Guest Post by Tony Pelusi * Well it has finally come to be; earlier this month the Massachusetts Probate and Family Court issued Standing Order 1-1 7 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 trai...

The Massachusetts Appeals Court recently provided an overview of the two-part test for deciding if a custodial parent can move out of state with their child  in  Rosenwasser v. Rosenwasser .   The father in Rosenwasser requested the court's permission to move to Florida with the parties' minor child.  The trial court denied his request after applying the two-part test from the Yannas case .  However, the appeals court disagreed with how the trial court applied the test and focused specifically on a change the mother made to her parenting only recently. The appeals court agreed with the trial court that the father met the first prong of the Yannas test because there was a "real advantage" to him moving to Florida, namely decreased expenses and family support.  In addition, the request to move did not appear to be motivated by a desire to deprive the mother of time with the child. The second part of the Yannas test requires the court to determine if the...

UPDATE: With the passage of the Massachusetts Parentage Act, the definitions of legal parentage have been updated by the legislature.  Read this article to learn more:  The Massachusetts Parentage Act by Polly Crozier, Director of Family Advocacy, GLBTQ Legal Advocates & Defenders Original Post: 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 ...

UPDATE: With the passage of the Massachusetts Parentage Act, the definitions of legal parentage have been updated by the legislature.  Read this article to learn more:  The Massachusetts Parentage Act by Polly Crozier, Director of Family Advocacy, GLBTQ Legal Advocates & Defenders Original Post: 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 distincti...

UPDATE: With the passage of the Massachusetts Parentage Act, the definitions of legal parentage have been updated by the legislature.  Read this article to learn more:  The Massachusetts Parentage Act by Polly Crozier, Director of Family Advocacy, GLBTQ Legal Advocates & Defenders Original Post: 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...

Source: BestMastersInCounseling.com

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than  letting a Judge decide your fate . Part 4:  Parent Coordinator:  Do you want help resolving parenting disputes without returning to court? In Part 1 , we discussed how the Appeals Court in Ventrice overturned a lower court's order that required parties to engage in out-of-court mediation prior to filing any further action in the Probate and Family Court.   While Parent...

The Massachusetts Appeals Court published a decision today in a particularly saddening and difficult divorce case in which the lower court awarded custody to a father despite a finding that the father had been physically abusive to the mother.  The job of a trial Judge is not an enviable one and I don't intend to second-guess the decision which included weighing the testimony of two experts and was very fact specific. In reading the full decision it is obvious the court was forced to choose between two extremely undesirable results. The trial court relied on the children's problems with their mother and abuse between them and her in awarding primary custody to the father.  The Appeals Court points out that the GAL and children's therapists could not find any evidence that the father brainwashed or alienated the children from the mother.  However, the court acknowledged that the children witnessed abuse by the father against the mother, and pointed out the harm suffered...

Unrolled Joint (Public Domain Image courtesy of Wikipedia) Medical Marijuana has been legalized in Massachusetts and   possession of one ounce or less, even for "recreational" use, has been decriminalized .  In addition, marijuana for recreational use has been legalized in two states in 2013, and more may be on the way . Traditionally, illegal use of marijuana by a parent could result in DCF involvement and would definitely be a factor considered by a family court if two parents were disputing custody in a divorce or paternity action.  Although many parents did not see "what the big deal was", judges would often test for marijuana use and restrict parenting time for parents that tested positive. Does the national shift towards legalization for both medicinal and recreational use mean that smoking pot should no longer be a factor in determining fitness for custody?   In an article written by  Henry Gornbein  when states began legalizing medicinal ...

The Minnesota House recently passed a shared parenting bill which has a presumption of at least 45.1% of the parenting time with each parent.  This presumption can be overcome by certain factors.   Attorney Robert Franklin has written an editorial supporting the bill and calling on the Senate and Governor to pass it as well. A similar movement has been trying to get presumptions of shared physical custody passed in Massachusetts, and we reviewed these proposals in our series on Custody Reform . Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newbo...

Guest Post Introduction:  Dr. Allison J. Bell, Psy.D. has been in private practice in Westchester County, N.Y. since 1987 and is specialty-trained in child-psychology, neuropsychological evaluation of children and marital therapy. For the past fifteen years, Dr. Bell has performed forensic custody evaluation in both Family and Supreme Courts in the southern New York State region. Dr. Bell serves as both a Divorce Coach and a neutral Child Specialist on Interdisciplinary practice teams and is a member of the Massachusetts Collaborative Law Council . Dr. Bell wrote the following guest post for us regarding: THE CHILD SPECIALIST IN COLLABORATIVE DIVORCE By Allison J. Bell, PsyD. The Collaborative Divorce process is unique amongst methods of obtaining a divorce in that it offers the opportunity for children to express their needs and viewpoints to their parents, through a professional conduit, the Child Specialist. Who is a Child Specialist, what does that person do, and...

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders.   If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affi...

There are currently six pending bills which would make significant changes to the current Massachusetts custody statute and they have all been reviewed in depth in this forum over the last few weeks. If you need a quick cheat sheet for how they compare, below you will find a table that summarizes the proposed changes in each bill. For our recommendations, keep reading after the table. Current Law Proposed Bill Proposed Change P1 – P5 Definitions of Custody S.659 Shared physical custody definition changed to state “child shall reside equally”, and adds definition of “parenting plan”. S.847 Definitions Deleted Entirely H.1306 & H. 2684 No Change H.1330 H.2244 P6 – Rights of Parents held equal absent misconduct. Court shall consider adverse effects of past or present living situation. S.659 Delete Paragraph Entir...