Step-Parent Adoptions

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

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

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

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

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

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

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

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

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

The Best Interest of the Child Standard

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

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

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

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

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

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

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

If you need more information surrounding the best interest of the child standard, child custody, or family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

Video or Phone Testimony in Divorce Cases: New Case Law

Should a party in a family law proceeding, who is unable to testify at trial or a hearing in person, be allowed to testify through the use of video or telephone? This was the issue in a recent case addressed by the Massachusetts Appeals Court.

In Bonaparte v. Devoti, the parties were married in 2005 in Italy. The husband lived in New Jersey, while the wife was an Italian national. In 2006, the wife gave birth to the couple’s son in Italy; she continued to live there, while the husband continued to live in New Jersey but visited his wife and son often. By 2009, the parties moved to Cape Cod, where they lives together in their marital home until 2011, when the wife and child returned to Italy. The wife was responsible for her own expenses and received little help from the husband until 2015, when he began sending her $100-150 per week.

In 2015, the husband filed for divorce. Nine days before the trial, the wife filed a motion seeking permission to testify via telephone or video. She explained that she was unable to enter the United States due to an irregularity with her permanent resident status. She also asserted that the child’s passport was expired and could not be renewed until the husband signed “the appropriate papers with the Italian Consulate.”

The trial judge denied the wife’s requests, stating that she had not properly sought a continuance. The judge entered a divorce judgment which closely resembled the proposed judgment submitted by the husband. The judge declined the wife’s request to deviate upward from the child support guidelines, and instead deviated downward—the judge noted the husband’s travel expenses as the reason.

The wife appealed, claiming that her due process rights were violated, and that denying her the opportunity to testify electronically was an abuse of discretion. The Appeals Court agreed. “It is apparent the judge viewed the wife’s motion to testify by electronic means as untimely, despite that there is no specific time frame for filing such a motion, under rule 30A(k) or otherwise,” the Court explained. “In focusing on audiovisual depositions pursuant to rule 30A, the judge appeared to overlook other available options to facilitate the wife’s participation in the trial, including live testimony via telephone or video, as requested by the wife.”

In doing so, the Court said, the trial judge failed to consider other relevant factors, such as the potential prejudice to the wife, and most importantly, the potential impact on the child’s best interests. “The judge’s findings contain minimal discussion of the child’s needs, despite those needs being a mandatory factor for the judge to consider under G. L. c. 208, § 34. The wife sought to introduce, through testimony, evidence regarding the child’s needs, including the various expenses she regularly incurs in connection with the child’s developmental and learning disabilities.”

Because the wife was not afforded the opportunity to present information regarding the mandatory factors, the Appeals Court held that the matter must be remanded to the trial court. “Here, the risk that the child may be receiving less support than necessary due to the wife’s inability to testify is too great to ignore. In light of the judge’s failure to consider the interests of the wife and the child, we conclude the denial of the wife’s request to testify by electronic means was an abuse of discretion.”

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

Post-Divorce Agreement Without Court Approval: Is It Valid?

It is no secret that, in order for a divorce to be legally binding, court approval and judgment must be rendered. What happens, however, where the former spouses reach a post-divorce agreement between themselves without court approval? Do those types of agreements have any legal effect?

This question was addressed in a recent case by the Massachusetts appeals court. In Smith v. Smith, the court addressed the case of spouses who originally entered into a divorce agreement that set alimony at $650 per week. The agreement also provided that all matters regarding alimony merged into the divorce judgment. Subsequently, the husband reduced the amount of alimony he paid nine separate times, ultimately reducing it to $800 per month. At trial, the judge found that the husband and wife agreed to those reduced rates without filing any complaint for modification. In total, over a four-year period, the husband paid $87,400 less in alimony than what the divorce agreement called for.

The wife filed a complaint for contempt. She also sought the $87,400 in arrearage that she claimed the husband owed to her. The husband, in return, claimed that the wife had agreed to the alimony reductions, and that he made various other payments to cover costs for their emancipated children in exchange. The husband claimed that he otherwise would not have made those payments to the children. At trial, the husband was found not to be in contempt. The trial judge also ordered the parties’ alimony payments to be retroactively modified. The wife appealed.

On appeal, the Court noted that “not every violation of a clear order will constitute contempt, and thus that the requirement to prove “clear disobedience” has teeth.” The Court stated that contempt cases must be judged under the totality of circumstances. In this case, not only did the wife agree to the modified amounts, but “in reliance thereon, the husband had made the payments agreed upon and also had changed his behavior, to his detriment, by assuming “additional financial responsibilities” with respect to the parties’ emancipated children. It was within the judge’s discretion to conclude there was no “clear and undoubted disobedience” on these facts.”

Next, the Appeals Court took up the issue of whether the retroactive modifications should have been ordered by the trial judge. The Court pointed out that it is possible for a party not to be in contempt, yet still owe alimony. “The judge’s analysis and findings in this case were not sufficient to justify the retroactive modification of alimony,” the Court held, because the trial judge failed to address the factors mandated by G. L. c. 208, § 34, such as those dealing with the age of the parties, the length of the marriage, and the parties’ respective income and estates.

In order for an alimony judgment to be modified, those factors must be considered by the judge, the Appeals Court stated—and because they were not so considered here, the retroactive modification should not have taken place. “On remand, the judge should consider and evaluate the factors enumerated in § 34, including whether there has been a “material change in circumstances” with respect to those factors since the divorce judgment entered,” the Court explained. “In this connection the appropriate circumstances for consideration may include postdivorce conduct of the parties such as are present here, where a former spouse made certain statements and the other spouse detrimentally changed position in reliance thereon. Those facts, however, should be considered in the broader context of all the relevant § 34 factors, and any other material postdivorce changes to same. In so ruling, we do not mean to suggest, or to foreclose, any particular outcome after further consideration.”

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

 

The Intersection of Immigration and Family Law

Many natural born citizens in the United States take for granted the ease of navigating the legal system as a United States citizen. This assertion is especially true in comparison to the ease of navigating the legal system for non-naturalized citizens. Many citizens do not understand the significant role that one’s citizenship status plays in the family law context, such as the ability to marry, divorce, obtain custody of children, and obtain financial support from another person. Citizenship carries many benefits within the family law context. There are, however, ways for all people to navigate the legal system to understand family law and the intersection of it with immigration.

The law values the family unit and the protection of children, and family law in particular has the power to affect society and the family unit. Family law also has the potential to encompass other cornerstone issues of law as well, such as family law issues involved with immigration. Given the sensitive nature of this issue–as well as its timeliness–it is important to understand the intersection of family law and immigration law.

Each of the following scenarios includes family law and immigration law issues:

  1. Hovhaness was born in the United States. He met a woman named Agnes who was born in Armenia and arrived to the United States as a teenager. The two had one child together. Years after their son was born, Agnes decides that she wants to return to Armenia to be with her elderly parents. She wants to bring their child. Is she able to? Does Hovhaness have any rights to the custody of the child?
  2. Joshua and Jonathan are a same-sex couple. Only one of them is a citizen of the United States. The couple wants to know whether they can legally marry in the United States. If they marry, would they both be citizens?
  3. A former couple, Bobby and Josie, are divorcing. They are parents to two daughters. Bobby wants to move to another country to live. Is he able to do so? Does he have any child support, alimony, or other obligations?
  4. A mother and her two children are refugees from another country. The husband of the woman and father to the children died. The mother wants to know whether she has any recourse, any way to obtain monetary support from her husband’s estate, located in their native country.
  5. Ximena was born in the United States. Her mother and father immigrated to the United States illegally. With growing concern about her family, Ximena wants to know more about her rights and responsibilities. Is she a citizen? If not, it possible for her to become one? Is there a way to make her parents citizens? Imagine that Ximena also has an older brother, but he was born in Mexico. Is he a citizen?
  6. A young woman lives with a United States citizen, a man. He threatens to report her to authorities if she discloses to anyone about the abuse and violence that he perpetrates against her.
  7. Natalie was born in India. She met her husband in India as well. The couple moved to the United States and became legal citizens. Eventually the couple had two children. One day, Natalie’s husband left for India with their children. Does Natalie have any recourse? Would she be able to get her children back to the United States?
  8. A young man marries a United States citizen woman in order to obtain his permanent residence card.

Many immigrant families need legal support that involves family law and their immigrant status or former immigrant status. These issues affect people of different genders, orientations, religions, nationalities, and backgrounds.

Immigrants may need help in the preparation and filing of petitions for alien relatives, adjustment of status, naturalization, and issues involving deportation or removal. A skilled attorney may be necessary to help an immigrant or the citizen in a familial relationship with an immigrant to find the solution to a problem. Marriage visas, green cards, bonds, DACA assistance, other visas, and other statuses may be tools available to you for your specific family law and immigration issues.

If you have questions or concerns about issues about family law, custody, child support, or domestic relations, you should contact a competent family law lawyer. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to you promptly.

The Lifestyle of the Parents as a Factor in Custody Issues

Consider the following hypotheticals involving parents, children, and the lifestyle of the parents:

  1. A Massachusetts judge must decide whether a parent with a history of drug addiction should have custody over the parent’s two children.
  2. One parent, named Justin, is a collector of vintage and modern guns, knives, and other weapons. The other parent owns no guns in her household.
  3. A mother named Jessica maintains an unhealthy lifestyle, often consuming highly processed foods. She feeds the food to her three children. The medical records of the children reveal that two of the three children are obese. The father of the children wants custody of the children. He argues that he has a balanced relationship with food and exercise and states that he would feed the children nutritious fruit, vegetables, and legumes.
  4. Dennis is a father of two boys and wants custody of his sons. He goes out to nightclubs often and occasionally invites female guests overnight. The mother of the two boys is Diane. She dates on occasion, but never brings a partner around her sons, nor does she return home late in the evening.
  5. Derek enjoys smoking marijuana for recreational purposes. His passion for cannabis consumes much of his time. He argues that he would never smoke in front of his daughters. The mother of the daughters is Josie. She struggles with an addiction to opiate pills, but is in recovery.
  6. Nina and Lindsay are both in their twenties and both appear to be physically in shape. Nina exercises about 4 times per week in the morning when she wakes up at 5:00am. Lindsay never exercises – she appears fit. The former partners each want custody of the parties’ son.
  7. Jack likes to hunt and James does not. Jack hunts animals for sport and has previously brought their son Anton with him to measure the weight of dead animals. Jack takes a photograph of Anton posing with a dead animal hunted by Jack. James is outraged that Anton is exposed to dead animals and that Jack allowed Anton to pose with the dead animal.

When a Massachusetts Probate & Family court judge is tasked with the difficult decision of awarding custody to a parent or parents, the judge may consider several factors. A Massachusetts justice may evaluate the unfitness of a parent. A judge may consider whether either parent has a history of abuse or violence. A judge could also determine the child’s health needs and requirements, the residence of the child’s siblings or other relatives, the child’s preference, each parent’s health, and the lifestyle of the parents, including drug and alcohol addiction.

Even if a child has been living with one parent for some time, the lifestyle of the parents may affect the judge’s decision in awarding custody. Massachusetts judges want to ensure that the needs of children are adequately met under that the care of their parents. Judges want to ensure the best interests of a child. If a court determines that it is in the best interest of the child to re-arrange the child’s legal and physical custody, a judge may do so.

In the examples above, a judge may determine that a parent with a history of drug addiction may or may not be an acceptable option for legal or physical custody, given the lifestyle involved with drug addiction and recovery. With regard to the issue of weapons in a home, a judge may determine that if the items affect the lifestyle of a parent then it may be in the best interest of the child to reside with the parent who does not own guns. A judge may determine that children should be with parents who maintain healthy lifestyles. This may extend to food, exercise, and mental fitness. A judge may determine that a nightclub and party lifestyle or a lifestyle heavily involved in the use of any substance, whether legal or otherwise, may not be in the best interest of children. Finally, a judge may determine that a parent who hunts for sport and takes photographs of children is not the type of lifestyle practice that will benefit children in the future, especially because children who witness the abuse of animals become immune to violence and could then harm people in the future. In all of these examples, the lifestyle of the parents will be a factor considered by the court when making custody decisions.

If you have questions or concerns about issues involving family law, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.

Surrogacy Laws in Massachusetts

Having a child is a monumental moment in many families’ lives. Social media sites such as Pinterest, Instagram or Facebook provide many ideas of how to plan a baby shower or gender reveal, as well as lists of the “Top 10 Newborn Must-Haves.” Couples are inundated with all the information they could ever imagine on these topics—seemingly, the moment they conceive! However, much of this joy is quickly eliminated when a couple discovers that they will have difficulty conceiving and may not even be able to carry a child. This can bring about stress, marital issues, and many questions for doctors.

When a couple discovers that one partner is infertile, or that a woman is unable to conceive or have a healthy pregnancy, a number of options become available. Whether a couple opts for adoption, IVF, or surrogacy, parenthood is still possible for couples in these difficult situations.

The focus of this blog post will be on surrogacy, and specifically, the laws surrounding the process. Hiring a surrogate or gestational carrier is an expensive process. It is also one that can be daunting without the proper planning and legal knowledge. When hiring a surrogate, it is likely that a surrogacy contract will be in place, detailing the legal rights of the surrogate and biological parents. Our experienced family law attorneys suggest that each party specifically identify the rights of both sided prior to the birth in a written agreement. Having a child is an incredibly emotional process, so we encourage our clients to use a surrogacy agency, and to have all the proper legal documentation in place.

In Massachusetts, there are no specific laws that address surrogacy directly. While there are laws that permit artificial insemination (MGL c. 46 s. 4B), and the necessary written consent required for adoption (MGL c. 210 s. 2), there are none that specifically discuss surrogacy, the surrogacy process, or parenting after using a surrogate. However, courts within the Commonwealth of Massachusetts have addressed issues about surrogacy contracts in several cases. As mentioned above, a surrogacy contract outlines the rights of all parties, as well as the pre-birth process.

The seminal case for this issue was R.R. v. M.H. & Another, where the court held that a surrogacy agreement was not enforceable. The court determined that a surrogacy contract was valid if the surrogate mother consented to the surrogacy for at least four days after a child’s birth, and the surrogate did not receive any compensation. Additionally, this case solidified what was necessary for an enforceable surrogacy contract. The court held that the husband of a surrogate mother had to give informed consent prior to insemination. Also, it is necessary that a surrogate mother been a legal adult of 18, with at least one prior successful pregnancy. Each surrogate mother must have a physical and psychological evaluation prior to childbearing, Lastly, it must be confirmed that the “intended mother,” the mother who is deemed the biological parent, has a medical condition or health issue which would prevent them from carrying the child themselves.

Another important case regarding the Commonwealth and surrogacy is Culliton v. Beth Israel Deaconess. That case discussed birth certificates of children born by a surrogate or gestational carrier. The court held that biological parents of a child born by a surrogate or gestational carrier could be on a newborn’s birth certificate. The court further explains that in order for biological parents to appear on the certificate, both parents must be biological, and the surrogate must consent to the birth certificate. Additionally, if any party or hospital where the child was born contests this, the names cannot be on the certificate.

Culliton is very important, because it allows expectant parents to have immediate responsibility of their child, even if the mother was not the carrier throughout the nine months of pregnancy. This ruling allows biological parents to assume parental responsibility as soon as possible, and to avoid any potential legal issues with a surrogate or gestational carrier.

Lastly, even if you are not from Massachusetts, it is important to know that the rulings in these cases create jurisdiction if a child is born in Massachusetts. For example, if your surrogate gives birth in a Massachusetts hospital, Massachusetts law does control.

If you need more information about surrogacy parenting law or family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form, and one of our experienced family law attorneys will respond to your phone call or submission promptly.

Grandparent Visitation Rights: New Case Law

Issues of grandparents’ rights to visitation with their grandchildren always hinge on the best interests of the child standard: that is, the Massachusetts Probate and Family Courts will order grandparent visitation only where it is in the best interests of the child to do so. Grandparents may petition the Court for visitation rights, and they must prove that the standard is met in order to be awarded visitation.

What happens when a grandparent files an incomplete petition for visitation? The Massachusetts Appeals Court recently decided this issue in the case of Martinez v. Martinez-Cintron.

In that case, the minor child’s parents divorced when the child was about six months old, and the mother was awarded sole legal and physical custody. The father was awarded supervised visitation rights.

The paternal grandmother (father’s mother) filed a petition for grandparent visitation, which was accompanied by a handwritten affidavit. In that petition, the grandmother noted that although she did not have an established relationship with the child, it was in the child’s best interests for such a relationship to exist. The grandmother offered no supporting evidence for her claims that visitation should be granted.

The mother initially did not oppose the grandmother’s request, but later filed to amend her Answer and sought to dismiss the grandmother’s claims. At trial, the judge reasoned that dismissal of the grandmother’s claim was not warranted, and noted that the court would allow the grandmother “the opportunity to produce evidence that circumstances are severe enough to warrant a court’s review of the parent’s decision to deny visitation.”

The mother of the child filed an interlocutory appeal. The Appeals Court reversed, holding that a grandparent’s petition for visitation must be dismissed when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm.

The Appeals Court looked to the case of Blixt v. Blixt, a Massachusetts Supreme Judicial Court case which set forth the pleading requirements for grandparents’ petitions for visitation rights. “We consider the pleading requirements presented in Blixt to be clear: ‘any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief[,]’” the Court noted. Because those pleading requirements were not met here, the trial court was required to dismiss the grandmother’s petition.

“While we are sympathetic to the grandmother’s efforts to establish a relationship with her grandchild, we are similarly mindful that, absent a showing to the contrary, we presume a fit parent will act in her child’s best interest,” the Court stated. “Absent some extreme circumstance, the proper consideration is whether the grandmother made adequate factual allegations to plausibly suggest, beyond mere speculation, ‘that visitation between grandparent and child is . . . necessary to protect the child from significant harm.’… The grandmother’s affidavit in no way indicated that a failure to order visitation would subject the child to any harm, much less significant harm.”

If you have any questions about visitation rights or other domestic relations issues, call our offices to schedule a free consultation. One of our experienced family law attorneys will return your call as soon as possible.

Uncontested Divorce: The Process in Massachusetts

In some cases, an uncontested divorce may be the most cost-effective and efficient option.

Mike and Barbara have been married for nine years. After meeting in college, they were married when Mike was nineteen-years old and Barbara was twenty-years old. They now realize that they both married too young and probably should never have married each other—their relationship has turned into more of a friendship, and they both want an amicable and uncontested divorce. Mike and Barbara do not have children, and both work as teachers in the public school district in the community in which they live. What is their best option for a divorce in Massachusetts?

In Massachusetts, an uncontested divorce means both parties are in alignment with the major issues that often appear in a contested divorce. These typical topics where issues may be present include topics that involve property, alimony, child custody, child support, and more. If the major issues regarding these topics do not exist, both parties may begin the divorce process together. To obtain a divorce in Massachusetts, the first step is to determine that the parties live in Massachusetts. Assuming that Mike and Barbara mentioned above are able to meet the residency requirement for a Massachusetts divorce, then they will be able to divorce in the Commonwealth.

The next step in a divorce is to draft a separation agreement. A separation agreement defines the way that the couple will divide property, handle alimony, structure the child custody arrangement, and determine child support. When a divorce is uncontested, this means that both parties have no qualms or concerns about these topics in the divorce. Therefore, the parties may proceed forward by including their separation agreement into the filing for the divorce. The separation agreement must be signed and notarized both parties. Mike and Barbara can determine the way that they want to divide their property. They can define the amount of alimony that they wish to establish. If they had children, they can determine who has custody, how they will share custody, and the manner in which they wish to raise their children. Mike and Barbara will attach their agreement to the filing for their uncontested divorce.

Prior to the hearing for the divorce, Mike and Barbara can also file a joint petition to the Probate and Family Court. Typically, in Massachusetts, one party in a divorce who wishes to divorce the other must file a petition with the court to provide the other party of the divorce. The party filing the petition then waits for the spouse to respond to the petition. In an uncontested divorce, however, the parties can complete the petition together. They must complete several statements in support of their petition, such as financial statements. Once this step is complete, the parties must file the documents with the probate and family court in the Massachusetts county where either party resides. If Mike and Barbara complete the joint petition together, they can include the joint petition with the separation that they file. They can state that they had an irretrievable breakdown of marriage as the reason for their divorce. There is no fault to their divorce – they simply wanted to end it together.

Next, once the documents are completed and filed by the parties, the Massachusetts Probate and Family Court reviews the separation agreement and joint petition that are filed with the court. The judge schedules a hearing, usually rather quickly, or approximately within 30 days. During the hearing, the judge confirms that both parties agree to what is included within the filing. The judge also reviews the separation agreement to ensure that the agreement is fair to the parties. If the judge determines that the agreement is not fair to the parties or the children of the parties, the judge may decide that both parties must modify their agreement to make it fair or equitable. If the parties do not agree, then the divorce is not granted. If the parties agree to the modified provisions, then the separation agreement becomes binding. If the agreement is binding, then divorce is granted a few months after the judgment.

Even if you have an agreeable relationship with your spouse or partner, it is important that you find an attorney with the knowledge and experience to protect you, your family, and your assets. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Guardianship of a Minor

Under what circumstances is there an issue with becoming a guardian of a minor under Massachusetts family law?

Consider the following scenario: Ten-year old Rebecca and her seven-year old brother Leon live with their mother, Jodi. Rebecca and Leon were always close to their father. Unfortunately, their father recently passed away from a long-term medical condition. One evening, Jodi, a nurse, was driving home from a long shift when suddenly a driver speeding in the wrong direction hit her vehicle. After the crash, Jodi was immediately transported to the hospital and has been admitted since the accident. The physicians are unsure whether she will emerge from her dire medical condition.

On the night of the accident, the friendly neighbor watching Rebecca and Leon became concerned when Jodi did not return from her shift. The neighbor brought Rebecca and Leon to school the following day. Upon learning that Jodi had been severely injured, the neighbor informed the children’s school of Jodi’s condition. Knowing that the children have no other relatives except for an aunt studying in India, the neighbor wants to know more about the children. Who will take care of them? Who will protect them? What will happen to them if Jodi does not leave the hospital or leaves but is unable to care for them?

Massachusetts wants its minors to be cared for and protected. The courts recognize that there may be instances where a parent cannot make decisions on behalf of his or her children. In these circumstances, Massachusetts courts may appoint a legal guardian to make decisions on behalf of another person, known as a ward. A ward is unable to make the necessary legal decisions that a guardian or adult is capable of making on behalf of a child or ward.

As with custody decisions, the best interests of the child are paramount. Courts want guardians who consider the best interests of the minor in mind. Guardians may be chosen by the ward. They may be a relative. Guardians may also be someone familiar with the ward. A guardian may be a wise alternative to an adoption, especially if a parent is alive but is unable to care for the minor.

Guardians of minors take care of the well-being of the minor. They may provide a residence for the child to attend school. Guardians may make other legal decisions on behalf of the minor. In the aforementioned example, the neighbor may make a good choice for a guardian, especially because the neighbor would minimize any disruption to the children’s school life. The children could continue to attend the same school and live in the same neighborhood or even within their house, provided that the guardian ensures for their protection.

Guardians are not required to pay for all of the children’s needs from the guardian’s personal funds. Rather, the guardian may receive money due to the care and support of the children. The guardian must maintain a proper accounting of funds that are used for the children. Any excess funds must be used to support the minor. The guardian must care for the minor’s property. Additionally, the guardian must ensure that minors are educated. If a minor has health needs, the guardian must provide for the health of the minor.

The role of the guardian may be terminated for several reasons. One such reason is if the minor reaches the age of majority. The court could determine that the ward still needs a guardian even after the age of majority is reached by the ward. Also, the guardianship may end if the ward marries. Further, the guardianship may end if the guardian did not properly perform his or her duties as a guardian to the ward.

In the example discussed above, the neighbor could petition to be a guardian for the children. The wishes of each child will be considered in any decision to make the neighbor a guardian. To become a guardian, the neighbor could seek an attorney who could file a petition for appointment of guardianship. During a hearing, the court will want to know about the assets of each child, if any exist. If Jodi has any capacity, she could consent to the guardianship appointment. If she does not, the decision could be made without her consent. The guardianship does not terminate Jodi’s parental rights.

Massachusetts wants its children to be cared for and protected by a competent legal guardian. If you have any questions about divorce, family law, child law, guardianships, or more, please contact our skilled and experienced attorneys. You may schedule a free consultation with a knowledgeable family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.