Wednesday, January 27, 2016

Income: What's In and What's Out when Calculating Child Support?

In Massachusetts, the Child Support Guidelines define the income that can be used when calculating child support.  The list is exhaustive and as a starting point almost all income is considered with very few exceptions (both for the payor and recipient).   We've created this handy tool for reference when trying to remember this guideline:

What's In: 

In a recent case, Hoegen v. Hoegen, the Massachusetts Appeals Court indicated that even income from Restricted Stock Units that may have been waived in a property division should be included in the child support determination.  Here are some of the blog posts that beat us to an in depth look at that case:

The Appeals Court in the Hoegen case noted that even though RSUs are not included in the sources of income list, the catch-all at the end of the list is expansive: "any other form of income or compensation not specifically itemized above."  It's therefore, an easier question to ask what is NOT included in income when calculating child support in Massachusetts, because that's a pretty short list:

What's Out:

1.  The Guidelines specifically exclude mean-tested public assistance programs, such as SSDI and food-stamps; and

2. The Guidelines allow the court to exclude income from overtime or secondary job, but only after considering specific factors; and

3. Child Support received for the benefit of children from another relationship is generally excluded as a source of income as well.

What Else Matters:

Defining the income for calculating child support is only the first step.  There is a child support formula worksheet and guidelines that help determine how the formula applies in each case.  In many cases, even if income is included, it may not be obvious how much child support should result from that additional income.  For example, when the household income of the parties exceeds $250,000 there is discretion with the court on how to handle the excess income.  

Guardianship - Who is a Legal Parent? Part 10

A Guardian is a person appointed by the court to make non-financial decisions for another person, such as personal welfare, medical, housing and educational decisions, in the same way that a parent can for their minor child. Guardians may be appointed for minor children, via Guardianship of a Minor, and for incapacitated persons, via Guardianship of an Incapacitated Person.

In either case, this is a guardianship for protection of the person only. In Massachusetts, Guardians do not have any power over the financial or business affairs of the Respondent. In order to protect the proper or business affairs of a respondent a Conservator is needed.

Guardians and Conservators do not have the same legal rights and obligations as other legally recognized parental roles, but similar to de facto parents they may have some of the same rights.

A Petition for Guardianship is essentially a request for a permanent guardianship. Permanent here is not the same as its usual definition, because a permanent guardianship does not mean that it exists forever. A permanent guardianship simply means that the Guardianship case has gone to Judgment and no further court hearings will occur unless there is a change in circumstances. This is different from a Temporary Guardianship which requires returning to court at least every 90 days.

However, unless the guardian adopts a minor, the biological or legal parent may still have the ability to request a termination of the guardianship when circumstances change.  Therefore, a permanent guardianship is never actually permanent in the same way that an adoption is.  To learn more about adoption visit our previous post.  To learn more about guardianship click here.

Previous Post: Grandparent Visitation Rights v. De Facto Parents - Who is a Legal Parent: Part 9

Thursday, January 21, 2016

Grandparent Visitation Rights v. De Facto Parents - Who is a Legal Parent? Part 9

Our last post discussed the de facto parent standards in Massachusetts.  Grandparent visitation rights in Massachusetts are similar in some ways to de facto parent rights but also different.  They are similar in that the "best interest of the child" is supposed to be the highest priority in the court's determination.  However, there are many differences between these two types of parenting rights:

While de facto parenting rights are created by the equity powers of the court, there is a grandparent visitation statute in Massachusetts (MGL c.119, s.39D).  The statute applies specifically to children living in a separated parent household, which distinction was found to be constitutional by the Massachusetts Supreme Judicial Court in Blixt v. Blixt.   In addition, the statute requires a "written finding that such visitation rights would be in the best interest of the said minor child" and the statute discusses visitation only, not custody.

Blixt and other cases have severely limited the scope of the statute by requiring verified specific allegations by a grandparent regarding the significant harm that a child will experience if they're not granted visitation.  The legal parent's decision is otherwise given "presumptive validity."

Given the recent de facto parent case allowing joint custody, de facto parent status can be more expansive than grandparent visitation rights under the statute.  In fact, in a case where the grandparent had lived with the child a grandparent may actually be better off seeking de facto parent status instead of grandparent visitation because the statute limits the discussion of grandparent rights to visitation only.  However, in order to obtain de facto parent status a grandparent would have to  convince the court to extend de facto parent rights because the definition in E.N.O. v. L.L.M. limited de facto parents to "one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family.”

It certainly seems counter-intuitive that a person who has "no biological relation to the child" could have greater rights than a grandparent even if all of the other factors were similar.  It's hard to know how that issue would be resolved if someone decided to put that issue before a judge and/or an appellate panel.  Instead of taking that chance, though, many families resolve these types of disputes through other methods of resolution such as mediation.  Mediation can be very effective at helping repair relationships and with grandparent visitation disputes there are numerous family relationships at risk, all worth exploring in a non-adversarial setting.  For more information about mediation click here.

Previous Post: De Facto Parents - Who is a Legal Parent: Part 8

Next Post: Guardianship - Who is a Legal Parent? Part 10

Tuesday, January 19, 2016

De Facto Parents - Who is a Legal Parent? Part 8

Our previous posts in this series have all addressed legal parental rights created or enabled by statute.  In some instances, though, the Probate and Family Court has extended legal parentage rights beyond the statutory rights.  The Massachusetts Appeals Court case E.N.O. v. L.L.M. defined a de facto parent as:
“one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.” E.N.O. v. L.L.M. (1999)
The decision of the Appeals Court was not unanimous and the dissent raised questions about the boundaries of the "de facto parent" definition and standard.  However, the majority decision afforded great deference to a trial judge to discern the best interest of the child.  The best interest of the child was ultimately seen by the majority opinion as outweighing the rights of the biological parent.

While there is no specific statutory authority awarding legal rights to a de facto parent, the Appeals Court noted that the Probate Court has authority under their equity powers of General Laws c. 215, § 6.  In E.N.O. v. L.L.M. the lower court used that equity power to award temporary visitation to the de facto parent, and the Appeals Court affirmed.

Because the de facto parent's rights are created by the equity powers of the court and not by statute, the boundaries of the relationship are defined by the court in each individual case.  A de facto parent does not have the same legal rights and obligations as other legally recognized parental roles, but can have some of those rights.  In E.N.O. v. L.L.M. the court addressed visitation rights but did not address custody.

Recently, a trial court extended joint custody rights to a de facto parent in Partanen v. Gallagher.  For an in depth analysis of that case read this article by Brandon Gee.

Critics of the Partanen decision fear that the court is eroding the rights of the legal parent by extending de facto parent rights.  Because these cases are very fact specific it is very difficult to predict how a judge will determine and weigh the best interest of the child.  Sometimes that's good news in a case because it gives the parties a reason to mediate rather than take their chances with a judge and/or an appellate panel, especially when the risk involved is as personal as time with your child.  It is also good reason for parties to define their legal parenting relationships before a dispute arises.  For more information about mediation click here.

Previous Post: Three's Company - Who is a Legal Parent: Part 7

Next Post: Grandparent Visitation Rights v. De Facto Parents - Who is a Legal Parent? Part 9

Wednesday, January 13, 2016

Three's Company - Who is a Legal Parent? Part 7

Post by Julie Tolek.  Julie is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Three's Company: Three Parent Adoptions

When most people think of legal parenthood, they probably think of it as a single or joint endeavor with another person. An often overlooked but equally legal option is to have more than two legal parents. In situations in which there are more than two people who would like to care for a child and have legal parental rights, a three parent adoption can accomplish this and bring together three legal parents to create a larger loving and supportive family setup.

In Massachusetts, there are a several cases involving three parent adoptions, most of which have been handled by Joyce Kauffman, an attorney widely recognized for her work in assisted reproduction, adoption and the rights and needs of lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals and families.

In a three parent adoption, all three parties are the legal parents of a child.

Let's take a look at an example. Sue and Lisa are a married couple who would like to have a baby. They ask their long time friend Tony to be the sperm donor for Sue, so she can get pregnant and carry the baby. The natural or biological parents of the resulting child would be Sue and Tony, and thus it would typically be Sue and Tony who would have legal rights in raising the child. However there are a few other options.

First, Tony could give up his legal rights to be the child's parent. After he gives up his rights, Lisa could file a petition for a second parent adoption where she would adopt the child, with Sue’s consent of course, and Sue and Lisa would both be the legal parents of the child. This is usually the typical family setup that comes to mind with a second parent adoption and a sperm donor, especially if the sperm donor is unknown (which is different from our example here, where Tony is a friend who is a donor).

Typically a child born into a marriage is presumed to be a child of that marriage and both spouses’ names will go onto the birth certificate. In Massachusetts the two spouses’ names would be on the child’s birth certificate. However, it is important to also keep in mind that the ever changing landscape of marriage, even with the recent US Supreme Court decisions, is one where same sex parents cannot be too thorough in protecting their rights as parents and as a family unit. Read our previous post for more information on co-parent adoption.

Back to our family example with Sue and Lisa. Three parent adoption is also an option for Sue, Lisa, and Tony to consider. If Tony wants to stay involved in the child’s life, or has already been involved as the child grows up, he does not have to relinquish his legal parenting rights. In this case, where Sue, Lisa, AND Tony want to parent the child, Lisa could again petition for a third parent adoption without Tony having to relinquish his rights as a father.

While there is no statute specifically naming three parent adoptions in Massachusetts, there is also nothing preventing three parent adoptions. Cases in Massachusetts from the 1940s support three parent adoptions, in that any “person” can adopt a child, citing no limitation on how many persons this might include (Petition of Curran, 314 Mass. 91 (1943)) and that the only real question is whether the best interests of the child would be served by the adoption. (Merrill v. Berlin, 316 Mass. 87 (1944)).

In a family situation where there are more than two loving, involved parents of a child, a three parent adoption could be a great option to ensure that all three parties establish their legal parental rights and make it easier to actually be an intact family without worrying about future legal issues regarding any of the parents’ rights.

Previous Post: Co-Parent Adoption - Who is a Legal Parent? Part 6

Next Post: De Facto Parents - Who is a Legal Parent: Part 8

Monday, January 11, 2016

Co-Parent Adoption - Who is a Legal Parent? Part 6

Guest Post by Joyce Kauffman and Patience Crozier both of Kauffman Crozier LLP.  In addition to an extensive divorce and traditional family law practice, Joyce's practice focuses on issues impacting the LGBTQ community.  Patience is a principal of Kauffman Crozier LLP who focuses on all areas of family law, particularly adoption, divorce, dissolution, prenuptial agreements, domestic partnership agreements, assisted reproductive technology, paternity and guardianship.

Co-Parent Adoption

In 1993, the SJC determined that same-sex couples can jointly adopt children in Massachusetts.  Adoption of Tammy.  Since then, thousands of children have been adopted by the adults raising them and enjoy the security that legal parentage brings.  Ten years after Tammy, in another groundbreaking decision, the SJC determined that same-sex couples have the right to marry in Massachusetts. Goodridge.  When married same-sex couples give birth to their children, Massachusetts will recognize both spouses as legal parents because there is a legal presumption that a woman who gives birth and her spouse are the legal parents.  There is also a statute, G.L. c. 46, §4B, that states “any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”  The SJC determined that G.L. c. 46, §4B applies to same-sex couples in Hunter v. Rose, but Probate and Family Courts around the Commonwealth still applied the statute inconsistently in the adoption context.  In early May, the SJC clarified that, for a child born into a same-sex marriage through assisted reproduction, the child’s lawful parents are the mother and her wife; a donor, whether known or anonymous, is not a lawful parent under this statute and therefore, not entitled to notice of any subsequent adoption.  Adoption of a Minor.  

Whether married or unmarried, same-sex couples should adopt their children to ensure that their relationships as parents are legally recognized universally. For unmarried same-sex couples, this is essential – an adoption is the only way to preserve the primacy of both intended parents and to terminate the parental rights of any other individual (such as a known donor).  The non-biological parent of a child born to an unmarried couple will have NO legal parental rights to the child unless there is an adoption.  The lack of a legal relationship can give rise to serious problems for the child down the road: if the couple ends their adult relationship, the child could lose the parental relationship with the non-biological child; the child’s medical care could be compromised if the non-biological parent is not allowed access; the child could be deprived of social security and other benefits of inheritance if the non-biological parent were to die; and, if the biological parent dies, family members could try to prevent the non-biological parent from continuing the relationship. 

Although married same-sex couples may not feel the same urgency to adopt if their children are born into the marriage, adoption remains critical.  If you had children before you were married, getting married does not create a legal relationship with a non-biological (or non-adoptive) parent.  And, although the Supreme Court has authorized same-sex marriage throughout the United States, there remains a great deal of concern that not all jurisdictions will respect the presumption of parentage we enjoy in Massachusetts.  If you travel or move outside of Massachusetts to a more hostile state or country, your relationship to your children may very well be challenged.

If you do not have a legal relationship to your child or the legal relationship you have is not respected, you will be unable to act on the child’s behalf and, if your adult relationship ends when you are residing in a hostile state, you may face a custody battle in which the biological parent challenges your relationship with the child.  Adoption is the only way to ensure that your child’s legal parentage is secure and unassailable.

Adoption of a Minor, in a unanimous decision, provided a victory for all Massachusetts families.  The SJC provides an analysis of assisted reproduction and parentage in the marital context that will ensure uniformity in our courts and greater stability for children, and confirms that married couples using a known donor and ART do not need to provide notice to a donor – known or unknown – of a subsequent adoption.  In so doing, the SJC has made the adoption process for same-sex married couples clearer and more streamlined, and has secured the parentage of all children born into a marriage through assisted reproduction.  There is a great diversity of families in the Commonwealth, and we are lucky that our SJC recognizes and protects that diversity. 
© Kauffman Crozier LLP

Wednesday, January 6, 2016

The Worst Mistake People Make when Negotiating a Prenuptial Agreement

Prenuptial and Postnuptial Agreements can be strong and useful planning tools that help couples plan their lives together.  Just like a properly done estate plan, a prenup can protect a families' most valuable assets and reduce tensions by setting out a simple outline for the future. When prenuptial and postnuptial agreements are created collaboratively families are strengthened because everyone has a voice and buy-in to a clear plan for their family.

However, many engaged couples don't hire collaboratively trained attorneys when negotiating a prenup because they haven't heard of collaborative law or they rely on a recommended lawyer without doing any research of their own.  Doing a little research before hiring an attorney is critical because the worst mistake you can make when negotiating a prenup is to hire an attorney who only knows litigation.  Litigation is an adversarial process that encourages people to withhold information unless directly requested.  Litigation discourages discussions between the parties because everything you say can and will be used against you in court.  In short, litigation hurts relationships.

The worst mistake you can make 
is hiring an attorney who only knows 

Most litigation cases settle, so attorneys who know litigation also know how to negotiate, but if they have not taken collaborative law or mediation training it is unlikely they have the skills necessary for relationship-building negotiation.  Negotiating a prenuptial or postnuptial agreement is a balance between representing the interests of your client while working towards a common goal: a healthy marriage.  Litigation negotiation, in contrast, more often focuses on leverage and positions.  In collaborative law, attorneys are trained to work as a team to accomplish the mutual and separate goals of the clients.  Collaborative law training is, therefore, perfectly suited to the balance necessary for constructive prenup negotiations.

Mediation can also be a helpful forum for negotiating a prenup in an environment that is non-adversarial and encourages discussion.  When creating a prenup or postnup it is critical that both parties be represented but that representation can take place during a mediation or a more traditional negotiation process.  Either way, the training of the attorneys involved will be critical in determining how successful the negotiations are at finding a balance that fosters a healthy marital relationship.  The alternative has the potential to doom a relationship from the start.

The Massachusetts Collaborative Law Council is hosting an upcoming training on February 12 in Woburn on creating prenuptial and partnership agreements using the collaborative law process: Prenups and Partnerships:  Collaborating for Love and Money.

Click here for more information about prenuptial and postnuptial agreements or about collaborative law.

Tuesday, January 5, 2016

Adoption - Who is a Legal Parent? Part 5

Post by Julie Tolek.  Julie is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.


Adoption is the process by which one person becomes a parent by legally agreeing to care for another person’s biological child and to raise the child as his or her own biological child.  The adoptive parent acquires the legal rights and obligations of parentage including the legal rights to make decision about every aspect of the child's health and happiness.

The Adoption Process in Massachusetts

In Massachusetts, private adoption between individuals is not permitted without the involvement of either the Department of Children and Families (DCF) or an adoption agency. DCF is the state agency in charge of protecting children from bad circumstances such as abuse and neglect. A child’s birth parents may voluntarily sign away their parental rights with regards to a child, or DCF may petition the court to terminate the parents’ rights to voluntarily consent to an adoption.

There are two ways the process of adoption usually begins. First, an adoption agency or DCF will approve a potential adoptive family for adoption. DCF will then place the child with the family and do a home study, which means that the agency will keep tabs on how the child is doing in the new home.  The second way an adoption can begin is without the initial intent to adopt.  In these cases a person who is acting as the caretaker for a child, such as a guardian or foster parent, later decides to adopt the child.  In this case the person wishing to adopt can file a petition with the court.

Requirements for Adoption of Minors in Massachusetts:

In order to adopt a child under fourteen years old in Massachusetts, you must meet one of the following requirements:
  • the child was placed with you by DCF or another agency for the purpose of starting the adoption process;
  • DCF or an agency has approved the adoption in writing;
  • you are related to the child by blood;
  • you are a step-parent of the child;
  • you were named in a will as guardian or adoptive parent by the child’s deceased parent(s); or
  • you are part of an unmarried couple, either same-sex or opposite sex, one of whom is already the legal parent of the child through adoption or birth, as the biological parent.
Surrendering Existing Parental Rights:

In most cases, when a child is under the age of twelve, the lawful parents or surviving parents of the child must give consent for the child’s adoptions. The written consent is called a “surrender” and needs to be in a specific form, signed before a notary and two witnesses. In cases of adoption of a newborn baby, there is a four day waiting period before the lawful parents can sign a surrender form (Anyone signing a surrender of parental rights to a child should consult a lawyer to make sure he or she understands the gravity of the meaning of signing the surrender form.)

If for some reason consent is not available, the court may issue a citation. This may lead to the adoption being a contested adoption, which means that the then legal parents do not agree and the court has to decide if their parental rights should be terminated.

The Home Study:

In most adoptions, DCF or the adoption agency will require an investigation into the home life of the child. In some circumstances such as same sex, step parent, or co parent adoption, this home-study may be waived by the court.   DCF is an authorized agency to conduct the home study, or a private agency might also be used, but keep in mind that the fees to do so might vary.

After the court grants the adoption, the petitioner(s) become the legal parent(s) of the child.  Adoptions are considered the happiest moments to take place in the Probate and Family Courts, bringing families together in a place where so many other families experience conflict.

Click here for more information about adoption.
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