law issues may arise for LGBTQ-identified persons. A skilled Massachusetts family law lawyer can help you to navigate the complexity of these issues. As some examples, take the following fact patterns:

  1. Henry and Sue are a cisgender and straight couple. This means that Henry and Sue identify with their born and identified sex. After a four-year marriage, Sue decides that she wants to date a woman. Henry wants a divorce. Are there any different considerations that Henry needs to know?
  2. Josh and Ben met in college. After dating for two years, they decided to live together. At the time, they could not get married in Massachusetts but lived together in Massachusetts, had a ceremony with their families to proclaim their commitment to each other, and held themselves out in public as a partnered and committed couple. Eventually, the Commonwealth of Massachusetts recognized equal marriage. Josh and Ben know want to know: are they legally married? If so, when are they considered to have been married? Is their marriage date the date that they had a commitment ceremony? Do they need to have a formal marriage or wedding ceremony? Suppose that they divorce one day in the future—what is the date that a court would use for purposes of alimony?3. Sandra and Daryl have young twins, Sarah and Frank. One day, Sandra, a stay-at-home mom, sees her son Frank in one of Sarah’s outfits. Shocked, but still in support of her child, she begins to take Frank to receive mental help support. Eventually Frank is diagnosed with Gender Dysphoria under the DSM-V. Sandra decides that she wants to support Frank now as Frankie. Sandra wants her child to publically identify as they wish. Eventually, Daryl learns of this and is outraged. Daryl wants to force Sandra to stop “encouraging” their child to be who they are. Does either party have any legal recourse or ways to protect their transgender kid?4. Betty and Joanie identify as a lesbian married couple, married and living in Massachusetts. After 6 years of marriage, Betty travels to California for business. After drinking too much and contrary to her better and usual judgment, Betty has an affair with a bisexual man. Unbeknownst to Betty, she becomes pregnant. She tells Joanie about the incident and, upon learning that she is pregnant, decides to keep the child. The couple decides to keep and raise the child together. They track down the man from California to tell him that they are pregnant and to offer to him the chance to meet the child one day. He is upset and wants full custody. Who has the legal right to custody of the child?5. Jackie and Margaret were married in Massachusetts, but now want to divorce. After they divorce, Jackie decides to return to the in vitro clinic to try to become pregnant with the embryo that both parties created together during the course of the marriage. May Jackie use the embryos? May Jackie use them regardless of whether they contain Jackie’s or Margaret’s specimens?

    While there will likely not be a big different for Henry’s divorce above, there are significant considerations that the other couples must consider. For example, Josh and Ben may not be considered to be legally married, especially if they were not really holding themselves out as married. Daryl may make his arguments against supporting his transgender child, but a Massachusetts judge would look to the best interests for Frankie and likely side with Sandra and Frankie. Betty and Joanie would likely be the legal parents of the child because a child born within a marriage is presumed to be the child of the two people in the marriage. The man with whom Betty had the affair may have a paternity burden to overcome, and would need to show that it is in the best interest of the child for him to have custody. Jackie and Margaret’s arrangement for the embryos would likely take precedent, but a mediator might be able to help the former couple to navigate this issue.

    If you have an issue related to LGBTQ issues, or general family law, you should contact a competent domestic relations lawyer or family law attorney who appreciates the diversity and value of all families. Our experienced professionals may be able to work on behalf of you or your family. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.

The Intersection of Immigration and Family Law

Many natural born citizens in the United States take for granted the ease of navigating the legal system as a United States citizen. This assertion is especially true in comparison to the ease of navigating the legal system for non-naturalized citizens. Many citizens do not understand the significant role that one’s citizenship status plays in the family law context, such as the ability to marry, divorce, obtain custody of children, and obtain financial support from another person. Citizenship carries many benefits within the family law context. There are, however, ways for all people to navigate the legal system to understand family law and the intersection of it with immigration.

The law values the family unit and the protection of children, and family law in particular has the power to affect society and the family unit. Family law also has the potential to encompass other cornerstone issues of law as well, such as family law issues involved with immigration. Given the sensitive nature of this issue–as well as its timeliness–it is important to understand the intersection of family law and immigration law.

Each of the following scenarios includes family law and immigration law issues:

  1. Hovhaness was born in the United States. He met a woman named Agnes who was born in Armenia and arrived to the United States as a teenager. The two had one child together. Years after their son was born, Agnes decides that she wants to return to Armenia to be with her elderly parents. She wants to bring their child. Is she able to? Does Hovhaness have any rights to the custody of the child?
  2. Joshua and Jonathan are a same-sex couple. Only one of them is a citizen of the United States. The couple wants to know whether they can legally marry in the United States. If they marry, would they both be citizens?
  3. A former couple, Bobby and Josie, are divorcing. They are parents to two daughters. Bobby wants to move to another country to live. Is he able to do so? Does he have any child support, alimony, or other obligations?
  4. A mother and her two children are refugees from another country. The husband of the woman and father to the children died. The mother wants to know whether she has any recourse, any way to obtain monetary support from her husband’s estate, located in their native country.
  5. Ximena was born in the United States. Her mother and father immigrated to the United States illegally. With growing concern about her family, Ximena wants to know more about her rights and responsibilities. Is she a citizen? If not, it possible for her to become one? Is there a way to make her parents citizens? Imagine that Ximena also has an older brother, but he was born in Mexico. Is he a citizen?
  6. A young woman lives with a United States citizen, a man. He threatens to report her to authorities if she discloses to anyone about the abuse and violence that he perpetrates against her.
  7. Natalie was born in India. She met her husband in India as well. The couple moved to the United States and became legal citizens. Eventually the couple had two children. One day, Natalie’s husband left for India with their children. Does Natalie have any recourse? Would she be able to get her children back to the United States?
  8. A young man marries a United States citizen woman in order to obtain his permanent residence card.

Many immigrant families need legal support that involves family law and their immigrant status or former immigrant status. These issues affect people of different genders, orientations, religions, nationalities, and backgrounds.

Immigrants may need help in the preparation and filing of petitions for alien relatives, adjustment of status, naturalization, and issues involving deportation or removal. A skilled attorney may be necessary to help an immigrant or the citizen in a familial relationship with an immigrant to find the solution to a problem. Marriage visas, green cards, bonds, DACA assistance, other visas, and other statuses may be tools available to you for your specific family law and immigration issues.

If you have questions or concerns about issues about family law, custody, child support, or domestic relations, you should contact a competent family law lawyer. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to you promptly.

The Lifestyle of the Parents as a Factor in Custody Issues

Consider the following hypotheticals involving parents, children, and the lifestyle of the parents:

  1. A Massachusetts judge must decide whether a parent with a history of drug addiction should have custody over the parent’s two children.
  2. One parent, named Justin, is a collector of vintage and modern guns, knives, and other weapons. The other parent owns no guns in her household.
  3. A mother named Jessica maintains an unhealthy lifestyle, often consuming highly processed foods. She feeds the food to her three children. The medical records of the children reveal that two of the three children are obese. The father of the children wants custody of the children. He argues that he has a balanced relationship with food and exercise and states that he would feed the children nutritious fruit, vegetables, and legumes.
  4. Dennis is a father of two boys and wants custody of his sons. He goes out to nightclubs often and occasionally invites female guests overnight. The mother of the two boys is Diane. She dates on occasion, but never brings a partner around her sons, nor does she return home late in the evening.
  5. Derek enjoys smoking marijuana for recreational purposes. His passion for cannabis consumes much of his time. He argues that he would never smoke in front of his daughters. The mother of the daughters is Josie. She struggles with an addiction to opiate pills, but is in recovery.
  6. Nina and Lindsay are both in their twenties and both appear to be physically in shape. Nina exercises about 4 times per week in the morning when she wakes up at 5:00am. Lindsay never exercises – she appears fit. The former partners each want custody of the parties’ son.
  7. Jack likes to hunt and James does not. Jack hunts animals for sport and has previously brought their son Anton with him to measure the weight of dead animals. Jack takes a photograph of Anton posing with a dead animal hunted by Jack. James is outraged that Anton is exposed to dead animals and that Jack allowed Anton to pose with the dead animal.

When a Massachusetts Probate & Family court judge is tasked with the difficult decision of awarding custody to a parent or parents, the judge may consider several factors. A Massachusetts justice may evaluate the unfitness of a parent. A judge may consider whether either parent has a history of abuse or violence. A judge could also determine the child’s health needs and requirements, the residence of the child’s siblings or other relatives, the child’s preference, each parent’s health, and the lifestyle of the parents, including drug and alcohol addiction.

Even if a child has been living with one parent for some time, the lifestyle of the parents may affect the judge’s decision in awarding custody. Massachusetts judges want to ensure that the needs of children are adequately met under that the care of their parents. Judges want to ensure the best interests of a child. If 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.

In the examples above, a judge may determine that a parent with a history of drug addiction may or may not be an acceptable option for legal or physical custody, given the lifestyle involved with drug addiction and recovery. With regard to the issue of weapons in a home, a judge may determine that if the items affect the lifestyle of a parent then it may be in the best interest of the child to reside with the parent who does not own guns. A judge may determine that children should be with parents who maintain healthy lifestyles. This may extend to food, exercise, and mental fitness. A judge may determine that a nightclub and party lifestyle or a lifestyle heavily involved in the use of any substance, whether legal or otherwise, may not be in the best interest of children. Finally, a judge may determine that a parent who hunts for sport and takes photographs of children is not the type of lifestyle practice that will benefit children in the future, especially because children who witness the abuse of animals become immune to violence and could then harm people in the future. In all of these examples, the lifestyle of the parents will be a factor considered by the court when making custody decisions.

If you have questions or concerns about issues involving family law, 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.

Surrogacy Laws in Massachusetts

Having a child is a monumental moment in many families’ lives. Social media sites such as Pinterest, Instagram or Facebook provide many ideas of how to plan a baby shower or gender reveal, as well as lists of the “Top 10 Newborn Must-Haves.” Couples are inundated with all the information they could ever imagine on these topics—seemingly, the moment they conceive! However, much of this joy is quickly eliminated when a couple discovers that they will have difficulty conceiving and may not even be able to carry a child. This can bring about stress, marital issues, and many questions for doctors.

When a couple discovers that one partner is infertile, or that a woman is unable to conceive or have a healthy pregnancy, a number of options become available. Whether a couple opts for adoption, IVF, or surrogacy, parenthood is still possible for couples in these difficult situations.

The focus of this blog post will be on surrogacy, and specifically, the laws surrounding the process. Hiring a surrogate or gestational carrier is an expensive process. It is also one that can be daunting without the proper planning and legal knowledge. When hiring a surrogate, it is likely that a surrogacy contract will be in place, detailing the legal rights of the surrogate and biological parents. Our experienced family law attorneys suggest that each party specifically identify the rights of both sided prior to the birth in a written agreement. Having a child is an incredibly emotional process, so we encourage our clients to use a surrogacy agency, and to have all the proper legal documentation in place.

In Massachusetts, there are no specific laws that address surrogacy directly. While there are laws that permit artificial insemination (MGL c. 46 s. 4B), and the necessary written consent required for adoption (MGL c. 210 s. 2), there are none that specifically discuss surrogacy, the surrogacy process, or parenting after using a surrogate. However, courts within the Commonwealth of Massachusetts have addressed issues about surrogacy contracts in several cases. As mentioned above, a surrogacy contract outlines the rights of all parties, as well as the pre-birth process.

The seminal case for this issue was R.R. v. M.H. & Another, where the court held that a surrogacy agreement was not enforceable. The court determined that a surrogacy contract was valid if the surrogate mother consented to the surrogacy for at least four days after a child’s birth, and the surrogate did not receive any compensation. Additionally, this case solidified what was necessary for an enforceable surrogacy contract. The court held that the husband of a surrogate mother had to give informed consent prior to insemination. Also, it is necessary that a surrogate mother been a legal adult of 18, with at least one prior successful pregnancy. Each surrogate mother must have a physical and psychological evaluation prior to childbearing, Lastly, it must be confirmed that the “intended mother,” the mother who is deemed the biological parent, has a medical condition or health issue which would prevent them from carrying the child themselves.

Another important case regarding the Commonwealth and surrogacy is Culliton v. Beth Israel Deaconess. That case discussed birth certificates of children born by a surrogate or gestational carrier. The court held that biological parents of a child born by a surrogate or gestational carrier could be on a newborn’s birth certificate. The court further explains that in order for biological parents to appear on the certificate, both parents must be biological, and the surrogate must consent to the birth certificate. Additionally, if any party or hospital where the child was born contests this, the names cannot be on the certificate.

Culliton is very important, because it allows expectant parents to have immediate responsibility of their child, even if the mother was not the carrier throughout the nine months of pregnancy. This ruling allows biological parents to assume parental responsibility as soon as possible, and to avoid any potential legal issues with a surrogate or gestational carrier.

Lastly, even if you are not from Massachusetts, it is important to know that the rulings in these cases create jurisdiction if a child is born in Massachusetts. For example, if your surrogate gives birth in a Massachusetts hospital, Massachusetts law does control.

If you need more information about surrogacy parenting law or family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form, and one of our experienced family law attorneys will respond to your phone call or submission promptly.

Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.