Visitation Options in Cases of Domestic Violence

Matt and Mary are going through the 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. 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.

Absent Parents and Termination of Parental Rights: New Case Law

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.

 

 

What is a Parenting Plan?

Benjamin and Sarah are divorcing. They have four children between the ages of 6 and 17. Both parties contest the issue of custody of the children. And, both parties want to establish a plan to share legal and physical custody. The parties want their parenting plan to make sense, so that it reflects the respective ages and developmental stages of their children.

In Massachusetts, when the issue of custody comes up in court and either party wants shared legal or physical custody, either party may file a custody implementation plan with the court. This custody plan should include the details of the shared custody plan, including the following:

  • the child’s education;
  • the child’s health care;
  • procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and,
  • the periods of time during which each party will have the child reside or visit with the parent, including holidays and vacations.

If each party, individually or jointly, submits a parenting plan to the court, the court must consider the custody implantation plan(s). The court can use or modify the plan(s) that the parties submit. The court can also reject the plan and issue a sole legal and physical custody award to either parent.

 

What Makes a Good Parenting Plan?

Massachusetts offers model parenting plans for parties who seek guidance in crafting their plans. The model parenting plan–offered by a task force of judges, probation officers, and mental health professionals–is not mandatory. But, the model parenting plan is a structured and guided approach for allotting the right amount of time that a child is to spend with each parent based on the child’s best interests.

The model parenting plan lists several factors to include when crafting a model plan. These factors include:

(1) level of tension of conflict between the parents;

(2) parenting skills already in place;

(3) child’s physical and emotional health;

(4) child’s temperament and adaptability to change;

(5) child’s developmental age and abilities;

(6) child’s daily schedule;

(7) availability of each parent;

(8) location of both parents;

(9) parent’s ability and willingness to learn basic care giving skills;

(10) sibling groups; and,

(11) close care-taking relationships.

Parents Benjamin and Sarah should evaluate their children’s needs and developmental levels to draft a plan. Then, a court would review their plans and either choose a plan, modify a plan, or establish a new plan that is in the best interests of their children.

Family and child law matters are nuanced and fact-based. Your family law matter is as unique as your family. 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.

Enforcement of Child Support Orders

As part of James and Jeri’s divorce, James is ordered to pay $153 per week in child support. For the past two months, James has not paid any support to Jeri. What could happen in this case?

There can be several consequences for parents when they do not pay their child support obligations. If a court orders a parent to pay child support, the parent must make those payments. If the payor parent (the one ordered to pay) fails to make the payments, the parent seeking the payment must file a complaint to enforce the order. This complaint is known as a contempt complaint.

Once a contempt complaint is filed, the payor parent will receive a summons with a hearing date. At the hearing, a judge will consider evidence. This evidence can include any changes in circumstances and the parties’ financial statements. If the judge determines that the payor parent is in contempt for not making child support payments, he or she will decide on the amount that is past due and the date by which the past payments must be paid.

Depending on the court order, the judge may order the payor parent’s wages to be garnished through the Department of Revenue. Then, the court will have clear records of how much that parent owes. In some cases, the order may indicate that the payor parent should pay the other parent directly. This could make it more difficult to figure out the accurate amount of past due child support.

 

What Else Can the Judge Do?

 

If the judge determines that the payor parent has not made child support payments, this ultimately means the parent is in contempt of court for violating the court order. The judge may enforce the order and will apply an appropriate punishment depending on the situation. This may result in a fine, suspension of the parent’s driver’s license, or even jail time. Additionally, the parent may be subject to giving up other rights. For example, the parent may not be able to get a passport. Or, the parent may be barred from being issued a variety of state-issued licenses. Ultimately, the judge will require the payor parent to pay the custodial parent the amount owed in past child support.

Jail time may seem like a drastic punishment for not paying child support. Yet, the courts see it as an appropriate motivator. The payor parent will be released from jail once she or he pays. When dealing with past due child support payments, the court is ultimately most concerned with the well-being of the child. So, the court takes the enforcement of child support orders very seriously.

If you have any family law questions, 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.

 

 

Massachusetts Long Arm Statute in Divorce and Custody Cases

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

Stages of Development and the Custody Order

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)