UPDATE:  Chief Justice John D. Casey sends an  Open letter regarding co-parenting during COVID-19: "It is times like this, when society faces threats once thought unimaginable, that the rule of law is more important than ever... Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order. In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone." Additional resources have become available during this crisis, please scroll to the bottom of this post for more resources. Co-Parenting in a Crisis: COVID-19 and Beyond by  Jennifer Hawthorne Mediators and collaborative professionals work with parents to create a realistic and practical parenting p...

When drafting a parenting plan for separated parents of minor children, there are some basic things that should be in every plan.  These include answering the following questions: Who has decision making responsibility (also known as legal custody)? Who has residential responsibility and when? In other words, design a base parenting schedule (also known as physical custody). When can the base schedule be changed? For example including a holiday and vacation schedule. Are there any necessary agreements around communication? Are there any limitations or notification requirements related to travel with the children? How and when can the schedule be changed? What other events require notification (such as illness of a child)? What is your plan for dealing with disagreements? Some parenting plans keep these terms relatively simple and leave a lot of room for flexibility between the parents.  There are pros and cons to any choice when drafting an agreement, and a flexi...

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...

I am Attorney [INSERT NAME HERE] and I FIGHT for my clients! This is a common description on an attorney's website.  They want you to know that they would be your champion!  If you hire them you won't have to worry about your problem anymore.  They'll take that monkey off your back. But is that true?  Is it realistic?  Is it really what you want? While the job of an attorney is often described as zealous advocacy, to equate that with fighting is to misunderstand the work of an effective attorney.  Zealous advocacy means that your attorney is working hard to accomplish your goals.  Unless your goal is to create conflict and start an expensive legal battle, then "fighting" is probably the last thing you want your attorney to start with. Consider these two examples: Example 1 - The Stolen Website Copy: You find out that one of your competitors has stolen copyrighted material from your website and reprinted it on their website.  You call y...

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 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...

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: 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 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 Proc...

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 Ordoñez 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.

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...

"I think a plan is just a list of things that don’t happen.” – Parker in The Way of the Gun Often when negotiating a parenting plan with clients, I point out that the actual written plan doesn’t dictate what happens.  It’s just a piece of paper.  Even when the court enforces the agreement that process takes time, effort, evidence, follow-up, and more time.  When both parents agree to guidelines for co-parenting that make sense to both of them, then they are more likely to end up with an actual plan that everyone buys into.   When parents can’t agree the result is typically a Judgment or Divorce Agreement that results in more litigation in the form of Modification actions, Contempt actions and Appeals. One such case was recently remanded to the trial court by the Massachusetts Appeals Court on a 1:28 decision.  The case involved a Complaint for Modification, Cross-Complaints for Contempt and Cross-Appeals.   While the issues being appealed are numerous, ...

This past summer we posted a full blog series on issues facing Unmarried Parents in Massachusetts .  While many issues that unmarried parents face may be different than those faced by married parents, most of the issues will be the same.  Parenting a child still comes with may of the same worries, financial obligations, affections, and lessons, regardless of the parents' relationship with each other.  However, when legal realities collide with economic or practical realities, there may be significant differences in how unmarried parents are treated. Removal cases are one example of this disparity in Massachusetts.  Removal is a legal term of art for the simple concept of when one parent wants to move their residence out of state and take their child with them.  In Massachusetts, M.G.L. c. 208 Section 30 covers the removal of minor children in a divorce case, and prohibits removal without consent of both parents or order of the court.  We explore in what ...

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #9: What happens if I want full custody of a child born out of wedlock? Unmarried mothers in Massachusetts are presumed to be the sole legal and physical custodian of a child without going to court.  If the father requests it, the court can order that either party have sole legal or physical custody or that the parties share legal or physical custody depending on your specific circumstances. However, "full custody" is somewhat of a myth, because unless the other parent is unfit they will still be involved in the child's life to some extent. While sole legal custody allows one parent to make major decisions, sole physical custody does not mean the child is alw...

Summer is finally here.  The air is humid, the sunblock is out, and it's finally time for vacations and school break.  But enjoying summer too much has its consequences.  Our  Summer Lovin'  series is about those consequences for Unmarried Parents in Massachusetts: Summer Lovin' Series #3: How do Unmarried Parents work out Custody and a Parenting Plan? Children of unmarried parents are by default in the custody of their mother. Parents can agree to share custody or arrange for visitation through collaborative negotiation or mediation when appropriate. If they can't agree then the court can create a parenting plan with the filing of a Complaint for Custody and Visitation. 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 schedu...

In a recent Supreme Court decision,  Moreno vs. Naranjo , SJC-11070 (2013)  , the SJC dismissed an appeal as moot for a 209A order that had expired, but addressed the underlying issue anyway in order to provide guidance to District Court judges.  In  Moreno  the District Court judge had considered the impact of the order on visitation and had ordered a 6 month order instead of 1 year because of the likely impact of the order on the relationship between the defendant and the child.  The SJC indicated that this consideration was improper. In deciding the length of an order, the only consideration should be the "time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody."   This doesn't mean that an order can't include provisions for visitation, but only that the impact the order has on visitation shouldn't affect the choice to issue the order or for how long.  That choice is dependent solely on ...

Most parenting plans drafted by experienced practitioners will include language along the following lines: "Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both Parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The Parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule." This language is intended to encourage parents to discuss ...

UPDATE:  The changes proposed in this post were adopted on June 25, 2013 and became effective August 1, 2013. Massachusetts Supplemental Probate and Family Court Rule 412 currently allows for the filing of a Joint Petition for Modification of Child Support when two parents agree that the child support figure should be amended.  Often when there has been a material change in circumstances , two parents can agree that the child support should change to reflect the new circumstances.  If the new agreement can be reduced to a writing, then it can be submitted to the court with a Joint Petition under Rule 412, and the court may approve it without requiring a hearing (although the court may schedule a hearing if they have questions about the agreement). The obvious benefit to this joint petition process is avoiding the cost and stress of unnecessary trips to court when an agreement is reached between the parties.  When parties can't agree on whether chi...

My oldest daughter and I have found a TV show that we both can agree on: Disney's Phineas and Ferb  (new episodes Fridays on Disney Channel, and available on Netflix Instant Watch).  The basic plot of the show is that two boys, Phineas and Ferb, create an unbelievable invention in each episode and have an adventure, while their older sister, Candace, tries to catch them in the act of doing something dangerous.  There is a side plot in most episodes involving their pet platypus, Perry, who also happens to be a secret agent foiling the plot of Dr. Doofenshmirtz, an inept evil scientist. Dr. Doofenshmirtz (as seen in Phineas and Ferb ) The reason the show also appeals to adults is that the characters are well rounded and experience everyday situations in addition to the incredible plot adventures.  In the episode I Scream, You Scream , for instance, we find out that Dr. Doofenshmirtz has an ex-wife, Charlene Doofenshmirtz, and a daughter, Vanessa Doofenshmirtz. ...

I once overheard an older relative ask one of my cousins if her husband was babysitting their children.  Since my cousin didn't have the children with her, the older relative was simply asking if the children were with their father.  But my cousin heard it differently.  She answered that he was their father and didn't "babysit", he "parented" their children. For those who grew up at at time when Ward Cleaver was the typical father figure, only entering the picture to discipline the children or throw a ball with them, if a father is taking care of the children while mom is out that is unusual.  But the newest generation of parents grew up with the hands-on parenting of Dr. Huxtable and Danny Tanner .  To what extent TV is just reflecting the change in societal norms or affecting them is beyond the scope of this post.  But clearly there has been a shift regarding how involved the average father is in the everyday parenting responsibilities. If the ...