Wednesday, February 15, 2017

The New Massachusetts Standing Order on Parent Coordination: An Overview

Guest Post by Tony Pelusi*

Well it has finally come to be; earlier this month the Massachusetts Probate and Family Court issued Standing Order 1-17 setting forth the qualifications, standards of practice, and scope of authority for Massachusetts Parenting Coordinators (PC).  For the first time in the history of the Commonwealth this rule informs clients, attorneys, and judges what is necessary to avail themselves of the multitude of benefits of the PC process provides. Those who wish to access the full text of rule directly may click here.  What follows is a summary of the salient provisions for practitioners and parents.

First, Qualifications & Training:

For starters, a PC must be a licensed, experienced, and specially trained lawyer or mental health professional.   To qualify for appointment as a PC individuals must apply to the Court and be approved, demonstrating that they have completed at least

  • 30 hours of mediation training, 
  • 6 hours of training in intimate partner abuse and family violence, and
  • 35 hours of accredited specialty training on matters relevant to parenting, conflict resolution, problem solving and communication skills.
They must also carry at least $100,000.00 of professional liability insurance.  Once approved that individual is required to commit to a minimum of 6 hours of continuing education each year. When approved by the court, their name is placed on a list in no more than four counties where judges can appoint and, attorneys and client may choose to engage their services.

Next, the Protocol:

The standing order establishes uniform standards of practice for all parties to follow.  For example, once an individual is selected to serve, the clients, attorneys and PC must enter into a written stipulation that with judicial approval sets forth at least the following:

  • The PC is qualified and on the approved list;
  • There is a written service agreement signed by both parents and the PC;
  • The duties of the PC (including whether the parents agree that the PC shall have binding decision-making authority) are clearly established;
  • The scope of the PC’s authority;
  • The term of appointment – not to exceed two years;
  • The amount or rate of compensation to be paid, how the fees are to be allocated between the parents, and the maximum expenditure of each parent during the term of the engagement; and
  • The appointment is consistent with the best interests of the children.

Before entering the order or incorporating the agreement into a judgement the judge must inquire of the parents and determine that they fully understand the following:
"(i) if incorporated into an order, the agreement cannot be changed by the court without the filing of a motion and a showing of good cause and a showing that such change is in the best interests of the child or children; or  
(ii) if incorporated into a judgment, cannot be modified by the court without the filing of complaint for modification and a showing of a material change in circumstances and a showing that such modification is in the best interests of the child or children; and  
(iii) the parties have the right to access the court so that the court can determine fundamental issues of care and custody and/or parenting time and support, even where the parties have agreed to binding decision-making authority of the parenting coordinator; and  
(iv) the court will not draw any adverse inference if the party does not agree to use a parenting coordinator."
        Appointment of a PC even if the parties don't agree:

        .The standing order also sets forth similar provisions for the appointment of a PC without the agreement of the parties.  Here the court must first determine that the level of conflict between the parents is such that it warrants the appointment of a PC.   In addition to that which is set forth above, the court must also determine that:
        "(i) it is in the best interests of the child or children involved in the parenting plan; and  
        (ii) the parties have failed to successfully implement the parenting plan; or 
        (iii) the level of parental conflict is, or may become, detrimental to the child or children involved in the parenting plan."
        In circumstances such as this the parents have the right to notice and a hearing before any appointment.  And, if the matter is still pending, the appointment will be effective only so long as the matter is pending and will terminate upon entry of a judgement in the action.  Here, the court is also required to make written finding as to why the PC is being appointed, the full contact information for the PC, the duties of the PC,  the term of service of the PC, and how the fees and expenses of the PC are to be allocated between the parents.

        Most notably the rule states:
        "Notwithstanding any other provisions of this standing order, 'a judge may not require the parties to use the services of a parent[ing] coordinator if the order would require one or both parents to pay for the services without his or her consent.' Bower v. Bournay-Bower , 469 Mass. 690 (2014). If neither party agrees to pay to use the services of a parenting coordinator, the court is not permitted to enter an order or judgment requiring the use of a parenting coordinator. (emphasis added)"
        Only after these procedural protections have been met will the appointment become effective.

        The Scope of Authority & Process:

        Standing Order 1-17 also provides an extensive list of duties that the parents may agree are permissible for the PC to perform.  The primary function of every PC is to assist the parents to amicably resolve disputes and reach agreements about the implementation of and compliance with the order and parenting plan.  Some of the particular duties that a PC can perform in furtherance of this responsibility are to make minor changes or clarifications to the existing parenting plan, determinations concerning transitions of children between parents including date, time, place, and means of and responsibilities for transportation, education and day care, tutoring, after school programs, extracurricular and enrichment activities, children’s travel and passport, psychotherapy and mental health care, religious education and observances, and the role and contact with significant others.  PC’s may also support their clients in developing guidelines for appropriate communication between them, suggesting resources to assist parents, and as an objective observer identify and address certain patterns of behavior that negatively impact coparenting.

        Whenever parents come to a facilitated agreement that modifies and existing court order or judgement it is incumbent on the PC to advise them that such agreements are not enforceable unless and until it is submitted to the court for ratification.

        There are also specific duties that all PC’s are prohibited from performing:  PC are not permitted to communicate with the court unless by motion with service on all parties and counsel.  They may not testify as an expert witness, change legal or physical custody in a manner that impacts child support, offer legal advice, representation, therapy or counselling, delegate any portion of their responsibilities, or make binding decisions without the express permission to do so set forth in writing in the stipulation, court order or judgment, and PC service agreement.

        While the author of this article and his clients’ agree otherwise in writing, it is permissible for PC to testify in court as a fact witness if subpoenaed, to produce documents, and file a motion or complaint for the appointment of a GAL to assert or waive a child’s privilege, and/or to request and immediate hearing if a child is perceived to be in imminent physical or emotional danger.  And while not provided in this order most PC service agreements contain a clause that notifies parents’ that the PC reserves the right to report reasonable fears concerning an individual’s safety, child maltreatment and or abuse.

        PC’s are typically permitted access to all non-impounded case records.  This means that the judge must specifically authorize the PC to receive a copy of any GAL reports.  Parents may choose to and cannot be required by their PC to release confidential or privileged information.  PC’s are obligated to hold all information received during an engagement as confidential.  And, all information acquired by the PC during the course of the engagement may be disclosed to either or both parents, subject to the PC’s discretion and the law, and can be used as a basis for any decision.  Parents have the right to authorize the release to the PC all non-confidential or privileged information concerning their children. However, only a GAL appointed by the court can recommend the release of information from the child’s psychotherapist, counsellor, and/or social worker.

        The rule provides that it is an impermissible conflict of interest for a PC to serve in a dual or multiple capacity with their clients; for example, attorney, therapist, GAL, etc.

        In matters where domestic violence is a credible concern the court is obligated to offer parties the opportunity to consult with an attorney or domestic violence advocate of their choosing.  Further the court is prohibited from appointing a PC over the objection of a party in matters where domestic violence is a credible concern.

        How the PC process terminates:

        Next the order sets forth detailed and specific requirements and parameters for the replacement, extension of and/or early termination of a PC’s term of service.  The process is similar except that the standard differs depending on whether or not the matter is pending.  In each instance a parent must file with the court.  In either instance the court must that the requested action is in the best interests of the children.  If the matter is not pending, the court must find that there has been a material change in circumstances; if the matter is pending the court need only find good cause.  When the parents seek to extend the term of the PC they must seek court approval and the extended term is limited to 1 year which may be renewed as needed.   If both parents agree to replace one PC with another, again, their preference must be approved by the court and depending on the status of the action meet the standards set forth above.

        If the PC chooses to resign they must provide written notice sent by first class mail to each parent and all attorneys involved in the matter.  This notice must state the effective date of the resignation which cannot be less than 15 days after the date the notice is mailed.  Then the PC must file a copy of the resignation with the court at least seven days prior to its effective date.  The parents may thereafter agree on a replacement PC the appointment of which must be approved by the court as set forth in the order.

        The scope of duties of the PC may be modified by agreement of the parents in accordance with the procedures outlined above pertaining to extension and or early termination.  And to be enforceable the court must recognize this stipulation as an Order or part of an Agreement.

        *Tony Pelusi, Jr., JD, CPCC is a Boston area Lawyer, parenting coordinator, professional coach and relationship facilitator. He uses his skill and experience to help individuals, couples, families, and cohorts realize their full potential.  Learn more about Tony here.

        Tuesday, February 7, 2017

        Unvested Stock Options may be Income for Alimony Purposes - Ludwig v. Lamee-Ludwig

        In Hoegen v. Hoegen, the Massachusetts Appeals Court addressed whether it was a double dip to include restricted stock unit income in a child support order when those stocks had already been considered in the asset division.  The Appeals Court determined that the income should be included in the calculation, because the child support income definition is broad.  For more on that decision visit: Income: What's In and What's Out when Calculating Child Support?

        In contrast to the child support guidelines, Massachusetts law on alimony specifically excludes income from previously divided assets: "When issuing an order for alimony, the court shall exclude from its income calculation: (1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties under section 34..." MGL c. 208 § 53  This means that the RSUs addressed in the Hoegen case would not be included for alimony calculations.  But what about stock options that were unvested at the time of divorce?

        Are future and unvested stock options included in calculating alimony?

        The Appeals Court addressed this question regarding the inclusion of unvested & future employee stock options for alimony calculations in Ludwig v. Lamee-Ludwig.  The short answer is that they can be included, and it is not a double dip because they were not part of the asset division in the divorce.

        In Ludwig, the trial judge concluded that "it would not constitute double counting if such income were included in determining the husband's alimony obligation to the wife" and that the options should be valued on a date "closest in time to entry of the original divorce judgment."  The husband appealed both issues and the Appeals Court agreed with the trial court.

        It is worth noting that the parties divorce was completed by agreement, leaving only these two issues to the judge's discretion.  They failed to reach agreement on these issues in their divorce agreement thereby leading to this additional litigation and appeal.  This highlights the importance and value of mediation and collaborative approaches, which place self-determination above the risk and expense of court resolution.

        Because of the application of the "time-rule" from the Bacanti case, the unvested options were not included in the asset division by the parties' agreement.  The appeals court noted that this avoids the injustice of a double-dip "because the contested shares were not part of the equitable distribution of assets; by operation of the time rule, they were assigned to and retained by the husband outright."  The husband relied on language in the Bacanti case indicating that unvested options "belong solely to the employee spouse."  However, the appeals court distinguished Bacanti as dealing only with asset division and not alimony obligations.

        The husband also appealed the timing of valuation, which the court chose as the date of the divorce, but the husband argues should have been the time of separation.  The appeals court defers to the discretion of the trial judge on this issue.

        Double Counting in the Dicta

        There is also an important "dicta" in this decision which might concern other payors resorting to litigation.  The Appeals Court noted that "[w]hile disfavored, double counting is not prohibited as a matter of law", thereby opening the door for other recipients to argue that a double dip may be appropriate even beyond the facts in Hoegen or Ludwig.

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