Challenges Faced by Grandparents Seeking Custody or Visitation

Forget the sappy Hallmark ads depicting grandparental bliss. Forget the press about the important relationship forged between grandparents and grandchildren. When it comes to visitation, grandparents using the courts to assert their rights to see their grandkids face an uphill battle. Count Massachusetts among roughly 20 states with restrictive visitation statutes.

The notion that parents have the right to custody, control and care of their offspring is well-established in law. In a 2000 case[1], the U.S. Supreme Court found a “presumption that a fit parent will act in the best interest of his or her child” regarding whether grandparent visitation should occur.

Under Massachusetts law[2], grandparents may petition a probate court for visitation rights with their unmarried minor grandchild if that minor child’s parents:

  • are divorced;
  • married but living apart;
  • under a temporary order or judgment of separate support;
  • are one or both deceased; or
  • bore the child out of wedlock and paternity has been adjudicated or acknowledged in writing and the parents do not reside together.

The probate court may grant “reasonable visitation rights” to the grandparents, even if the minor child’s parent(s) object, if the court deems, in writing, that doing so serves the minor child’s “best interest.” The statute, however, offers no insights into gauging “best interest.” Moreover, adoption of the minor child by anyone other than a stepparent precludes granting grandparent visitation rights or terminates any such rights that were in effect pre-adoption.

The seminal Massachusetts case[3] on this subject involved a maternal grandfather who sought visitation of the minor child of unmarried parents where paternity had been adjudicated. The mother successfully argued in probate court that the visitation statute unconstitutionally violated her due process rights. The Supreme Judicial Court reversed the judge’s dismissal of the grandfather’s claim and upheld the statute’s validity, but imposed on grandparents the burden of proving “failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.”

The high degree of risk to a minor necessary to rebut the presumption favoring parents deciding their child’s best interest was demonstrated in another Massachusetts case.[4] In that case, the Appeals Court reversed the dismissal of a maternal grandmother’s visitation complaint where the parents didn’t cohabit. The parents had cut off contact between the child and the grandmother, who had previously obtained a restraining order against the father for alleged abusive and harassing phone calls. Grandparent visitation was warranted, the Appeals Court concluded, to deter the possibility of the minor facing isolation from family and physical abuse.

A parent’s death or incarceration often underlies visitation disputes. Courts weighing visitation examine factors, including the preexisting relationship between the petitioner and grandchild, the child’s emotional needs, and the danger of physical or emotional abuse to determine whether the grandparent’s absence would significantly affect the child.

A visitation petition[5] should detail the nature of the grandparent’s relationship with the minor, describe present access to the grandchild, how curbing or denying access significantly harms the minor, and propose a visitation schedule. The minor’s parents must be informed of the petition, which often triggers a court appointment of a guardian ad litem to investigate and offer a recommendation to the court.

If parents abdicate their child-rearing obligations, a grandparent may seek legal custody. No specific statute provides for grandparents to sue for custody. Unless the parents consent, are deemed unfit, or are otherwise unavailable to provide care, grandparents will be hard-pressed to obtain guardianship of their minor grandchildren. Besides foster care and adoption, the Commonwealth does permit a parent to sign a revocable Caregiver Authorization Affidavit that gives a grandparent a concurrent voice with the parent regarding decisions affecting the minor’s health care and education.

 

[1] Troxel v. Granville, 530 U.S. 57 (2000).

[2] M.G.L. c. 119, §39D

[3] Blixt v. Blixt, 437 Mass. 649 (2002)

[4] Sher v. Desmond, 70 Mass. App. Ct. 270 (2007)

[5] Affidavit of Care and Custody

Custody Disagreements Regarding Religious Upbringing

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.

Property Attachment and Divorce

A property attachment is a possibility during divorce: either spouse, under Massachusetts divorce laws, may attach the other spouse’s real and personal property to ensure suitable support for the attaching spouse and children in his/her care and custody[1].

Consider the example of Betty and Bob, who made their marital residence a ranch home Bob purchased in his name before their union. When the marriage dissolved, Bob tried to sell the home, despite a restraining order that prohibited him from putting the home up for sale. In such a scenario, a writ of attachment filed in the Registry of Deeds of the county in which the couple resides will notify any would-be buyer that title to the property is not clear because of pending litigation. This includes Betty’s spousal lien, which preserves her rights to distributable property in the separation agreement.

A writ of attachment, signed by the applicable Probate Court clerk under the Commonwealth court’s seal, must include the following information:

  • the parties’ names and residences;
  • the divorce complaint date;
  • the name and address of the plaintiff’s attorney, if any; and
  • the name of the justice granting the attachment and the approval date[2].

The writ directs the applicable county sheriff or deputy, or other individual duly authorized by law, to attach the defendant’s targeted real or personal property in the court-approved amount and return the process to the court.

The spouse seeking the property attachment must file the complaint for divorce, along with a motion for attachment backed by an affidavit containing facts based on the spouse’s own knowledge or belief. The defendant spouse must be given notice of the application for the attachment, which, after hearing, a justice may grant only after finding “a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment[3].” Attachment must be made within 30 days of the writ’s approval.

A property attachment may be made by a court-ordered injunction that would enable a party to attach in equity stock shares and other property unreachable in actions at law. Alternatively, attachment may be made by trustee process, under which service of a summons is made on a trustee notifying the trustee to attach designated goods, effects and credits of the defendant in the trustee’s hands[4].

Another form of encumbrance is a lis pendens, whereby a party makes a claim of right to title to real property or its use and occupation. If, after a hearing, a judge approves the motion, a memorandum is filed in the appropriate registry of deeds identifying the court where the case is pending, the date of the writ, and a description of the property and town where it is located.

Attachment of property in a divorce action may also be made by a counterclaim, cross-claim or third-party complaint. The rules allow one party to seek an attachment “ex parte.” A court must find reasonable likelihood of recovery by the plaintiff and circumstances such as not having jurisdiction over the defendant spouse or evidence that the defendant will destroy, conceal or try to unload the targeted property if notified in advance of the attachment action.

If you have any questions about issues of divorce or property assignment, 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] M.G.L. c. 208 §12; Mass. Dom. Rel. Proc. Rule 4.1 (a).

[2] Mass. Dom. Rel. Proc. Rule 4.1 (b).

[3] Mass. Dom. Rel. Proc. Rule 4.1 (c).

[4] M.G.L. c. 208, §13; Mass. Dom. Rel. Proc. Rule 4.2.

What is the Role of a Parenting Coordinator?

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.

Alimony Payments: How Does Retirement Affect Them?

Sally and Bob were married for nearly thirty years, during most of which Sally worked as a doctor while Bob took care of the couple’s children. In 2002, they divorced, and the court ordered Sally to provide $500 per week to Bob. Sally has now reached “full retirement age” and wants to know whether the payments to Bob may end. What is the intersection of alimony payments and retirement?

The answer – as it is in many cases with the law – is: it depends. Specifically, the Court will look at whether any material change of circumstances has occurred.

One of the most financially challenging aspects of any divorce proceeding is the requirement that one spouse provide alimony payments to another spouse. Alimony is court-ordered support from one spouse to another.[1] In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments.

In Massachusetts, there are four types of alimony[2]: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

Typically, General Term alimony payments are required for the length of time that the marriage lasts. They may end after a specific length of time established by a court. Alimony payments may end, also, when either spouse dies, when the spouse receiving the alimony remarries, or when the spouse paying the alimony reaches “full retirement age.” If the paying spouse continues to work past the retirement age, the paying spouse may not be required to continue to pay more alimony.

Judges may also choose to provide an extension of time for alimony payments, such as if there is a change in circumstances after the alimony payments and length of time were decided or there is clear and convincing evidence given for the need for an extension. This is where the issues of alimony payments and retirement intersect.

A potential issue arises when an ex-spouse reaches the full retirement age and wants to terminate his or her alimony payments to his or her ex-spouse and the judgment order for alimony was established prior to the passing and enforcement of the Alimony Reform Act.

Massachusetts courts have held that for some alimony orders entered before March 1, 2012, the orders must continue past the “full retirement age” unless the paying spouse establishes that a material change of circumstances warranting modification of the alimony order.[3] Courts held that the retirement provision in the Alimony Reform Act applies “prospectively,” and courts have looked toward the Legislature’s intent in deciding that the Alimony Reform Act does not apply retroactively to alimony orders entered before March, 2012.[4]

In the scenario above, for example, without a “material change of circumstances,” a Massachusetts court may hold that Sally is still required to make the $500 alimony payments to Bob.

If you have any questions about alimony or other domestic relations 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] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Chin v. Merriot, 470 Mass. 527, 528 (2015)

[4] Rodman v. Rodman, 470 Mass. 539, 545-546 (2015)

Open Adoption Agreements and Enforceability: New Case Law

In a recent case, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.

In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. She had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.

The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.

Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2

In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.

In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.

At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare.

The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.

The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3

The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.

“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”

 

1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).

2 Id., at 4.

3 Id., at 8.