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.

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.

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.

Open Adoption Agreements and Enforceability: New Case Law

In a recent case, of interest to adoption attorneys and parties alike, 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. As family law lawyers, it’s not uncommon to see substance abuse and mental health issues transcend from biological parents to adoptive children. This particular adoptive child 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  This guidance is instructive to an adoption attorney considering the route of open adoption for his or her client.

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. Experienced adoption attorneys would clearly have an valid argument on either side of that issue.

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.

Parents Have Standing to Attend Post-Termination Hearing on Visitation Rights

Will a biological parent whose parental rights have been terminated have standing to participate in a post-termination hearing regarding visitation rights?

Yes, according to a recent decision by the Massachusetts Appeals Court. In Adoption of Zak, the biological mother and father of three children (two, in the case of the father) were stripped of their parental rights after the trial judge found that the children had been profoundly affected by domestic violence. [1]During the same trial, the judge also decided a matter of post-termination visitation—in other words, whether the parents would be entitled to visit with the children even thought their parental rights had been terminated. On appeal, the Court affirmed termination of parental rights, but the matter regarding post-termination visits was remanded back to the Juvenile Court.

So, a new hearing was held in the trial court regarding the post-termination visitation issue. The problem? The parents were not notified of this new hearing, and did not participate. The parents appealed, claiming they had the right to be present. The Appeals Court agreed.

The Court quoted another case to say that “[w]here orders involving termination, placement, and visitation are issued as part of the same adjudication of termination proceeding, a parent has standing to press on appeal any challenge that he or she has not expressly waived to that adjudication[.]” [2]Although the hearing in question here was on remand, and not on appeal, the same applied, as the trial judge’s consideration of evidence at the remand hearing served as a continuation of the proceeding to which the parents were originally parties. Therefore, the Appeals Court held, the parents had standing to be present at the hearing.

If you have any questions about custody, support, or visitation 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] Adoption of Zak, No. 16-P-393 (October 7, 2016-January 9, 2017).

[2] Id., quoting Adoption of Douglas, 473 Mass. 1024, at 1025 (2016).