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.

Step-Parent Adoptions

Today, society embraces blended families. Heartwarming stories about adoption and the wonderful gift of having a child abound. Often, a new marriage following a divorce brings children into the equation.

If you are a new step-parent, you may be interested in the possibility of adopting your step-child. Adoption may create a closer bond with you and your step-child, as well as a more stable family unit. This process can become complicated and complex, but also very rewarding for both you and the child. As family attorneys, we frequently deal with step-parents’ interest in adoption and are happy to assist you in this process.

In Massachusetts, a step-parent may adopt a step-child. To begin this process, a step-parent may file a petition to adopt, as long as the child is the step-parent’s spouse’s child. If the child you are adopting is over 14 years old, you must also obtain his or her consent to confirm that the child would like to be adopted. Additionally, your spouse must have legal and physical custody of the child. Legal custody means that a parent makes important decisions on behalf of their child regarding education, religion, and medical decisions. Physical custody determines where a child’s primary residence is.

For an adoption petition, a child must be in physical custody of the step-parent and spouse-parent for at least six months before the petition is filed. Also, it is important to know that the biological parent without custody must relinquish any parental rights in order for the adoption to take place. In these situations, we encourage step-parents to assess their family dynamic, the biological parent’s involvement in the child’s life, and what would be in the best interest of the child. Please be aware that the Commonwealth encourages both biological parents to be in a child’s life. If this is occurring, then step-parent adoption may not be possible, as both biological parents have an active role.

However, a step-parent may be forced to take on the responsibility of a biological parent. There are many instances in which a child can suffer severe physical or emotional damage if they remain in connection with their biological parent. Physical abuse, emotional abuse, substance abuse, incarceration, and death are just some of the reasons why a step-parent may be put in a position to adopt a stepchild. It is important to be sensitive to the reasons why a biological parent is suddenly unfit to be part of their child’s life. While you may be a better suited parent, custody and adoption hearings can be very contentious. As there are many parties, each wanting different outcomes, our family law attorneys will help you navigate the adoption process. Also, we will assist in ensuring that any court orders or pre-existing agreements are terminated by the time an adoption takes place.

Once the petition is approved, the adoption process differs from a standard adoption. A standard adoption involves the Commonwealth’s analysis of whether you and your spouse would be fit parents. However, as it is likely your spouse is a fit parent, and it is their child, home studies and state intervention are not required.

Once you adopt your stepchild, you take on the legal and physical rights of becoming the child’s guardian. As a responsible parent, you take on the responsibility of financially and emotionally supporting your spouse’s child. With your spouse, you will have the ability to make decisions on a child’s education, medical care and religion. You will also have the opportunity to give your stepchild benefits, such as health insurance.

Additionally, the process changes the child’s birth certificate, replacing the absentee parent’s name with yours. Through this process, your stepchild will be able to inherit under your will. In this case, as you are now the guardian of this child, they can inherit through intestacy under a will, even though you are not biologically connected. Also, if you and your spouse divorce, you may be liable for child support and custody of your stepchild since you have taken financial responsibility of this child.

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

 

The Best Interest of the Child Standard

When embroiled in a divorce, children play an important factor in many decisions such as child custody and child support. As these issues can greatly impact a family, our family law attorneys educate parents and soon-to-be-divorcees on how the court views these important issues.

Child custody decisions can create a lot of tension for children, divorcing parents, and overall family dynamic. Our family law attorneys know how daunting this can be—possibly, you won’t be seeing your children every day, and the amount of time you have with them is becoming uncertain. In this post, we will be highlighting the “best interest of the child” standard, which is an integral part of the court’s decision and a common standard at the heart of child custody decisions.

If you and your former spouse are unable to reach an amicable agreement regarding child custody, your family’s future will be determined by a judge. In the Commonwealth of Massachusetts, the judge takes a deeper look into a child’s lifestyle and what would be best suited for the child when making this decision. Instead of investigating what may be best for each parent, the judge solely focuses on the child. As every divorce is different, the “best interest of the child” standard is viewed is on a case-by-case basis. Because children have different needs, and family situations are wide-ranging, the courts of the Commonwealth take a fact-specific approach when determining what is in a child’s best interest.

Massachusetts courts and law encourage a custody arrangement where the parents share both legal and physical custody. Physical custody determines where a child’s primary residence is, and legal custody involves important decisions made for a child. These can be decisions regarding medical issues, religion, and education, just to name a few. Generally, if one parent is being granted sole custody in either of these areas, the court finds that financial instability, substance abuse, domestic violence, and other toxic situations negatively impact a child’s upbringing. As the primary caretaker for a child, a sole custodian will make all of the major decisions for the child.

As a parent, you may be wondering what factors go into what the court defines as the “best interest of the child,” since it is so fact-specific. While the standard is not exact, the court does look at several areas in determining what is in the best interest of your child. Factors include a child’s health, safety, and general quality of life. If your child has a physical or mental disability, the court will look into what would be best for the child’s situation. Also, if you have multiple children, the court often wants to keep families intact, so it likely the judge will want to keep siblings together.

Even though the court is generally focused on the child, your ability to parent is crucial in determining in what is in the best interest of the child. As noted above, the court does not want to place a child in a toxic situation. While more extreme issues such as substance abuse and criminal activity will be examined, the court can also look into your physical and mental health, work schedule, parenting style, and the type of home environment you provide. If the court finds that these factors positively impact your child and their development, it may be more likely to provide you with custody.

As these are incredibly broad areas, the judge can choose to determine this standard as he or she sees fit. Often, this information allows the judge to make a decision based on how fit a parent is to be a stable, supportive caretaker for their child. Since there are so many angles a judge can take regarding what is in your child’s best interest, our family attorneys can help you prepare for this area of divorce to do what is best for your children. As you will likely need to testify to a judge why you should be rewarded custody, our attorneys will adequately prepare you, so you are awarded custody of your child.

If you need more information surrounding the best interest of the child standard, child custody, 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 we will respond to your phone call or submission 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.

Health Insurance Issues in Divorce and Custody

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.

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.