Mediation

Most people who are going through, or believe they will be going through, the legal process believe it must be adversarial. It does not. There is a simpler and cost effective way to resolve your dispute. Why not give mediation a try? You really have nothing to lose.

There are many attorneys who are opposed to mediation. I am not exactly sure why but I suspect it might have to do with the fact that attorneys are trained to be more adversarial rather than to negotiate. However, most cases that go through the legal system settle. Only a small portion of cases goes to trial, as it should be in the family, housing and civil cases.

In Probate and Family court most cases are required to do some form of settlement negotiations. In Housing court, you are required to go to mediation. In Small Claims court, everyone is encouraged to select mediation as a viable option before your case is heard by a decision maker (judge or clerk magistrate). In District court and Superior court (civil cases) you can request mediation to attempt to settle your case.

There are government funded programs where you can go to mediate your case. If you want to use these government funded programs you will need a referral from the court where you case is filed.

You can always contact a private attorney, like myself, who does private mediations as well. Generally, the cost of mediation is split evenly between the disputing parties. However, if the parties have made other arrangements then a mediation will not get involved in how payment is made, unless that is a dispute within the mediation itself.

I think that anyone who want to use mediation to resolve their dispute should verify the cost of the services in advance. Most attorneys will charge a fee for the mediation session, usually at a specified hourly rate. In addition, there is usually a flat rate fee to draft the documents needed upon settlement of the case to be filed with the court. I have noticed that most mediators charge more than their normal hourly rate for mediations. I do not subscribe to this and my regular hourly rate as an attorney is the same rate I charge for mediation services.

Depending on the complexity of the cases, the documents that needs to be produced for settlement/negotiation, and issues in dispute the mediation may take multiple days. Some mediations can be completed within an hour, while other take four to six hours. You can always obtain an attorney’s position on the settlement before submitting it to the court for approval.

The benefits of mediation:

  1. To not take up time in court for issues that can be resolved outside of court. You can mediate a case before anything is ever filed in court;
  2. To be able to represent your settlement/case in court within few minutes, rather than siting in court all day waiting for your case to be called (where a decision may not even be rendered);
  3. You split the cost of a qualified attorney, rather than each party paying your own attorney fees;
  4. You get an agreement that both parties can “live with” and are not decided by the judge;
  5. If a resolution is not reached, you may be closer to resolving issues, have some issues (if not all resolved) and you can understand the other parties position.

Why not contact our office today to settle a dispute?

Jurisdiction

In legal matters involving children, physical location of where child lives is very important when deciding jurisdiction. If one parent moves a child out of state, then the jurisdiction could change immediately, or after a statutory period of time depending on which state.  In Massachusetts, the duration is six (6) months or more—at which point Massachusetts no longer has jurisdiction over the parties.

Therefore, any modifications (changes that need to be made to an agreement) must be done in the child’s new home state. However, the Commonwealth of Massachusetts can still enforce any court orders and a contempt filed in Massachusetts (assuming the other party remains in MA) can be addressed and heard by the court. If the custodial parent is served in hand with the contempt summons and he or she fails to show for the contempt hearing, then a capias (warrant for their arrest) will be issued. If both parties are present for the hearing, then the court will address the contempt and ultimately make a ruling. However, the contempt being filed by the non-custodial parent must pertain to the parenting time.  A contempt for non-payment of child support can also be filed in Massachusetts.

If the other state modifies the Massachusetts court order, then Massachusetts would only be able to address issues pertaining to support for the child.

The Massachusetts court have no jurisdiction to modify or change the orders after the child is gone more than six months. A modification would need to occur in the child’s home state, where they are currently residing.

Removal of children out of state

This is American and I can choose to live wherever I want to. I do not need the court to tell me where I can go and where I cannot. Refusal t allow me to move is violation of my Fifth and Fourteen amendments to the US Constitution. If I want to leave Massachusetts then I can, right?

img-alternative-text

If you have children and the other parent wants to continue to live in Massachusetts and does not want you to take the children to another state permanently then the answer is not a simple one.

We are only minutes from the Connecticut border now so an extra five
minutes drive will not make any difference.

I have heard this statement so many times in my practice and the truth is that it does matter and it does matter a lot.

In most separation agreements (terms of the divorce), there is language that precludes one parent from permanently leaving the Commonwealth of Massachusetts without a court order or obtaining other parents’ permission. Even without that language in the separation agreements, Massachusetts General Laws, c. 208, § 30, states that children “shall not . . . be removed out of this commonwealth without such consent . . . without the consent of both parents, unless the court upon cause shown otherwise orders.”

In other words, both parents must agree or the court must approve the parent to take the children out of the Commonwealth. The reasoning behind this, in part, was to prevent a parent from alienating the other parent or prohibiting the child-parent relationship/bond.

If the other parent does consent then it is best to get it in writing, and whenever possible, to make it a court ordered modification.

There are different standards required by the parent in order to prove that they should be permitted to move out of the Commonwealth with their children. The most well known is based on the “Real Advantage” test as established in Yannas v. Frondistou-Yannas, 395 Mass. 704, 1985. While Yannas is an old case it is still good law and is applied in full, or in part, in removal cases. The real advantage test is a two-prong test and both prongs must be met in order for the court to allow removal.

“If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively. Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof or in inequitably identifying constitutional rights in favor of one person against another.” Yannas 712-713.
When considering moving out of the Commonwealth with your children it is best to consult wt. an attorney months in advance to better understand the law and what a move would legally entail.

The Yannas case pertains when one parent is the custodian. In situation where the parents share custody, then Mason v. Coleman is more applicable. 447 Mass. 177 (2006). “Shared physical custody contemplates that ‘a child shall have periods of residing with and being under the supervision of each parent . . . assur[ing] . . . frequent and continued contact with both parents’.” G. L. c. 208, s. 31. The court must determine what is the child bets interst given all relevant factors.

When a restraining order is needed?

 

Restraining Order

Just because you are planning on divorcing your spouse do not plan on forcing them out of their house, or obtaining custody of the children, by obtaining a restraining order. Restraining orders (also known as an abuse prevention order or a “209A,” which is the statute that govern this law) were created for people who are in imminent fear of bodily harm from another individual.  It is in place to protect people and not to be used as a weapon.

Pursuant to Massachusetts General Laws, Chapter 209A, the person seeking a restraining order must have a blood relationship, or was or is in a dating relationship with the party they are seeking protection from. They must draft a sworn statement stating specific facts as to what happened and as a result why they are seeking the order of protection. They then must present the sworn statement and any additional facts to the Court in order of the Court to determine if the abuse prevention order is warranted or not.

If the court finds enough evidence to support your request than the other party must be served with the restraining order and a date for them to appear in court will be issued. Certain people could ultimately lose their employment if a restraining order is issued.  Anyone who has a restraining order issued against them must immediately surrender any and all firearms and weapons to the police. Even if the restraining order is dismissed after a hearing the police can still retain those firearms and weapons and may ultimately revoke your license to carry or an FID (for pepper spray or hunting) cards.

Depending on what the restraining order states, anyone who has a restraining order issued against them must usually vacate their home and be precluded from seeing their children for a period of time.  The restraining order will have a date to return (usually 10 days) to the court allowing both parties to present their respective positions.

The goal of seeking and issuing a protective order should be when you are in imminent fear of the other party and not a tool to gain an advantage or ruin someone’s career.

Adultery and how it relates to divorces

 

Yes, it is true that adultery is illegal in Massachusetts. Pursuant to Massachusetts General Laws, Chapter 272, Section 14 is it illegal for a married person to have sexual intercourse with someone other than their spouse. The penalty is up to three years in prison. The law continues to remain in effect. However, I have been told by Police Chiefs that they will never charge someone with the crime of adultery and in my lifetime, I have never seen it prosecuted.

There are many clients who want to file for divorce on the grounds of adultery. You can certainly do so but the court will not appreciate it and I would strongly discourage it. To file for divorce on the grounds (reason) of adultery you are required to list both your spouse and the person who he/she has engaged in the affair with. That person must also be listed as a Defendant and would also need to be served with the complaint for divorce.  At the end of the day, filing for divorce based on adultery will not likely get you anything more and it will certainly manage to antagonize the situation where your spouse will want to fight over everything simply because you are making his/her life public and brining this other person into the divorce.

The only reason that the court would care about adultery is if a spouse was wasting marital assets by giving the other person extravagant gifts, vacations, etc.

I understand that your pride is hurt and you may never be able to forgive the betrayal but adultery is all but irrelevant when it comes to its criminality and any implications in a divorce situation. Instead I recommend that the person who was cheated on become a strong resistant person and make the best decision for their future rather than focusing on the injustice.

If the police and the courts do not care about adultery, then the rest of people must learn how to best benefit from the circumstances.

Marijuana

It was quite interesting that after a new law passes, such as the legalization of marijuana, that now everyone is talking about the enforcement and the potential legal problems the law creates. At the time of the voting on this bill nothing was mentioned about how to enforce or any legal problems that the bill might face. Only after the law is passed, and is in effect do these “problems” arise.

I was very concerned at the time the bill was proposed about the ramifications and the enforceability of this if it became legal.  For example, just because it is legal to consume marijuana in the privacy of your home, if you live in a multiple family building the smoke does not stay within the confines of your apartment or housing. Therefore, you are subjecting other renters or owners to the smoke from your marijuana. While you may not care, the other parties may, and such smoke may impact their family in detrimental ways.

Another way this may affect families is that, while legal, a parent does not the right to consume marijuana and simply assume their children are safe and protected. The Department of Children and Families (DCF) may be involved with your family, or become involved, and depending on what is happening in the home may ultimately attempt to take your children away from you for consuming marijuana.

Business owners are also facing problems because unless you have a policy that prohibits the consumption of marijuana you will not be allowed to discipline or fire employees who consume marijuana.

From a law enforcement standpoint, there is no viable test to determine if you have consumed marijuana that would impact your ability to drive or whether you could use the consumption of marijuana as a defense if you are charged with criminal activity.

Voters should educate themselves on a bill before it becomes the law so that they make a decision that is best for everyone. Sometimes that means having a bill fail, have it be revamped and submitted at another time. In this case, it will be trial and error to have the law conform to what society will allow.

Now that the bill has become law, landlords have some work to do ASAP.  They need to decide if they will allow the smoking/growing of marijuana in their buildings, and add such clauses into any new or existing leases. Households who have child should education themselves and the possible ramifications for their actions and every business owner needs to establish updated employee handbook regarding their policies on marijuana consumption.

Worcester Judges

From: mass.gov

With the retiring of Judge Gregory Roach, I was considering his career, and thinking about what made a him so successful in Worcester.  Below are my ideas:

Having never been a judge I can only assume that their job is very difficult at times. Trying to weed through all the testimony and determine what the real actual facts of the case. As an attorney, it is our obligation to convince the Judge that that our version of the story is correct and that they should find in our client’s favor.

It is very frustrating when the judge does not know the law, or the level of proof required, and who bears that burden to prove something, or when the required proof shifts to the other party.  The attorney then has an obligation to educate the court.  Judge Roach knew the law, something I could count on when appearing in his court.

In my opinion a perfect judge is very well versed in the law, knows all relevant case law as it changes, and can apply the law properly without me having to do any extra work. My focus should always be on the facts and how those facts apply to the law and thus why the court should rule in my client’s favor.

It is very helpful when a judge listens to facts, and when appropriate, gives the parties feedback as how the judge might rule given the limited facts presented. Feedback is most helpful in the Family and Probate Court and Housing Court cases. Sometimes it is the push the parties need to settle a matter.

No matter what, it is not only required, but imperative that judge remain neutral throughout the proceedings, not taking favoritism over a party and rely on the facts of the case and the law when deciding, especially since very decision they make impacts a person and/or family.

Same Sex Adoption

same-sex_adoption_icons_by_kenny_malone-1

Chapter 210, Section 1, allows a “person of full age may petition the probate court in the county where he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife or husband, or brother, sister, uncle or aunt, of the whole or half blood.”

When a same sex married couple have a child through vitro fertilization (IVF) with the assistance of a known, or unknown, sperm donor they are not require to notify the sperm donor parties of the adoption as the “plain language” in the statute does not require it.

“G. L. c. 210, § 4, requires notice of a petition for adoption to be given only to those persons from whom written consent to the adoption must be obtained. See G. L. c. 210, §§ 2, 4. No notice is required for persons not expressly included in G. L. c. 210, § 2.” Adoption of a Minor, 471 Mass. 373 (2015). Notice is required to be given to the “lawful parent.”  The Court finds that “lawful parentage, and its associated rights and responsibilities, is conferred by statute on the consenting spouse of a married couple whose child is conceived by one woman of the marriage, through the use of assisted reproductive technology consented to by both [parents].” Id.

There are circumstances where a “punitive father” may request to establish his paternity. Some of those circumstances would be where the child’s mother was married to someone else at the time of the child’s conception or within 300 days after termination of marriage, or the mother was married when the child was born.

Adoption

 

adoptive-family-transracial

As is in all child custody cases, including adoption, the standard is what is in the best interest of the child. Even when a parent has had little to no interaction or bonding with a child, either by choice, alienation or circumstances, it may not be beneficial for the child to have that relationship permanently severed by way of an adoption. The Court must determine not only what is in the child’s best interest currently but also how that determination impacts the child in a few years, and ultimately for the rest of his/her life.

Once an adoption is granted the child no longer has any rights to any benefits that the biological parent may have to offer, such as child support pursuant to G.L. c. 208, § 28, health insurance coverage, social security benefits in the event of the biological parent’s disability or death. 42 U.S.C. § 402(d) (2010). It would also disqualify the child from inheritance from the biological parent and the biological parent’s family under the laws of intestacy. G.L. c. 210, § 7.

Depending on the adoptive parent’s ability to financially care for the child, the termination of the biological parent’s rights would severe any child support obligation. Therefore, the Court must consider whether the adoptive parents will, may become or are a public charge. Even if the biological parent’s income is minimal the Court will order that parent to pay child support to assist in the well being and care for that child.

The Court must also consider the parent-child relationship and how if severed, through an adoption, would affect the child, now and ultimately forever.

“In the negotiation of their disengagement, divorcing parents may not bargain away the best interests of their children in general, and the children’s right to support, financial or otherwise, from either one of them in particular.” Adoption of Marino, 77 Mass. App. Ct. 656 (2010). See Knox v. Remick, 371 Mass. 433, 437, 358 N.E.2d 432 (1976); Wilcox v. Trautz, 427 Mass. 326, 334-335 n. 7, 693 N.E.2d 141 (1998); White v. Laingor, 434 Mass. at 66, 746 N.E.2d 150; Quinn v. Quinn, 49 Mass.App.Ct. 144, 146, 727 N.E.2d 92 (2000).

However, each case is unique and the circumstances in each case must be looked at to determine if adoption is a viable option.

Freeing you from your Cage