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99.9% Probability of Paternity - Who is a Legal Parent? Part 4

As discussed in our previous post, in order to include the father's name on the birth certificate he and the mother must sign a Voluntary Acknowledgment of Paternity.  If a mother or father refuses to sign the Voluntary Acknowledgement of Paternity, then paternity can only be established by court action and the mother alone will appear on the birth certificate until there is an order of the court to add the father.

If the father or mother wants to establish paternity of a child in Massachusetts, then either party can file a Complaint to Establish Paternity with the Probate and Family Court.  If the presumed father denies or is unsure that he is the father of the child, the Department of Revenue Child Support Enforcement Division can perform a paternity test if the mother requests DOR services. This usually takes 6-8 weeks, and can be required by the court if the presumed father refuses to participate.  The parties can also obtain a private test which is usually faster but will li…

UnMarried with Children - Who is a Legal Parent? Part 3

Unmarried mothers in Massachusetts are presumed to be the legal and physical custodian of a child without going to court.  Unmarried fathers in Massachusetts are not provided with any legal or physical custody rights without going to court, unless they are added to the Birth Certificate at the time of the child's birth.  This is despite the fact that a child support obligation can begin to accrue upon the birth of the child even if the father is unaware of their existence or not involved in the child's life.

The Birth Certificate is completed with information provided by the mother of the baby. If she is unmarried, then she can request the father's name be included. In order to include the father's name he must sign a Voluntary Acknowledgment of Paternity and then his name will appear on the birth certificate.

Signing a Voluntary Acknowledgement has significant legal ramifications. Even if a father is not the biological father, signing the Voluntary Acknowledgement cou…

Married with Children - Who is a Legal Parent? Part 2

Post by Valerie Qian.  Valerie is an Associate at Skylark Law & Mediation, PC.  Valerie's practice includes family law & divorce representation, mediation, and collaborative divorce.

The Presumption of Legal Parentage to a child born of a Marriage
Is it presumed that a child who is born into a marriage is legally the child of the other spouse of the marriage?  The short answer is yes, regardless of whether the child is biologically related to the other spouse.

The statute governing this question in Massachusetts is Massachusetts General Laws Chapter 209C, Section 6.  Moreover, any child born as a result of artificial insemination with spousal consent is considered to be the legal child of the consenting spouse per G. L. c. 46, § 4B.

Chapter 209C, Section 6 states that a man is presumed to be the father of a child if he is married to the mother of a child at the time that a child is born. He is also presumed to be the father of a child if the child is born within 300 days a…

Who is a Legal Parent? Part 1

Many have tried to frame the debate over same-sex marriage or LGBT rights to be a debate over the changing definition of parents and family.  But the truth is that the definition of family has been constantly changing and evolving and the definition of a parent has always differed from family to family.  Some people are raised by a male and female parent, and others are raised by a grandparent, or one parent, or two female or two male parents.  And many children have more than two people that function as parents and role models.

The definition of biological parent is clear; requiring a male and female genetic component to create a child.  However, defining the parents of a child is more complicated and can involve legal, psychological, ethical and biological components.  A parent might be a gestational parent, a biological parent, a legal parent, or even a parent by their actions, regardless of relationship.  And these definitions can and typically do overlap.

When these roles don&#…

A Holiday Message: Mediation Style

Skylark Law & Mediation, P.C. and Think Pink Law wish health, happiness and peace for all of our clients, colleagues, mentors, followers, visitors, well-wishers and even our distant relations.

Our practices focus on solutions reached as often as possible through peaceful, rather than adversarial, processes.  Even when we expect to disagree, we try to begin all of our conversations recognizing the basic human dignity of the other involved parties.  Through that approach we hope to reduce the conflict in a world that is full of conflicts that seem unsolvable.

When that fails there will always be funny internet videos to cheer us up.


Gotta Find My Purpose: An Update from Skylark and Think Pink Law

One of my favorite NSFW musicals is Avenue Q, where the main character (a puppet / liberal arts graduate), spends most of the story trying to find his purpose in life.  I think it strikes a chord with me because I am constantly re-examining whether my work reflects my values.  When Attorney Trask left Kelsey & Trask, P.C. last year, I was given an opportunity to reconsider how this firm reflected what I, personally, found most important.

Throughout the last year, that self-reflection has resulted in some changes that helped us focus more on our dispute resolution work and resulted in the creation of Skylark Law & Mediation, P.C. - where we help families resolve conflict.
That has become the central theme of our work and with that focus we have removed some practice areas and added others, and we have grown our staff to cover those new practice areas.

First, what have we removed?  Skylark Law & Mediation, P.C. will no longer be handling bankruptcy, criminal defense or fir…

What Divorcing Parents can Learn from #PorteOuverte

On Friday, November 13, 2015 terrorists attacked three locations in Paris, France, killing 129 people, in the most deadly attack on French soil since World War II.  I recently tried to explain to my 6 year old daughter what lessons we can learn from these attacks and from how the world reacted.  Through tears of my own, I explained to her that there are bad people in this world and there are good people.

I told her that unfortunately we can't tell who are the good people and who are the bad people just by looking at them.  But we can tell who are the good people and who are the bad people by what they do.  I explained that bad people had killed good and innocent people without reason because they are controlled by their fear and anger.

But more importantly, I explained how good people reacted.  Despite the natural inclination to protect oneself above all else, many Parisians opened their doors to strangers in the immediate wake of the attacks.  The trending message was called #…

What Questions Should You Ask Before Hiring a Divorce Mediator?

There are numerous articles telling you what you should ask a divorce attorney before you hire them and we recently posted our advice on preparing for the attorney-client interview.   As mediators we encourage clients to work with attorneys to make sure that they are fully informed throughout the divorce process, but we also recommend, in most cases, that clients try mediation before having their attorneys negotiate or litigate on their behalf.

We recommend a mediation-first approach because of the many benefits of negotiating on your own behalf with the help of a skilled mediator.  Hiring a mediator, though, can be just as confusing and stressful as hiring a lawyer.  We're hoping this article helps make that process easier:

Finding the Right Mediator for You
Similar to hiring a lawyer you want to make sure that you ask questions about the mediator's practice, cost, and experience, to ensure that your mediator fits your financial circumstances.  Typically more experience mean…

Collaborative Law & Mediation: So Simple a 1st Grader can Do It!

Recently I attended my child's first grade open house.  Among the many details about policy, projects and pick-ups, the principal shared an interesting theme that they are working on this year.  He described the PAWS principle that they teach our children (aptly named for a school with a bear mascot).

PAWS stands for:
Practice empathy, Act responsibly, Work hard, and  Solve problems together
These principles struck me because they are so basic that we often take them for granted.  In Collaborative Law and Mediation we live by the PAWS principles but often struggle to boil them down to so simple of a form.  If first graders can get it, though, we should be able to make it this easy for adults.

As one six year old recently tried to explain to her fighting parents: "Nobody gets along all the time. But disagreeing sometimes is one thing — treating each other poorly is another."  This viral video of a six year old explaining how to be nice to her parents is both adorable and ful…

Today, I Didn't Win - A Collaborative Law Success Story

Everyday someone fails.  Sometimes marriages fail and sometimes parents fail.   Sometimes the courts fail families and sometimes lawyers do.  Sometimes mediation fails to help people reach agreements, and sometimes people fail to help themselves.

But sometimes, we also succeed.  There are success stories in family court, mediation and collaborative sessions that save relationships, and parents who overcome divorce to raise good confident children.  Today was one of those success stories and it's one worth sharing:

Today, I didn't fight for my client.  I didn't beat the opposing party.  I didn't solve the problem triumphantly by myself.

Today, I didn't win.
Instead, the opposing counsel, the collaborative coach and I did something together, as a team.  We helped two parents talk.  That might seem simple and easy, but for some parents, in some situations, it is not.  It took preparation and time, and some failures along the way.  It took a process designed to help …

3 Amazing Facts about the DOR Child Support Enforcement Division

In Massachusetts the Department of Revenue Child Support Enforcement Division (DOR:CSE) provides child support collection services to both payors and recipients of child support.  Three attorneys from DOR:CSE recently spoke at a Boston Bar Association Family Law Section Brown Bag presentation and shared the following amazing facts:

In 2014 the Massachusetts DOR:CSE collected  over $646 million dollars in child support.

DOR:CSE can collect child support in any case where the child support figure is a sum certain and the recipient requests services.  They deduct support directly from the payor's paycheck which reduces the administrative burden of payment on both the payor and recipient.  They also track any arrears which can assist parties in keeping a clear record of child support owed.



Each case at DOR:CSE has an individually assigned case worker  and each case worker has between 1200 and 1900 cases.  

DOR:CSE has a comprehensive website that can provide a lot of information generall…

What Questions Should You Ask Before Hiring an Attorney: a Mediator's Perspective

Experiencing any type of legal dispute is stressful and many people walk into a lawyer's office nervous and anxious about the experience.  In order to reduce that anxiety and ensure that you hire someone who is a good fit for your case, it is important to consider what questions you want to ask and to enter that meeting prepared.

There are numerous articles telling you what you should ask a divorce attorney before you hire them. The typical advice ranges from the obvious (what are their billing rates) to the not-so-obvious (what percentage of their practice is devoted to your type of case).   As a mediator, though, my advice is a little more personal.

Does your lawyer understand your goals?
While it is important to ask questions about the lawyer's practice, cost and experience, it is also very important that any counsel that you hire understands your goals.   The type of lawyer you choose to meet with and hire can have a significant impact on how you view conflict in your case…

A Parent's Guide to Children and Divorce - Infographic

Brady Federal Deflategate Appeal: A Mediator's View

Tom Brady along with the National Football League Player's Association are currently in a federal lawsuit in a U.S. District Court against the National Football League.  The case centers on the appropriate use of power by the NFL commissioner to act as labor arbitrator, but is that really what it is about?

How did the loss of a small amount of air in a few footballs balloon into a federal case?
Attorney James M. Lynch of Stevenson, Lynch & Owens, P.C. recently wrote an excellent post outlining the legal arguments that both sides have, and why, in his opinion, Brady has the stronger case: Brady Federal Deflategate Appeal: A Lawyer’s View.   As a lawyer, I found the analysis intriguing, but as a mediator, I wonder if the legal analysis of this case misses the point.

Tom Brady isn't in court to stand up for labor unions.  The fans and the public don't care that much about whether Roger Goodell's decision was consistent with the "practices of industry" or th…

The Future of 'The Night Circus' is a Marital Asset

In Massachusetts, the asset division statute (M.G.L. c. 208 s 34), grants the court significant discretion and authority to assign assets owned by one spouse to the other in a divorce case in order to reach an "equitable" division.  The trial court has broad discretion as to the treatment of all types of assets owned by either spouse, but before the court can determine an equitable division, the assets themselves must first be defined and valued.  With many assets the value is straightforward, and there are accepted ways of valuing real estate, personal property and business interests.  But some assets, such as stock options, are very difficult to value reliably.

What happens when the value of a marital asset is uncertain?

The Appeals Court, in Canisius v. Morgenstern, addressed this question in regards to potential royalties and movie rights for the author of The Night Circus.  The trial court Judge had excluded future income from the sale of the wife's book from the ass…

Collaborative Kayaking

Collaborative Law is a practice that requires finding the right balance in many different ways.  The goal of the Collaborative process is to reach agreements through negotiation and to avoid the expensive and emotional experience of Court.  Clients and their counsel must find a balance between individual advocacy and shared goals in order to reach solutions.  Finding this balance can sometimes be difficult and challenging, but also rewarding.

Kayaking is a great metaphor for collaborative practice, because it also requires balance and work in order to have a rewarding experience.  On Thursday, July 23, 2014 some members of the Massachusetts Collaborative Law Council decided to bring the metaphor to life by joining each other for a summer afternoon of kayaking at Lake Cochituate in Natick.  Here are some pictures from the event:










If you have a dispute, ask yourself if you want professionals handling your case that can't get along?  Choosing one attorney to represent you in a traditi…

How Long is a Marriage? It Depends why you are asking!

The Massachusetts Appeals Court has decided another case interpreting  the Alimony Reform Act, that I will likely refer to as that "length of the marriage" case rather than trying to pronounce the actual name.  In Valaskatgis v. Valaskatgis, the Appeals Court was faced with the question of whether the Alimony Reform Act's definition for "length of the marriage" also applied to property division questions.

Question: Does Length of the Marriage (for Alimony)  =   Length of the Marriage (for Property Division)?
Answer:No.
Why does it matter?

The Alimony Reform Act defines length of the marriage as:
"the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage; provided, however, that the court may increase the length of the marriage if there is evidence that the parties’ economic marital…

Are Divorce Lawyers regularly violating the Civility Guidelines?

At a recent event celebrating the 15th Anniversary of the Massachusetts Collaborative Law Council, one of it's founders, Rita Pollak, spoke about her reasons for joining the Collaborative Law movement.  Among those reasons was a recognition that the practice of family law in the courts was becoming less civil, and more hostile.  This is a sentiment that I have heard echoed by many, and have experienced myself.   Too many of the lawyers who handle family law cases fail to understand the importance of civility, and act without thinking about the true impact of their actions.  In fact, I believe many lawyers think they are acting in their client's best interest when in fact they are modeling bad behavior and bad habits which will harm their clients and their client's family for years after their case is over.

The Massachusetts Bar Association approved Civility Guidelines for Family Law Attorneys in 2006.  These guidelines should be required reading for all family law attorne…

Parenting Time, not Visitation

As of July 15, 2015, the Massachusetts Family Court's website and forms have been updated to use the term "parenting time" in lieu of the outdated term "visitation."  Chief Justice Angela OrdoƱez has made this long overdue change recognizing the national trend away from the pejorative term "visitation", which implies that one parent has less of a role than the other.

This was simply the right thing to do and we applaud the move.

Collaborative Law Training with Justin Kelsey

Currently, four of the attorneys at Skylark Law & Mediation are trained in Collaborative Law, an out-of-court dispute resolution process.  The Collaborative Law process may be used to resolve conflict in all types of matters, including family, business, and probate disputes.  The Collaborative Law training is an excellent opportunity to add valuable skills to your conflict resolution toolbox.

Justin Kelsey, the owner of Skylark Law & Mediation, PC, will be one of the trainers at the upcoming 2015 Introductory Collaborative Training presented by the Massachusetts Collaborative Law Council.

This training meets the standards set forth by the International Academy of Collaborative Professionals (“IACP”), and those completing this training are eligible for membership in the Massachusetts Collaborative Law Council and the IACP.  More importantly, by participating in this training you would immediately become part of a growing, cutting-edge international community of Collaborative La…

Divorce Mediation Training with Justin Kelsey

At Skylark Law & Mediation, PC all of our attorneys and staff are trained mediators.  Even for those who do not mediate, the skills involved in mediation training assist in all forms of conflict resolution and negotiation.  If you are interested in learning more, check out the upcoming Family Law Mediation Workshop 2015 - offered by Massachusetts Continuing Legal Education.

Justin Kelsey, the owner of Skylark Law & Mediation, PC and an MCFM Certified Mediator will be one of the trainers on the first day.

For more information or to register click here.

Top 6 Out-Of-Office E-mail Notices

Getting an out-of-office auto-reply to an e-mail you send can be frustrating, especially when you were hoping for a quick response to your inquiry.  However, they are a necessary evil in a world where everyone expects instant replies to electronic communications, at least for those of us who still intend to take vacations from the office.

I expect that my colleagues or clients will feel some disappointment when they get that immediate reply to their e-mail only to discover it's not a real reply but rather a notice that I won't be available for the next few days.  About two years ago I decided to try and lessen the impact of that disappointment with a little humor.  Judging by the amount of amused responses I received back, below are my top six auto-reply out-of-office messages:

Subject: Out of Office - "Interrupt your Vacation"
I am currently out of the office on vacation.

I know I'm supposed to say that I'll have limited access to email and won't be abl…

SCOTUS rules on Marriage Equality: the tl;dr version

The U.S. Supreme Court legalized same-sex marriage in all 50 states on Friday, June 26, 2015 in Obergefell v. Hodges, a 103 page decision which we read so you don't have to.  You should, but seriously, most of you probably won't.  Many people will just read that headline and know that there has been an important change in the status of legal relationships in the U.S.  Both the majority and dissents agree on one thing, this is a significant and far-reaching decision.

For a good overview of the decision itself and the legal impact, visit our friend's blog over at Finn & Eaton: Obergefell v. Hodges: Supreme Court Rules on Same-Sex Marriage, Part 2.

For now we're posting the tl;dr version of the majority and dissenting opinions:

Here is what each opinion seems to say about the author's view of marriage:

Robert's Dissent:    Marriage is an institution.
Scalia's Dissent:     Marriage limits your expression.
Thomas's Dissent:  Marriage has nothing to do w…

3 Prenup Drafting Tips from the Appeals Court: Pisano v. Pisano

The Appeals Court ruled, in Pisano v. Pisano, on numerous issues involving a bifurcated trial, a prenuptial agreement, temporary alimony and family loans.  The primary issues in the case all could have been prevented by inclusion of clear provisions in the Prenuptial Agreement.  This is not a criticism of the drafters, because in many instances the soon to be married couple don't want to deal with these types of specifics.  However, this case demonstrates the importance of clear and thoughtful decision-making and drafting when creating a Prenuptial Agreement.

1. Trial Judge's determination that the Prenuptial Agreement excludes income derived from separate assets from consideration of alimony - UPHELD.

While the prenup did not explicitly say "income from separate assets is excluded from the calculation of alimony" as clearly as it could have, the appeals court upheld this decision finding that the language of the prenup clearly intended to exclude income from separa…

SJC Case Summary: Sperm Donor is not a Legal Parent entitled to Notice of Adoption

Guest Post by Beth Aarons, a Mediator and Collaboratively trained attorney who is of counsel to Skylark Law & Mediation, PC and who also has her own practice in Newtonville.  Beth is available for consultation on adoptions, like the one discussed below:

In a recent slip opinion Adoption of a Minor, SJC-11797, the Massachusetts Supreme Judicial Court (SJC) determined that a known sperm donor of a child born to a married same-sex couple is not a legal parent of the child who would be entitled to notice of the child’s adoption.

J.S. and V.K., two women legally married to each other, conceived a child through artificial insemination with a known sperm donor.  The child’s birth certificate names J.S. and V.K. as the legal parents and to protect their rights they sought to jointly adopt their son to ensure equal recognition of their parentage outside of Massachusetts.  The Probate and Family Court declined to allow the adoption to proceed absent legal notice to the sperm donor, whose i…

Settling Conflict with the KISS Principle in 5 Simple Steps

There is a design principle in engineering that was made popular by the U.S. Navy in the sixties called "Keep It Simple, Stupid" or KISS for short.  The KISS principle is about valuing simplicity in design in order to make things less likely to break and easier to fix when they do break.  As a fan of this principle, I was very impressed with Rackham Karlsson's recent blog post: Collaborative Divorce in the Simplest Terms Possible in which he does just that, explains Collaborative Divorce as simply as possible.

Rackham's post has inspired me to try and explain the work I do in the simplest terms possible using the KISS principle and the Up-Goer Five Text Editor, a site that forces you to explain an idea using only the 1000 most used words in the English language.

Here is a typical explanation of what I do:
In my work I encourage clients to settle disputes outside of court, whether through collaborative law, mediation, or other other out-of-court processes, by using …

Alimony: You get what you Need!

In Reed v. Reed, a recent unpublished (Rule 1:28) decision, the Appeals Court provided a summary of the current definition of need in Massachusetts.  Alimony is defined in the Alimony Reform Act as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order."  This means that need is one of the three main components of alimony and when it comes to calculating alimony:
Need "is not based on the minimum life necessities of the spouse, but rather is measured by 'the amount necessary to support a spouse in a manner consistent with the marital life-style.'" Reedquoting Zaleski v. Zaleski For general term alimony, the most typically awarded type of alimony, the statute also limits the amount of alimony to "generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being…