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Tuesday, November 30, 2010

Can I Prevent my Ex from Moving Our Children if they Still Live in-State?

As discussed in a previous post, M.G.L. c. 208 Section 30 states that a child who the Massachusetts' probate courts have jurisdiction over shall not be removed from the Commonwealth without consent of both parents or Order of the Court. This statute does not apply to vacations, but rather is intended to prevent the "removal" of children to another state of residence without permission of both parents or the Court's permission.

In a 2003 decision, the Massachusetts Appellate Court expanded this prohibition on removal to include relocation within the Commonwealth if the relocation would "involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." D.C. v. J.S., 58 Mass. App. Ct. 351, 355-356 (2003).

If your ex is threatening to move to another part of the state with your children and it would significantly disrupt your parenting time with the children, then you can ask the Court to prevent this move. If the Court agrees that the move would significantly disrupt your parenting time then the court should apply the same standard as in a case involving a removal out of state. It may be prudent for a parent who wants to move, even within the Commonwealth, to ask the Court's permission if the other parent disagrees. This could prevent costly requirements if the Court disallowed the move afterwards.

Monday, November 29, 2010

What is a Parenting Plan? What is the best Parenting Plan for my children?

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans are necessary when two parents live apart (whether because they were never married, are divorced, getting divorced, or simply choosing to live separate and apart).

Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

The best Parenting Plan for each family will depend on the ages of the children in that family,the schedules of both the parents and the children, the relative parenting abilities of each parent, any special needs of the children, and the family's traditions. Many people have trouble figuring out where to start in creating a parenting plan and in order to assist separate parents, the Massachusetts Courts asked a a Task Force of judges, lawyers, probation officers and mental health professionals to provide Model Parenting Plans. The Plans are available on the Massachusetts Courts website and although not mandatory or presumptive they can be helpful in designing a Parenting Plan that reflects the ages of the children and the relative involvement of each parent. While these schedules may not work for every family, they are instructive as to what many experts believe are the types of schedules most likely to encourage positive child development.

When considering the best Parenting Plan for their family, we encourage our clients to review these Model Parenting Plans as well as the guide: Planning for Shared Parenting: A Guide for Parents Living Apart.

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

Monday, November 15, 2010

Could I be Forced to Pay Child Support for someone else's Child?

Casino Billionaire to pay $100,000 per Month in Child Support for Non-Biological Child: As reported in a recent Boston.com Article, Billionaire Kirk Kerkorian, the major shareholder of MGM Resorts International, has settled with Lisa Bonder Kerkorian, to whom he was married for only 28 days, to pay over $10 million in child support arrears as well as $100,000 in child support per month. Even more shocking than the figures and the short term of the marriage is the fact that Mr. Kerkorian is not the biological father of the child and was purposefully defrauded by the mother who faked a DNA test.

In Massachusetts, a person who is married within 300 days of the birth of the child to the mother is the legal parent of the child even if they are not the biological parent. This is a presumption that can be overcome with a paternity test. However, even if the paternity test proves that the husband is not the biological father, this does not necessarily mean he is not the legal father. Someone who acts like a parent for a period of time long enough for the child to be attached to them as a parent has certain rights and obligations. The best interest of the child require that a "de-facto" parent continue to be involved in their life (i.e. have custody and visitation rights), and in some cases also pay child support.

Even absent a marriage, if a father signs a Voluntary Acknowledgement of Paternity and is added to the Birth Certificate, then they are presumed to be the Father. After one year passes it becomes almost impossible to undo this legal acknowledgement of parentage. In the case of a faked paternity test or other fraud it might be possible to have a Court undo the acknowledgement even after the one year period. However, in many cases, as was the case with Mr. Kerkorian, the father has now been involved in the child's life and would be considered a "de-facto" parent anyway.

Although, California law may be different than Massachusetts law regarding these types of cases, it is still refreshing to see Mr. Kerkorian willing to pay significant child support and take responsibility for a child that is biologically not his. Of course, this reinforces what we've already learned from so many other non-traditional and adoptive families: You don't have be genetically related to a child to be a good parent.

Monday, November 8, 2010

Dramatic Impact of Mediation on Children of Divorce

According to a 12 year study by Dr. Robert E. Emery, Ph.D., a Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia, Mediation can have a dramatic impact on children of divorce and their relationship with a non-residential parent. Dr. Emery summarizes his findings in the recent issue of the Family Mediation Quarterly.

The study used a coin-flip to decide whether high-conflict custody cases would try a short-term (five hour average) mediation. The results of only five hours of mediation were amazing, especially with relation to the children.

Twelve years after the average divorce in America, nonresident parents saw their children weekly in only 11% of cases. In the cases where the parties tried mediation based solely on a coin-flip 28% of nonresident parents saw their children weekly after 12 years. This is a significant difference and the difference is even more significant with reference to telephone contact (weekly telephone contact: national average 18% & mediation average 52%).

To see how these effects extended to other parental involvmenet as well (school, discipline, religous upbringing, etc.) check out the article on the MCFM's website here.

Even in high conflict cases these results suggest that just giving mediation a try can be beneficial to your child's relationship with their parents and therefore beneficial to your child's health. Tough statistics to ignore if you care about your children.

To schedule a 1-Hour Free Mediation Consultation with Kelsey & Trask, P.C. call 508.655.5980 or e-mail us.

Friday, November 5, 2010

The Role of new Technologies in Divorce Cases.

At Kelsey & Trask, P.C. we recognize that the state-of-the-art technology affects not just the positive aspects of our lives but also the negative. For example, constant access to e-mail, facebook, twitter and similar services provides us with both ways to connect and ways to be distracted (as described further in this NPR article about cell phones interfering with marriages).

It is important therefore to make effective use of technology to help you in your divorce case and also to recognize how the use of technology could hurt your case. These new technologies can also be used to help us learn more about the statistics of divorce (as described in this article about the break-up trends displayed in Facebook posts). Below you can find some resources on our blog and website that deal with both the positive and negative impact of technology on divorce.

We have written many times on this site about the many ways in which Facebook, Twitter and other social networking sites are being used in Divorce cases:

- Facebook & Twitter causing Divorces?

- When a Tweet is a Threat

- Protecting your Privacy in a Divorce. Who has access to your mail, e-mail, etc.?

- 5 Worst Divorce Mistakes - Mistake #3: Telling the World your Side of the Story.

- When a Facebook Friend Request is Against the Law

We also use new technologies and social media to assist our clients (and other lawyers) in dealing with and helping to settle divorce cases:

- Waiting in line for the new iPhone? There's no wait (and no cost) to download our Apps!

- Latest iPhone App now available in the App Store: Alimony Calculator

- What is the Stevenson-Kelsey Spousal Support Calculator (now known as The Divorce Spousal Support Calculator)?

- Attorney's Kelsey & Trask on Twitter

- The Kelsey & Trask, P.C. Facebook Fan Page

- The Kelsey & Trask, P.C. Website Resources for Divorce & Mediation

We hope that our clients use these resources to make the divorce experience less traumatic but also take our advice on how to protect themselves when using these resources.

Thursday, November 4, 2010

Is it Possible to have More than Two Parents?

Whether or not everyone approves, it is a fact of life that the "traditional nuclear family" is becoming less the norm. In the practice of family law we are encountering more and more unique family structures; some brought on by the advance of technology (like artificial insemination or surrogate parenthood), some brought on by divorce and re-marriage creating step or second families, and some brought on by the changing laws around gay marriage and adoption.

There are situations in the law in which the Courts have already dealt with the issue of whether a non-biological parent could be a "Parent" as well. For instance, in Massachusetts there is a Grandparent Visitation Statute that provides for visitation for grandparents with their grandchildren if they have been significantly involved in the children's lives. Although this standard is strictly applied by the Courts, a win on a grandparent visitation case is essentially a recognition that a child's grandparent is acting as another parent in some capacity and it would benefit the child to continue that relationship.

Similarly, the Courts in Massachusetts have also recognized "de facto" parents in situations where another person (such as an aunt or uncle or step-parent) has been so involved in a child's upbringing that they have become indispensable in that child's life. The Courts have awarded "de facto" non-biological parents rights of custody or visitation (and sometimes obligations for child support) when it is found that that person has been such a large part of the child's life that it is in that child's best interest to maintain that relationship.

Within this framework, the Court has in the past recognized that third-parties can sometimes be indispensable in the raising of a child. Despite the complications that a third player in the custody/visitation arena can cause, the Courts have recognized in some situations it is more beneficial than cutting that person out of the child's life.

Similarly, this same logic is being applied in expanding how the court views parenting arrangements created by "non-traditional" family structures. As discussed at length in a recent Boston Globe Article, Johnny has two mommies – and four dads, this is becoming more common when lesbian or gay couples involve a third biological parent in the conception of the child.

Also discussed in the article is the opposition by some to the inclusion of any third or non-biological parents in parenting (despite the proven value of quality involvement by step-parents in many families). Of course, much of this opposition is just a thinly veiled opposition to any recognition of gay or lesbian rights as depicted in this news story video posted on the website of colleague Gabriel Cheong. As depicted in this news video and in this article, the law is struggling to catch up with how to categorize these different relationships despite the fact that we already have some precedent in how we deal with "de facto" parents.

In the news video the victim-Mother indicates that she was advised she didn't need to adopt her non-biological child because the law in Vermont recognized her parental rights under her marriage. Since all states don't recognize that marriage, though, it might have been more prudent for her also to adopt the child.

Even for parents in more unusual arrangements that involve three parents, some jurisdictions are now allowing third-parent adoptions.

The takeaway point from this struggle should be that until the law becomes clear in how it treats these relationships documenting your rights and agreements should be clear from the outset. No matter what your family structure is like, if it is "non-traditional" the law might be uncertain in how it treats you or require more "proof" of parental relationship. In order to protect your parental rights you should explore your options when everyone is "getting along".

Wednesday, November 3, 2010

Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?

If your spouse has lived in Massachusetts for one year or can establish that the breakdown of the marriage occurred in Massachusetts (as explained in a previous post) then they can obtain a divorce in Massachusetts. However, they will not be able to obtain personal jurisdiction over you and your property except in specific circumstances. In other words, Massachusetts can dissolve the marriage, but unless the Massachusetts courts can establish personal jurisdiction over you they cannot order you to transfer property that is outside Massachusetts or pay alimony.

Jurisdiction over the Dissolution of the Marriage

The United States Supreme Court in Williams v. North Carolina, 317 U. S. 287 (1942), decided that each State can determine the marital status of any spouse domiciled in that state, even if the other spouse is absent. Williams v. North Carolina, 317 U. S. 287, 298 (1942). In addition, the Court decided that under the Full Faith and Credit Clause that divorce decree must be honored in other states including the state where the other party lives. Id. at 299.

This means that if your spouse meets the requirements to obtain a divorce in Massachusetts then that Divorce Judgment ends your marriage legally in all states.

Jurisdiction over the Person

Having jurisdiction over the marital status of their residents, does not also extend to the property of out of state residents. In order for Massachusetts to have jurisdiction over the division of property outside the Commonwealth, the Massachusetts Court must have jurisdiction over the person of the Defendant. Personal Jurisdiction can be accomplished in a number of ways other than residency but is limited to very specific circumstances. M.G.L. ch. 223A Section 3, commonly referred to as the "long-arm statute" describes these circumstances as follows:

"(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;

(c) causing tortious injury by an act or omission in this commonwealth;

(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;

(e) having an interest in, using or possessing real property in this commonwealth;

(f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;

(g) 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; or

(h) 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."

Under section (g), the determination of what is an "act giving rise to such a claim" has been defined rather broadly in two Massachusetts cases, Miller v. Miller, 448 Mass 320 (2007) and Cherin v. Cherin, 72 Mass. App. Ct. 288 (2008), and can include "an exchange of words between husband and wife" that "leads one or both of them to conclude the marriage is over" or engaging in "a persistent course of conduct, by committing various acts in Massachusetts, which created for the wife the impression that he would soon be moving to Massachusetts to retire with her, even though he secretly had no intention of actually doing so."

If you are concerned about whether or not you have committed any "acts" that might give rise to such a claim you should discuss your case with an attorney with experience in these types of cases.

Jurisdiction over the Person for Custody and Child Support Orders

Although the Court may not have jurisdiction over you for the purpose of ordering alimony or property division, if you have children with your spouse and those children now live in Massachusetts, Massachusetts may have jurisdiction over custody/visitation orders and child support orders.

After children live in Massachusetts for six (6) months, under the current law, Massachusetts obtains jurisdiction over any custody or visitation issues regardless of whether any previous custody orders exist (although the orders would be considered before any changes are made).

If a previous support order exists, Massachusetts may have jurisdiction over that order depending on the circumstances. If no previous support order exists then a Massachusetts Court may obtain personal jurisdiction over a non-resident to make support orders under much more lenient standards than in the long-arm statute above. This jurisdiction can be obtained under the Uniform Interstate Family Support Act (UIFSA) which has broad standards such as personally serving you within the Commonwealth or if you ever resided with the child in the Commonwealth, etc.

If you are concerned about whether or not Massachusetts may have jurisdiction over your case under UIFSA, you should discuss your case with an attorney with experience in these types of cases.

To schedule a one-hour Free consultation with Kelsey & Trask, P.C. click here or call (508) 655-5980.

Tuesday, November 2, 2010

When a Tweet is a Threat

Following up on an earlier blog post discussing how contact through social networking websites, such as Facebook, may be an arrestable offense when there is an existing restraining order in effect, threats posted on social networking websites may also give rise to the issuing of a restraining order. In Arizona, an argument between two college students was escalated when one of the students wrote on his Twitter account that he would "not hesitate to punch [the other student] in the face if I saw him . . . Just sayin." The other student then obtained a restraining order because of the "tweet."

Regardless of whether the "tweet" was a legitimate threat, it is important to realize that writing something of that nature on a social networking website makes it possible that the individual to whom you are referring might read it, and might take it seriously. Be smart. Don't take your arguments to the internet. You are just documenting the "he-said-she-said," which could come back to haunt you.

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