by Damian Turco | Feb 13, 2019 | Custody, Separation
Warning: Themes of domestic abuse.
Jacob and Leah are 7-year old twins. Their parents, Jeff and Hannah, were married for eight years before finally deciding to pursue a separation and ultimately a divorce.
The relationship Jeff and Hannah was tumultuous. For the latter five years of their marriage, Hannah struggled with depression. Jeff did not support Hannah’s mental health needs. In fact, Jeff was abusive towards Hannah. He was verbally abusive most frequently, but also, was occasionally physically abusive when he would drink, which was often. On one occasion, the local police showed up to their home for a domestic violence incident in which Jeff attempted to throw the house phone at Hannah’s head, barely missing her. Jeff’s substance abuse issues caused most of the domestic violence and other abuse issues in their home.
Finally, Hannah decides to file for divorce. The divorce forced Jeff to reevaluate his life and has since become sober and takes anger management courses. He sees a therapist regularly. The probate and family court must decide where to place the twins, Jacob and Leah. One of the questions for the court to consider is whether Hannah or Jeff may have temporary or permanent custody of their twins, Jacob and Leah.
Jeff wants to know: does he have a chance at having Jacob or Leah placed with him? Can he have custody of his children?
Best Interest of the child
Massachusetts law requires that children are placed with parents or a parent or put into circumstances that are in the best interest of the children. The law states that in issuing a temporary or permanent custody order, the probate and family court must consider any evidence of past or present abuse toward a parent or child as a factory that is contrary to the best interest of the child.¹ This does not mean that a parent with a history of abuse cannot have custody of a child. It does mean, however, that the court must view what is in the best interest of the child from the viewpoint of that child, taking several factors into account before awarding an order of temporary or permanent custody.
In Massachusetts, “abuse” is either attempting to cause or causing bodily injury or placing another in reasonable fear of bodily injury.² This definition of abuse applies to acts between a parent and another parent or between a parent and a child. If a court determines by a preponderance of the evidence that a pattern of abuse has occurred, a rebuttable presumption is created whereby the abused parent is not the parent that a court would consider to be in the best interest of the child for sole custody, shared legal custody, or shared physical custody. The presumption may be rebutted with evidence that the placement would be in the child’s best interest.
Legal Custody vs. Physical Custody
In the fact pattern above, Jeff attempted to cause injury to Hannah during their marriage. He was frequently verbally abusive, especially when he was drunk. He also placed her in fear of imminent serious bodily injury. Although he took these actions when he was drinking, a court would likely find that he was abusive. Depending on the extent of abuse the court finds, a court may find that Jacob and Leah should not be placed in shared legal custody with Jeff. If the mother is granted sole legal custody, Jeff will still be allowed to see medical records and be part of their lives but would not make any major decision for them. For the sake of our fact pattern, let’s assume the court finds extensive abuse during the marriage. The court awards the mother sole legal custody and then moves on to a physical custody determination.
Visitation Time
In this fact pattern, the court orders temporary supervised visitation to Jeff. Supervised parenting plans can vary widely. Some are supervised by other family members while some are supervised by professionals. The visits in this hypothetical might be an hour or longer and happen monthly or weekly depending on the severity of Jeff’s previous abuse.
After a reasonable period of time successful supervised visits, Jeff can file for shared physical custody. He could do this by convincing the judge that he is sober and has overcome his anger management issues, supported by the supervisor’s notes and possibly his therapist. He may also wish to note that he has never been abusive toward his children. If there are other facts about Hannah’s behavior that would support the argument that she should have less time, he should assert them at this point.
Essentially, Jeff must convince the judge of a material change in circumstances (his sobriety and treatment in this case) and that a more equal parenting plan is in the best interests of Jacob and Leah.
There are many complexities to family law, especially within the issue of complex child custody. As such, it is important that you hire a competent family law attorney to handle your unique case or address your concerns. If you have questions about complex child custody issues, divorce, abusive marriages, child law, or custody law, you should hire a seasoned attorney licensed to practice law in the Commonwealth of Massachusetts. Consider meeting with an attorney from our office to discuss you case. Just contact our offices by phone at (866) 995-6663 of schedule a consultation online.
¹ Mass. Gen. Laws. c. 209 s. 38
² Id.
by Damian Turco | Jan 31, 2019 | Alimony, Child Support, Custody
Choosing a medical treatment is a tough decision for most people, but it becomes more difficult if the treatment is for a loved one. For any parent, there is nothing more terrifying and painful than the feeling that you cannot help your child. This is compounded if your child is ill and there is nothing that you can do to make your child better. Imagine, however, that there is something that you can do, but your ex is preventing you from taking steps that will help your child.
Imagine this scenario:
You and your ex have two children. One of your children has been diagnosed with a serious medical condition that requires expensive and experimental medical treatments. Your child’s physician tells you that without the treatments, your child’s condition is life-threatening. The physician also tells you that the treatments have a 33% chance of helping your child. Unfortunately, your ex and their new partner believe in “the power of prayer” and believe that if your child is meant to get better, then God will make your child better with prayer. Your ex has sole legal and physical custody. What can you do to help your child to receive these medical treatments?
Types of Custody:
In Massachusetts, there are four different types of child custody arrangements. In some cases, Parents can make their own arrangements.The judge will determine what parenting plan is in the best interest of the child or children. Sole legal custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Sole physical custody means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts Probate and Family Court judge decides that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about children. The court evaluates the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
What can be done?
When a substantial and material change in circumstances exists, one party may move to request that the court modify the current child custody arrangement. Because of this, the father from the example above may request that the court award him legal custody. This would allow him to make the medical treatment that he believes are in the best interest of the child. A court would likely evaluate the child’s best interests through the lens of the child, not the lens of the mother’s boyfriend’s religious beliefs. The court would likely modify the custody arrangement, allowing the father to make the sole medical decisions for the child. The court would not consider the mother’s boyfriend’s religious beliefs. This decision is between the parents, the court, and the child and is one that is only about the child’s best interests.
Suppose instead that another party—not a parent—wants to challenge custody using the facts above. For example, could a grandparent, a school, or a Guardian Ad Litem challenge the religious beliefs of the parents if the other party believes that the parents are not acting in the best interest of the child? The answer…yes and no. While another party may challenge the beliefs of the parents through a protective services agency, via parens patriae, a Massachusetts court would not take this power away from the parents if the treatment were so experimental so as to provide no chance at saving or helping the child. A Massachusetts judge would need to decide what is in the best interest of the child when making such decisions.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.
by Damian Turco | Jan 29, 2019 | Child Support, Custody
Raising a child as an unmarried couple can be difficult, but the state of Massachusetts has guidelines on how to navigate child custody issues. Some legal issues that unmarried couples will have to consider are: establishing paternity, child support, and visitation. While navigating these issues, it’s in your best interest to hire a competent family law attorney to ensure a fair arrangement that most benefits the children.
It’s important to keep in mind that the main goal of child custody is to come to an agreement where the parents are able to raise children together, while being apart. Every child custody agreement looks different and is very fact-specific depending on the couple’s situation. The one thing all parents have in common regardless of their marital status is that they are permanently connected through their children. And from this it is important to remember that these custody matters are being handled for the child. It is important to keep in mind that when carrying out these discussions to find the best solution for the child.
Establishing Paternity
In Massachusetts, if child is born into a marriage, there is a presumption that the husband is the father of the child. However, for a child of an unmarried couple to have a legal father, paternity must be established. A father may establish paternity by signing the birth certificate at the time of the child’s birth or either parent may request a court order for genetic testing. Establishing paternity creates several rights for a child. Some of those rights include, giving the child access to their father’s medical history if they become ill, being financially supported by their father, and receiving access to their father’s services, such as their father’s pension, health insurance, inheritance, and social security.
Child support
Child support is a payment by one parent to the other and is one way for parents who don’t live together to share the financial responsibility of their child. In Massachusetts, it doesn’t matter if you are married to the child’s other parent, if you are the legal parent of the child you are required to support them. Child support payments a determined by the court after they review several factors including:
- The cost of raising the child, including medical bills and school tuition
- Monthly expenses of each parent (housing, health care, etc.)
- Income of each parent.
Usually, one parents will to be primary care taker who bears most of the financial expenses. Therefore it’s the court responsibility to consider the non-exclusive list of factors mentioned above to come up with an appropriate amount the other parent should pay in child support each month. Child support payments can be modified. A modification is warranted if there is a material change in either parent’s income or with the child’s needs.
Visitation order
A visitation order gives the parent who does not live with a child a way to spend time regularly with the child. In some cases, unmarried couples are able to come up with an agreement on their own and the court will enter the order. However, in other cases non-married parents are not able to come up with a visitation order that they both agree on. In situations where the parents are unable to agree, the court will enter its own agreement. Regardless of the parent’s ability to cooperate with one another, when establishing a visitation agreement, the main goal of the court is to come up with an arrangement with serves the best interest of the child.
Regardless of whether you are married or unmarried, the issues surrounding child custody can be complicated and cause emotional distress. It’s essential to keep in mind that when coming to an agreement with a child’s other parent that the child’s best interest is of the utmost importance. If you find yourself in the middle of a dispute regarding paternity, child support, or visitation it is best to seek help from a qualified family law attorney. Our attorneys are able to set emotional drives aside and see the most important thing for the child and represent that throughout the case. Our divorce, family, and domestic relations attorneys may be able to work with you to help resolving you family matters. Contact our offices by phone at (866) 995-6663 during business hours to schedule a free consultation.
by Damian Turco | Jan 24, 2019 | Adoption, Custody
In a recent decision, Adoption of Ulrich, the Massachusetts Appeals Court addressed the termination of parental rights of a mother of five children, along with the mother’s entitlement to effective assistance of counsel.
The mother in this case had a lengthy criminal history and was the subject of five abuse prevention orders. The Department of Children and Families filed a care and protection proceeding on behalf of the children after the mother was arrested for stabbing the children’s father with a pair of scissors, with the children witnessing the incident. Temporary custody was initially granted to the maternal grandmother, then to a paternal aunt; however, after evidence of abuse in the aunt’s home emerged, the Department retained custody of the children.
In the following years, the mother’s willingness to work on her mental health and substance dependency issues fluctuated: at times, she was unwilling to enter a residential program or see her therapist, while at other times, she was willing to do so. Likewise, her visits with her children ranged from “successful to disastrous,” as the Court put it, some of the visits ending with the children running out of the room and crying and the mother hurling obscenities at them.
After a particularly tumultuous visit in which the mother declared that she was “done” and “these kids aren’t [my] issue, let their workers deal with them,” the Department informed the mother that her parental rights would be terminated. After a trial, the judge issued orders terminating the mother and father’s parental rights.
The mother appealed. After the mother entered the appeal, she motioned the Court to stay the appellate proceedings, so that she could bring a claim of ineffective assistance of counsel, vying for a new trial in the Juvenile Court. A single appellate justice heard that motion and denied it. The Appeals Court acknowledged that the mother was entitled to the effective assistance of counsel in a termination of parental rights proceeding.
However, the Court agreed with the single justice, holding: “we discern no error of law or abuse of discretion in any choice by the single justice to consider the prospects of the mother’s new trial motion for success in the Juvenile Court if a stay were granted; indeed, such consideration is entirely consistent with the consideration of judicial economy…and the interest in prompt resolution of custody. Placing the appellate process on hold to allow prosecution of a fruitless new trial motion in the trial court would serve neither interest.”
The Appeals Court then looked at the crux of the mother’s claim for ineffective assistance of counsel: he claims that her attorney erred by not calling the maternal grandmother to testify at trial. The Court noted that the mother at one point accused the grandmother of fabricating claims of sexual assault, which made it entirely reasonable for the mother’s attorney not to call the grandmother as a witness, in order to avoid damaging testimony elicited on cross-examination. “In any event, the evidence of the mother’s unfitness was overwhelming, without regard to the matters about which the mother now claims the maternal grandmother should have testified,” the Court noted. “It is accordingly unlikely that the decision of trial counsel about which the mother now complains had any bearing on the result of the trial.”
The Appeals Court then considered the mother’s parental fitness, ultimately affirming the trial judge’s decision to terminate parental rights. As the Court described, parental rights can only be terminated when it is in the best interests of the child and when the judge determines that the parent is unfit. In this case, the Court held, there was ample evidence that the mother was unfit. Moreover, the Court noted that mere participation in services does not render a parent fit, without some discernible evidence of improvement of her parenting.
The Appeals Court also noted that it was in the best interests of each of the mother’s five children to terminate parental rights, allowing the children to be placed in homes which would assist them with their various mental health issues, early intervention services, therapy programs, and a stable environment.
If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours.
by Damian Turco | Jan 23, 2019 | Custody, Divorce
In Massachusetts, when a parent separates their partner, they may not agree about how they will handle the various circumstances that arise when raising their child. Because of this, either party (or both) parties may ask a Massachusetts judge to write an order asking for custody, which a judge may accept, reject, or modify.
Let’s say that a father lived and worked in Massachusetts. A mother and her new husband decided to move from Massachusetts to Rhode Island. The mother had been awarded sole physical custody of their child, Corey. The father, therefore, is a non-custodial parent. He wants to know if he has any rights to his child. He is upset that his visitation will be changed if the mother and her new husband move to Rhode Island, especially because the new move means that he will be over 50 miles away from his son.
In Massachusetts, there are four different types of child custody arrangements. Parents can make their own arrangements, and the judge will determine if the agreement that the parents craft is in the best interest of the child or children.
The first type of custody is “sole legal custody.” This form of child custody gives one parent the right and responsibility to make major decisions about the child, including decisions about education, medical care, religion, and emotional needs. Another type of child custody is “shared legal custody,” meaning that both parents are involved in and responsible for the major decisions about the child. A third form of custody is “sole physical custody,” which means that a child lives with one parent and is subject to reasonable parenting time by the other parent, unless the Massachusetts family court judges decide that parenting time between the child and the parent would not be in the best interest of the child. Parenting time is a form of visitation. The parent with parenting time does not have physical custody of the child. The final form of child custody is “shared physical custody.” This type of child custody gives the child periods of living with each parent, so that the child has frequent and continuous contact with both parents.
Judges in the Commonwealth determine what is in the best interest of the child when they make decisions about custody or parenting time. The court will evaluate: the child’s well-being; how the child is doing in school and in the community; the child’s relationship with the parents and other members of the family; the parents’ history of abuse, drug use, or abandonment; whether one parent has been a primary caregiver in the past; and the child’s preference, depending on the age and maturity of the child.
Applying the laws to the facts above, the father may argue that his son’s move to Rhode Island would be burdensome on him and his rights to parental visitation as the non-custodial parent. Massachusetts courts recognize the adverse effect of the elimination or curtailment of the child’s association with the non-custodial parent. However, the court would likely still hold that the father’s right to see his son with an “alternative visitation arrangement” would not be affected. This is especially true if the parent’s schedule is suitable for the change.
Courts in Massachusetts make decisions such as these based upon the best interest of the child. For Corey mentioned above, the court might believe that his education opportunities and stability opportunities would be expanded with the move. The father’s reasonable parenting time would not need to change, but would only need to adapt in some way.
Parents with sole physical custody have the right to have the child at home with the parent. However, the other parent has the right to parenting time, so long as this parenting time benefits the child as well. If both parents as described above had shared physical custody, then a court may hold that such a move would be detrimental to Corey.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-6663 or complete a contact form on our website. We will return your inquiry with prompt attention.
by Damian Turco | Jan 11, 2019 | Custody
Now that recreational marijuana is legal in Massachusetts, a burning question exists: how does use of marijuana affect custody issues? If one spouse uses marijuana during a divorce, for example, how does the Massachusetts Probate and Family Court determine child custody?
Picture this fictional scenario: Cindy and Peter seek a divorce. They have one child named Kevin. Cindy is a great mother. She also smokes “pot”. Her recreational use of marijuana occurs about once or twice per week. Peter does not use marijuana. During the divorce, both parties want to obtain custody of Kevin.
Child custody issues are determined with one objective: the best interests of the child. The Massachusetts Probate and Family Court will make child custody determinations based on what is best for the child, which may include the actions or inactions performed by either or both parents. This determination may involve concerns about a parent’s recreational or medical marijuana use. Massachusetts judges may consider the frequency of the use, the child’s age, whether the child is susceptible to using the drugs, and whether the parent uses the drug in the presence of the child. Although some may view marijuana in a similar light as alcohol, others may hold strong a bias against marijuana. It is important to note that marijuana is not legal at the federal level.
Using the above scenario with Cindy, a Massachusetts judge has substantial discretion to determine the custody of Kevin. A judge could determine that her use once or twice per week is frequent and not best for Kevin. If Peter’s attorneys threaten to use Cindy’s use against her potential custody of Kevin, the attorneys could damage Cindy’s change of having custody or visitation of her son.
Suppose instead of her using recreational marijuana, Cindy instead used marijuana for a medical purpose. Would her medical use of the drug negate any argument made my Peter’s attorneys that she is not fit to have custody of Kevin? Of course, this depends, but the general answer is no. A Massachusetts judge could still decide that Cindy’s use of marijuana, regardless of recreational or medical consideration, is not in the best interest of Kevin. The best interests of Kevin are the most important determination for child custody decisions. A court does not want to award custody to a parent who could possibly put Kevin in some kind of danger. Imagine, for instance, that Kevin was diagnosed with severe asthma and that Cindy’s use of marijuana harmed Kevin or could harm Kevin as second or third-hand smoke—in that case, Cindy’s use of the substance would not be in the best interest of Kevin. Imagine instead, however, that Cindy used marijuana in a different form than smoking the substance, perhaps instead as a tea. That ingested form would not be as harmful to Kevin. These factors would all be considered and determinations made by a judge in Massachusetts.
Some may want to know: Would a Massachusetts judge award custody to a parent who was a seller or dealer of drugs? It is highly unlikely that a parent who sells marijuana as a side business would receive custody of her child, though there may be some exceptions, such as the cultivation or sale of hemp-based products or CBD oil. (These products do not contain the THC that makes someone high, so as to impact the parent’s capacity around his or her child.) Even in these circumstances, a Massachusetts judge has the final determination as to which parent is the custodial parent and which parent is the non-custodial parent. Marijuana may or may not be a large factor.
Another issue that may come up in child custody disputes is a parent’s prior use of marijuana. For example, suppose that Cindy as mentioned above had used marijuana years prior to the divorce. Would her prior use be a factor in the child custody decision? Most likely not, so long as the prior use does not affect the best interests of Kevin. Courts ultimately want children to be with parents who will make the best decisions for the children, and will likely not use past marijuana use against the parent, absent other issues.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-663 or complete a contact form on our website. We will return your inquiry with prompt attention.
