Custody rights

Holiday Custody

The winter holidays may be the most wonderful time of the year, but they are also a top contender for the most stressful time of the year. Regardless of family structure, holiday gatherings and visits can be contentious. Under the stress of cleaning and cooking and visiting in-laws, even close-knit nuclear families, amicably divorced co-parents, or happily mixed step-families might experience some tension and conflict around this time of the year. Given the stress of preparing for holidays, and the emotions invested in family celebrations, it is more important than ever for there to be good channels of communication about scheduling. When child custody agreements are involved, communication is even more important, especially if custody arrangements or their enforcement have been contentious issues in the past. Many shared custody agreements drawn up as part of the divorce settlements will specify holiday visitation and custody rights for each parent. For example, one parent may have the children for Thanksgiving and New Year’s, with the other parent having Christmas and the surrounding days. In the next year, the parents might swap time periods, following an alternating schedule laid out in the custody agreement. Changes happen, however. A flight back from a visit to grandma might be delayed by snow. A family wedding might be scheduled for the days after Christmas. A teenager with a mind of her own might want to go to a friend’s cookie-decorating party close to mom’s house an hour away, even though dad has custody for that date.

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What factors do courts consider when determining child custody?

Courts primarily base their decision on what is in the child’s best interest, using the Child’s Best Interest Standard. Factors vary from state to state, but the overall goal is to make a decision that promotes the health and wellbeing of the child. Parents are encouraged to come to an agreement on matters of child custody and visitation to submit to the court. However, if the judge finds the settlement agreement is not in the child’s best interest, it can be rejected. Courts will generally determine the stability of each parent’s home environment and their interest and commitment to caring for the child. Other factors include the health of each parent, both physical and mental; the special needs of the child, if any; the child’s own wishes if they are old enough to say so; whether there is evidence of illicit drug use, or drug/alcohol abuse; and adjustment to the community, such as where they go to school, proximity to other caretakers, etc. In Massachusetts, the best interests of the child are the overriding guiding principle for judges making custody decisions. State law also says that the child’s “happiness and welfare” are paramount and that the parents’ rights are equal unless a parent has been found to be currently unfit. Child custody cases can be complicated and always require extensive knowledge of family law. When facing a child custody issue, you will probably have several questions. Please call our office for experienced advice regarding your family law concerns.

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How do courts determine if relocation of a child to another state during a divorce is acceptable?

In situations where a custodial parent wishes to relocate with a child, the court will determine whether child custody relocation is in the best interests of the child. While a parent is free to relocate out of state themselves without the child or with the permission of the other parent to take the child, the state of Massachusetts requires a judge ruling regarding relocation contested by a parent. Depending on the current custody agreement, the judge has two different processes for determining if relocation is in the child’s best interest. For joint or shared custody the judge will take into account the following: Whether or not the quality of the child’s life will be improved and if the child will endure similar benefits as the parent from the move. Adverse effects of altering visitation schedule and the extent to which the child’s relationship to the non-moving parent will be compromised. How the child’s emotional, physical, or developmental needs will be impacted by moving or not moving. If there is a way to create a new visitation order to allow the non-relocating parent to maintain a close and enduring bond with the child. In the event a parent with primary custody is requesting relocation, the judge will apply what is known as the “real advantage” standard as the child’s well-being is more closely intertwined with the parent’s welfare in these situations. In this case, the judge will examine evidence of economic benefits, availability of extended family, and the desire to relocate

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Case brings attention to embryo rights

An ongoing case regarding rights over pre-frozen embryos may be of interest to couples in Massachusetts. The Illinois case concerns a former couple who were fighting over ownership of the frozen pre-embryos. There is no federal law governing embryo rights, and state laws vary. Under Tennessee law, former partners can stop an embryo from being implanted if their former partners have other options for having children. Under Iowa law, both the man and the woman involved have to sign consent forms for embryos to be planted or discarded. In New York, the courts used a contract signed at a fertility clinic as the basis for its decision. Before the Illinois case began, the former couple had been emailing back and forth about the fate of the embryos for a year. The man later filed a complaint in court asking for the embryos not to be used in August 2011. The man had donated sperm to his former girlfriend after they had been dating for five months. She had been diagnosed with non-Hodgkin lymphoma, and treatment might leave her sterile. In the emails, the man at first told his former partner that he was glad to be able to help her. He later expressed reservations when he began to question how others would view his absence from his children’s lives. One of the central issues within the case has been the embryos being the woman’s chance for her own biological child. Custody rights usually involve children who have already been conceived,

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How incidents of abuse can affect child custody cases

A parent in Massachusetts who has been violent towards their child or the other parent usually cannot get custody of their child. However, this rule is not set in stone, and a parent may be able to get child custody or visitation after an act of violence if they can show that it is in the best interests of the child. When judges are making custody decisions, they will usually look into whether there was a serious incident of abuse or a pattern of abuse in a household. If either of these two things exists, it is assumed that placing a child with the abusive parent is not in the child’s best interests. The parent accused of abuse may have an opportunity to prove that the judge’s assumption is wrong and argue that the child should be placed in their custody. In child custody cases, abuse is when a parent inflicts or attempts to inflict bodily injury on one of their family members. Making another person believe that bodily injury is imminent is also considered to be abuse. A serious incident of abuse is when a parent threatens, inflicts or attempts to inflict serious bodily injury on the other parent or their child. There are some cases where a father could be denied custody and visitation rights as a result of false allegations of abuse. In other cases, a father might be fighting to obtain custody rights after going through a divorce with a mother who was abusive. Many fathers

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How paternity is established in Massachusetts

Residents of Massachusetts may establish paternity with the court by filing with the court, the city clerk or the registrar of vital records. If the documentation is passed through a clerk or registrar, these entities are responsible for sending it to the state juvenile court. The court may also collect personal information about the parents and child. The information that the court or registrar may request include the names, Social Security numbers, ages, dates of birth and addresses of the mother, father and child. If paternity is not voluntarily established with the court, any party may seek to make such a registration. Establishment of paternity with the court is necessary in order to maintain fathers’ rights. The court must have proof of paternity in order to assign visitation rights and shared custody of a child. In order to enforce the obligations and rights related to paternity, the court may order proof of paternity. Such proof may be requested in order to confer custody rights as well as shared custody and visitation rights for the father and paternal grandparents. Paternity claims may be proven or disproved by way of paternity tests such as DNA testing. Once paternity is established by the court, additional actions such as orders for child support may commence in family court. Establishment of paternity provides a father with rights to access with a child. If either parent desires to establish or challenge paternity claims, this must be done through juvenile court. An attorney may be able to

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Shared custody may be best for Massachusetts children

In decades past, child custody after divorce has almost always been the same. One parent is awarded physical custody of any children involved, and the other receives visitation. A new bill in Massachusetts seeks to sweep the old model of custody rights away in lieu of a more equitable shared custody plan. The goal of this bill is simple — allow children to have time with both parents. Authorities on the subject have asserted that, providing there are no extenuating circumstances, children deserve to see both of their parents on as regular a basis as possible. This recommendation was birthed from over two-and-a-half years of research. Additionally, Massachusetts parents going through an otherwise amicable divorce might be able to avoid conflict over fighting for child custody if it is a given that both parties will be able to see and spend time with their children. When the courts typically default to the principal parent, it can create animosity and strife between a divorcing couple. Instead, this bill would push for divorced parents to work together on determining a child custody plan that will benefit everyone involved, especially the children. Ultimately, barring circumstances such as domestic violence, it can benefit the children of divorced parents to be permitted to see both of their parents equitably. If a parent is unable to follow through with the commitment that they agreed to, courts would likely intervene to adjust the arrangement. Otherwise, parents working through a divorce can avoid any further conflict by agreeing

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