by Damian Turco | Apr 11, 2018 | Child Support, Child Support Articles, Custody, Divorce, Divorce Articles, Health, Uncategorized
What Massachusetts laws govern health insurance during divorce and custody cases?
Divorce
When seeking a divorce and/or dealing with custody of children, a question that often concerns individuals is the issue of health insurance coverage. This is a great question to bring up to your family law attorney, as every situation pertaining to health insurance is different. When seeking the advice of a family law attorney, it is important to bring all information regarding your health insurance with you. When dealing with a divorce and all its complications, health insurance can be low on the list of priorities, but it can become a point of contention, especially when children are involved.
Generally, during a marriage one spouse who is the holder of a health insurance policy will provide coverage to the other spouse and to the children in the family. Therefore, upon dissolution of the marriage the question remains: who will be responsible for providing the health insurance to the uninsured spouse and if necessary, to the children? To put this answer simply, in Massachusetts, the Judges of the Probate and Family Court, in conjunction with the state insurance laws, determine who is responsible for health insurance coverage.
As with temporary support, at the commencement of divorce proceedings, a judge will address the health insurance issue and enter an order preventing either party from terminating or making changes to their existing coverage. Therefore, during the preliminary stages of the divorce, the insured spouse will be obligated to continue providing insurance coverage to the other. As the divorce proceedings evolve, the judge will decide based on the insurance available to each spouse how coverage will continue. Ultimately the judge decides if the insured spouse is no longer obligated to provided insurance, if they must continue providing coverage, or whether they will be required to reimburse the other spouse for finding independent insurance.
Under Massachusetts law, a spouse who is a member of a group insurance policy, upon divorce will be obligated to provide insurance benefits to the ex-spouse under his or her plan, unless divorce judgment provides otherwise. Coverage under a group plan will continue until remarriage of either the member spouse or until a specific time stated in the divorce judgement.
In addition to determining who will be responsible for providing health insurance upon the divorce, there are other factors to be considered, such as deductible and premium payments and who will bear the burden of paying for medical expenses that insurance does not cover. At the time a divorce is finalized, all of these issues will be addressed and will be a part of the divorce agreement.
Child Custody
Health care coverage is also a concern is when dealing with child custody issues and determining which parent will be responsible for providing the child or children with health insurance. Similarly to spousal health insurance, the question regarding health insurance coverage for a child is governed by Massachusetts family law in conjunction with the state insurance laws. It must also be noted that while a judge must make these decisions in conformance with the laws, the judge will also consider several factors in determining which parent should provide the health insurance for the child. For example:
- Which parent currently provides health insurance for the child/children?
- Is the current coverage available at a reasonable cost?
- Is providing health insurance going to cause a parent “undue hardship?”
Massachusetts law affords parents several avenues for providing health coverage for their child(ren). These options include but are not limited to providing coverage through their employer, choosing to get coverage through MassHealth, or purchasing health insurance independently. Since Massachusetts law considers health care coverage a component of the child custody, it is mandatory that a child’s health care coverage be incorporated into the child support order. Therefore, if neither parent can provide health care coverage for the child, the courts may allow the parents to come to a written agreement that the child will be covered in an alternative way, such as under the grandparent’s insurance.
While navigating the child custody waters, it’s important to discuss with your family law attorney your concerns with providing health care coverage for your child. Generally, absent an agreement to the contrary, a judge can only order a parent who pays child support to provide health care coverage. However, a judge must use discretion and see if the insurance available to the parent can be obtained at a reasonable cost, and whether providing it would cause the parent an “undue hardship.” The Massachusetts child support guidelines provide that if a parent can obtain health insurance from their employer, it will be available at a reasonable cost. For more information about your child’s health care coverage, you may consult the Massachusetts Child Support Guidelines, section II.h.
If the coverage is not available at a reasonable cost or it would cause the parent to experience an “undue hardship,” the judge may not order the parent to provide health care coverage for the child. An undue hardship may arise when providing a child with health care coverage would prevent a parent from making child support payments, or if a child experiences extraordinary health care expenses and the cost would greatly exceed the coverage the parent is able to provide.
Ultimately, health insurance and health care coverage will likely come up in divorce and child custody cases. If you are experiencing family turmoil and are concerned about how it will affect you or your child’s health care coverage it is important to contact a family law attorney to discuss your options. If you need more information about 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.
by Damian Turco | Mar 12, 2018 | 209A Protective Orders Articles, Abuse, Caregivers, Child Support, Child Support Articles, Co-Parenting, Custody, GAL, Guardian Ad Litem, Guardianship, Physical Custody and Visitation Articles
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.
by Damian Turco | Feb 6, 2018 | Child Support, Child Support Articles, Custody, Physical Custody and Visitation Articles, Uncategorized
Approximately 800,000 children annually are reported missing, according to U.S. Department of Justice statistics—a staggering 2,000 minors daily on average. Family members account for 203,000, more than a quarter, of these child abductions, the National Center for Missing and Exploited Children (“NCMEC”) claims. In 78 percent of child kidnappings, the offender was the noncustodial parent, according to the National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children (“NISMART”).
Among the reasons cited by parents for violating the custody or visitation rights of their mates by abducting their children are to punish the non-offending parent or to compel reconciliation with the estranged parent. Fear of losing custody or visitation rights, and, in rare instances, shielding the minor from an alleged neglectful or physically or sexually abusive parent, are other reasons underlying parental kidnapping.
Under Massachusetts law, a minor’s relative who takes a child from his or her custodian without lawful authority and intends to hold the youth “permanently or for a protracted period,” is subject to a maximum one year in prison, a thousand-dollar fine, or both. Unlawfully removing the child from the Commonwealth and exposing the minor to danger is punishable by up to a $5,000 fine and a maximum five-year prison term.
Often, an accused parental kidnapper also faces a charge of violating a restraining order. Violation of such an order could result in a maximum fine of $5,000 and up to two-and-a-half years in prison.
Criminal liability against a parent as outlined above pre-supposes an existing court-issued custody order concerning the parents’ children. In a 1989 case, a woman took her five- and three-year-old sons from their Massachusetts home and relocated to Puerto Rico ten days before her estranged husband obtained a temporary custody order, unbeknownst to her.
The mother was arrested for parental kidnapping. The Supreme Judicial Court acknowledged the presumption under Massachusetts law that both parents have equal custodial rights of their children. The Court concluded that a parent who takes his or her children from the other parent before any court proceeding has generated a custody order is not acting “without lawful authority” as defined by the Commonwealth’s statute, and cannot be convicted of parental kidnapping.
At the national level, the Federal Parental Kidnapping Prevention Act requires every state’s appropriate authorities to enforce and not modify (with certain exceptions) any child custody determination made by another state’s court. This full faith and credit provision means that if another state having jurisdiction over a child custody question has pending custody proceedings outside the Commonwealth, a Massachusetts judge, for example, cannot issue a custody order in a non-emergency care and protection hearing involving the same minor without running afoul of the federal Act. The federal statute prevents two states from concurrently assuming jurisdiction over the same custody matter. It considers the resident state of the child or either parent to be the proper forum to resolve the dispute.
Unfortunately, sometimes—especially in particularly contentious divorce proceedings—family lawyers confront false kidnapping claims. Sometimes, these are brought by a vengeful custodial parent against a defendant parent during the latter’s designated visitation period when a child is returned late to the custodial parent. In such instances, experienced divorce counsel can refute spurious accusations through proof that unforeseen circumstances, such as traffic congestion, a delayed or cancelled flight or unexpected injury or illness caused the visitation to exceed the allotted time.
In other cases, noncustodial parents, fearful that their children are targets of physical or mental abuse by the custodial parent, may not return the child after a scheduled visit. When such unilateral action is taken, experienced divorce attorneys will seek relief from the probate court by arguing that the noncustodial parent was acting in the best interest of the child by protecting the youth from an unsafe home environment.
Under Massachusetts law, either spouse in a pending divorce action may petition the Probate and Family Court to issue an order to prohibit the other spouse from imposing any restraint on the personal liberty of the petitioner or his or her minor children during the pendency of the divorce proceedings. Likewise, by statute, a minor over whom a Massachusetts probate court has jurisdiction, either because the child was born, or has resided for at least five years, in the Commonwealth, cannot be removed from Massachusetts without the child’s consent, if he or she is of “suitable age” to give it. If the child is too young to consent, the child cannot be removed without the approval of both parents, unless the Court, upon cause shown, otherwise orders.
If you have any questions about child custody or support or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online.
by Damian Turco | Dec 11, 2017 | Custody, Legal Custody Articles, Physical Custody and Visitation Articles
Kelly and Ken are divorced and share custody of their three minor children. Kelly maintains a modest, but clean and safe home in a small town, while Ken lives in a one-bedroom apartment. Ken’s building is pretty run-down, and it is located in an area of a large city known for its high crime rates. Kelly is concerned that Ken cannot provide a suitable residence to the parties’ children when they visit with him. First, she is concerned about the children’s safety in Ken’s neighborhood and building; second, she is concerned that the lack of an extra bedroom means the children’s sleeping arrangements are less than ideal. Kelly wishes to petition the court for sole physical custody of the children.
Custody Factors
When addressing issues of custody, the Probate and Family Court judge will look at various factors to determine which parent would be most suitable to have primary physical or legal custody of a child. Making these decisions based on the “best interests of the child standard,” the factors considered are the fitness of the parent, children’s preference, and home environment, among others. In these cases, even if your ex-spouse says your home is unfit, it is ultimately up to a judge to determine what is best for the child.
Suitable Residence Factor
When considering the suitable residence factor in determining child custody, the court may consider whether the living conditions would affect a child’s physical, mental and emotional health. For example, in Ventrice v. Ventrice, the Court reversed a custody award because the judge did not consider the children’s living situation. In that case, the ex-wife’s negligent attitude towards her home environment and safety forced the judge to reverse the initial award. The Court found that the ex-wife’s home was “dirty and unkempt” and she failed to barricade an 80 foot cliff near her home, all things that were not in the best interest of her children.
Additionally, the Massachusetts courts have held that a residence where a child would be taken care of by many different adults would not be in the best interest of the child. In Hunter v. Rose, the Court awarded custody to the parent with a stable job and flexible work hours, rather than to parent who had lived in four different residences in less than one year, with no nearby relatives and five different care providers for daughter. The court believed that this living arrangement would put the child in unfamiliar environment with new caregivers and medical providers while the parent was unavailable, thereby putting in question whether it was a suitable residence. Also, the Court has determined that if the child were to be placed in a stable home environment or in a clean home, this would have a positive effect on a parent’s hopes for physical custody.
On the other side of the coin, the Courts have also held that simply giving a child a high standard of living does not mean custody should be awarded to the parent whose lifestyle allows for a higher standard. For example, in one case, Bak v. Bak, the Court held that stating that material advantage and successful child-rearing do not necessarily go hand in hand. To base custody determination on material advantage would likely punish the less affluent party, the Court stated. In other words, even if your home is nicer than your spouse’s, this in and of itself is not a reason to award custody for you.
However, it is important that the income and resources of a parent are sufficient to provide a proper standard of living and suitable residence for the child. In the hypothetical scenario above, the Court will consider whether it is in the best interests of the children to stay with Ken, in light of the lack of space, safety considerations, and other potential issues with the standard of living that Ken may offer. Of course, the living arrangements will be only one of many different factors that the Court will consider in determining which party should have custody, ultimately basing its decision on what is in the best interests of the child.
If you need more information about issues of child custody or about 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 our experienced family law attorneys will respond to your phone call or submission promptly.
by Damian Turco | Nov 22, 2017 | 209A Protective Orders Articles, Abuse, Co-Parenting, Custody, Harassment, Legal Custody Articles, Temporary Orders, Visitation Rights
Matt and Mary are going through a 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, and you may schedule a free consultation with our firm. 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.
by Damian Turco | Nov 13, 2017 | Adoption, Adoption Articles, Custody
A judge may draw a negative inference from a parent’s absence and find that the parent is unfit, terminating parental rights, according to a recent decision of the Massachusetts Appeals Court.
In Adoption of Talik, the Court terminated parental rights of a mother failed to attend a trial regarding reunification with her child. Adoption of Talik, 92 Mass. App. Ct. 367 (2017). The child, born in 2013, tested positive for narcotics at birth and was placed in the custody of the Department of Children and Families, then shortly after discharged to the care of his foster parents.
DCF drafted a service plan for the mother, with the goal of reunifying the mother and the child. Under that plan, the mother was to participate in substance abuse treatment, provide toxicology screens, and attend visits with her child, among other tasks. Due to a lack of attendance, the mother was discharged from the program.
Soon thereafter, DCF’s goal changed to that of adoption. A relative of the child who resided in California expressed interest in having the child placed with her, and California Child Protective Services conducted a placement study. The study concluded that the relative’s home did not meet the proper standards for placement as applied in Massachusetts, and the child remained with his foster parents. The mother sued, claiming that DCF abused its discretion, and seeking to have the child placed in the care of the relative.
During the trial, the mother’s attorney was present, but the mother was absent despite having had notice of the proceedings. The judge issued a decision terminating the mother’s parental rights and approving DCF’s plan to have the child adopted by his foster parents. On appeal, the mother argued an abuse of discretion by the trial judge.
The Appeals Court affirmed the trial judge’s decision. “[A]n adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt,” the Court stated. “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child’s best interests.” Id., at 371-372.
The Court further explained that the trial judge has discretion to determine whether to draw such an inference, considering whether such inference is fair and reasonable based on all applicable circumstances. In the present case, the Court noted, the judge did not abuse his discretion, given the mother’s history of substance abuse, long history of domestic violence, failure to continue treatment, and noncompliance with the service plan.
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.
