by Damian Turco | Sep 11, 2017 | Custody, Divorce, Divorce Articles, Jurisdiction, Physical Custody and Visitation Articles
Jack and Jen were married in Massachusetts and lived together as husband and wife for four years, during which they had one child, Jonah. Jen has left the marital home on her own. Jack wants to file for divorce, and he also wants custody of Jonah and wants Jen to pay child support. The wrinkle? Jen has just moved to California, and Jack is unsure how to begin the process. Should he file for divorce in Massachusetts, or consider hiring an experienced family law attorney in California? And how might the child support order be affected by the parties’ continental divide? We’ll need to look to the Massachusetts long arm statute to see if Massachusetts has personal jurisdiction over both parties before proceeding.
First, Jack may file the divorce action in Massachusetts based on Jack’s domicile, as he has lived in Massachusetts for more than one year. In addition, the cause of action for the divorce also took place in Massachusetts. In order to serve Jen with process, Jack may turn to two resources: Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure, and the Massachusetts Long Arm Statute.
Rule 4 (e) deals with service of process in divorce cases. Service of process allows the defendant proper notice of the divorce action against him or her. The section of the rule authorizes service of process in the following manner:
When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. [1]
The Massachusetts Long Arm Statute [2] also provides Jack with an important remedy: it describes the circumstances under which a Massachusetts court may exercise jurisdiction over a person who has engaged in certain business or actions in the Commonwealth. Personal jurisdiction, which allows the court to bind a defendant to the court’s orders, is available under the Massachusetts Long Arm Statute in divorce cases. Specifically, the statute applies to anyone who was “maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim[.]”[3]
The same section of the Massachusetts Long Arm Statute will apply to Jack’s claim for child support against Jen. So long as Jack continues to live in Massachusetts, he may petition the Massachusetts Probate and Family Court for child support, and the Court may exercise personal jurisdiction over Jen.
Should Jack later seek a modification of the child support order (or any alimony order which may be granted), he may use the next section of the Long Arm Statute. Section (h) of the statute provides for personal jurisdiction over a defendant “having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.” [4]
Another important law to aid Jack with the enforcement of any child support order he may receive is the Uniform Interstate Family Support Act. First, this law provides the court which issues the order with continuing jurisdiction:
A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant or the parties have consented in a record or open court that the tribunal of the State may continue to exercise jurisdiction to modify its order, unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.[5]
Second, the Uniform Interstate Family Support Act provides that a state’s child support order will receive the “full faith and credit” of every other state—in other words, other states will be able to enforce the order. In Jack’s case, this gives the California courts the power to enforce any child support order rendered by the Massachusetts courts.
What to speak with a family law attorney about your case? Schedule a free consultation with our office by calling 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] Mass. R. Dom. Rel. P. 4(e)
[2] Mass. Gen. Laws ch. 223A, s. 3
[3] Mass. Gen. Laws ch. 223A, s. 3(g)
[4] Mass. Gen. Laws ch. 223A, s. 3(h)
[5] 28 U.S.C. 1738B
by Damian Turco | Sep 8, 2017 | Co-Parenting, Custody, Legal Custody Articles, Physical Custody and Visitation Articles
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)
by Damian Turco | Aug 28, 2017 | Custody, Legal Custody Articles, Physical Custody and Visitation Articles, Uncategorized, Visitation Rights
As the divorce rate of interfaith couples increases, judges are forced to address the issue of “spiritual custody,” determining custody disagreements regarding religious upbringing. Often, religion is something a person holds near and dear, especially during the emotional time of divorce. As such, determining which faith one’s child will be raised is extremely important.
During the divorce or custody process, a judge will award each party with rights based on equitable distribution and a fairness to each party. In custody disputes, the judge has broad discretion to decide what is appropriate for the minor child by applying the “best interest of the child” standard. This standard has been expanded and is now being applied to a spiritual custody disputes.
Under the best interest of the child standard, a judge can use his or her discretion to grant physical custody of the child to one parent, but may find it is in the best interest of the child the non-custodial to be awarded spiritual custody. A child will live primarily with a parent who is awarded physical custody, and thus is the custodial parent. However, if a judge decides the child’s interest is best served by being raised in the non-custodial parent’s faith, this would bar the custodial parent from raising the child in his or her faith.
The notion of “spiritual custody” refers to a parent’s right to direct the religious upbringing and education of the child. As we noted in a previous blog post, 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. It is important to note that resolving the issue of spiritual custody may directly affect the custodial parents’ rights to the free exercise of religion.
In one Massachusetts case, the Supreme Judicial Court held that the party who sought to restrict the other parents from exposing their children to their religious practices and beliefs has the burden to “demonstrate in detail that exposer to the [mother’s] religion would cause the children ‘substantial injury, physical or emotional, and [would] have a like harmful tendency for the future.’” Kendall v. Kendall, 426 Mass. 238, (1997). The court has added that for the parent looking to restrict the other parent’s religious rights, there must be “an affirmative showing of harm caused by exposure to the conflicting religious teachings.” Id. at 243-244.
Without clear evidence that exposing children to a religion would lead to substantial injury of the child, courts have been reluctant in restricting a parent’s religious liberties. See Lapat v. Lapat, 83 Mass. App. Ct. 1123 (2013). In general, Massachusetts state courts follow the actual or substantial harm standard when ruling in child custody cases involving religious disputes. When applying this standard, the court will only restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if that parent’s religious practice causes actual or substantial harm to the child.
If you have any questions about issues of child custody or support, 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.
by Damian Turco | Aug 21, 2017 | Co-Parenting, Custody, Legal Custody Articles, Physical Custody and Visitation Articles, Uncategorized
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.
by Damian Turco | Jul 19, 2017 | Child Support, Child Support Articles, Custody, Physical Custody and Visitation Articles, Uncategorized
Every four years, the Massachusetts child support guidelines task force assesses the child support guidelines, makes recommended changes, collects comments from the public, revises further, and then presents them to the Chief Justice of the Trial Court, who signs them into application on a date certain. This process has just completed, with the new 2017 Massachusetts Child Support Guidelines going into effect on September 15, 2017. We’ve dived in since they were released yesterday, and here is our initial commentary, with links to the guidelines and supporting materials on mass.gov.
Click here to calculate the child support in your case.
The 2017 Massachusetts Child Support Guidelines & Parenting Time
The 2013 Massachusetts Child Support Guidelines had introduced, for the first time, an intermediate calculation for child support, to be used in circumstances where the “parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%.” This intermediate calculation averaged the base child support guidelines calculation as if one parent was with the child or children approximately two-thirds of the time, with the calculation if the child or children spent approximately equal time with both parents.
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, eliminates that intermediate calculation, and in its commentary, explains why in somewhat scathing terms: “The Task Force agreed that the provision relating to these circumstances needed to be eliminated. The Task Force considered public comment, attorney and judicial experience, the 2008 Report of the Child Support Guidelines Task Force, and the Final Report of the 2012 Task Force when making this determination. The 2012 change [to create the intermediate calculation] increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.” (emphasis added).
The 2017 Guidelines leave two methods through which child support should be calculated: 1. Basic Calculation – the basic calculation presumes that the children have a primary residence with one parent and are spending approximately one-third of the time with the other parent. There is a rebuttable presumption that the child support calculation should be the child support order. 2. Cross Guidelines – “[w]here two parents expect to or do share equally, or approximately equally, the financial responsibility and parenting time for the children, the child support order shall be determined by calculating the guidelines worksheet twice, first with one parent as the recipient, and second with the other parent as the recipient.” In short, calculate child support both ways, and the difference is the presumed child support order.
Of note is the retention of the consideration of the financial responsibility in the cross guidelines calculation, and not in the basic calculation. Further, the 2017 Guidelines places an increased emphasis on the ability of a court to deviate from the Guidelines. The amount that the Guidelines calculates is still the presumed order, but the Task Force seemed to place additional emphasis on the ability to deviate from that figure if it is in the best interests of the child.
The 2017 Massachusetts Child Support Guidelines & Proportional Sharing of Child Care, Health/Vision/Dental Insurance Costs
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, adopts the historical approach in deducting the costs of child care, health insurance, dental insurance, and vision insurance from a parent’s available income for purposes of calculating child support. The Task Force then added a second step, so that parents are sharing, at least somewhat in proportion to their respective incomes, these costs.
Let’s say that that Pat and Dana have one child. Pat is the primary wage-earner, and earns, $2,000 per week. Pat’s employer-provided health and dental insurance costs $100 per week. Dana earns $1,000 per week. The child lives primarily with Dana, spending approximately one-third of the time with Pat. Under the 2013 Guidelines, Pat’s presumed child support payment to Dana is $362 per week. Under the 2017 Guidelines, Pat’s presumed child support payment to Dana, which adjusts twice for Pat’s contributions towards health insurance and dental insurance (as well as vision insurance and child care costs), would be $325.
When the payor is providing for the cost of health insurance, dental insurance, vision insurance, and/or the cost of child care, it would be beneficial for him or her to speak with an attorney to discuss whether it is advisable to modify his or her child support obligation.
The 2017 Massachusetts Child Support Guidelines & Children between the Ages of 18 and 23, and Contribution towards the Cost of College
In addressing the payment of child support for children that are over the age of eighteen and have graduated from high school, the 2013 Massachusetts Child Support Guidelines instructed that a “Court shall exercise its discretion in ordering support and/or college contribution. The Court shall consider the reason for continued residence with and dependence on the Recipient [of child support], the child’s academic circumstances, living situation, the available resources of the parents, the costs of post-secondary education for the child, the availability of financial aid and the allocation of these costs, if any, between the parents. Contribution to college costs is not presumptive, but is based upon the above factors. If a specific college contribution is ordered, this contribution shall be considered by the Court in setting the weekly support order, if any.”
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, provides more guidance for parents, judges, and attorneys, in how to address the issue of children that have graduated from high school but are not yet emancipated for purposes of a child support order, or an order for a parent or parents to contribute towards the cost of that child’s college education. The 2017 Guidelines differentiates between children under 18 and children over 18 in the formula itself. Table B, which is used for adjusting the formula on the number of children in the family, has transformed from two columns to five: Table B in the 2013 Guidelines Table B in the 2017 Guidelines The result is a 25% adjustment downward for children over the age of 18.
As explained in the Commentary to the 2017 Guidelines, this considers the possibility that children of that age group might not be living full-time at a parent’s residence if living at a post-secondary educational institution, and have the ability to work and contribute towards household expenses. The 2017 Guidelines explains that courts retain discretion in awarding child support for children between the ages of eighteen and twenty-three. The 2017 Guidelines also eliminate as factors for consideration in setting an order for a child over the age of 18 “the costs of post-secondary education for the child,” and “the availability of financial aid and the allocation of these costs, if any, between the parents.”
On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college. The Guidelines establishes a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.” Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.
Read more information about additional changes and considerations in the 2017 Guidelines in our follow-up blog post.
by Damian Turco | Mar 2, 2017 | Appeals Articles, Caregivers, Co-Parenting, Custody, Legal Custody Articles, Physical Custody and Visitation Articles
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.
