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family law

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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Massachusetts Law: Divorce, Custody, and Child Protection

Massachusetts General Law (MGL) 208 covers divorce. This chapter of the laws of the Commonwealth describe everything from the definition of divorce to alimony, child support, and custody issues. Section 31A pertains to visitation and custody in the best interest of a child and covers abuse of parent or child. The best interest of the child is the primary determining factor in awarding custody. An abusive parent may not be awarded sole custody, shared legal custody, or shared physical custody. Custody arrangements must be in the best interest of the child. If one of the parents in a divorce or custody dispute has a history of being an abusive parent, then the court may deny custody or visitation or place restrictions. The court may order supervised visitation for the abusive parent. The abusive parent may be ordered to attend a certified batterer’s treatment program. They are often ordered to refrain from alcohol and other controlled substance during and up to 24 hours before a scheduled visitation. They may also be restricted from overnight visitation. The court may impose any other condition to provide for the safety of the child. Restraining orders are often issued when there is a request for protection and there is concern for the safety of one parent and/or a child. The mere existence of a restraining order (209a) does not serve as proof of abuse or define a parent as abusive. Evidence must be presented that shows a pattern or serious incident of abuse has actually

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Fathers face distinct challenges to their custody right

In today’s society, what were once considered ‘traditional’ parenting roles are often reversed, or the lines between the roles associated with motherhood and fatherhood have been blurred. More and more mothers are active in the workplace, and father who choose to stay at home and raise their children are no longer an anomaly. Even in Massachusetts households in which both parents work, fathers play a far more active role in the upbringing of their children than in generations past. Unfortunately, however, fathers who divorce still face challenges when attempting to assert their custody rights. The law is widely known to lag behind social change. While some judges have come to acknowledge and honor the equal role that many fathers play in the lives of their children, this is not always the case. In many custody battles, the mother has an advantage from the very outset, based on nothing more than cultural presumptions. Therefore, fathers who wish to win shared or equal custody must take a string stance from the beginning. Perhaps the most important aspect of winning the right to share equally in the upbringing of one’s children is to assert one’s parental rights as soon as child custody negotiations begin. It may be helpful to chart out various parenting time arrangements, in order to have a visual reference that shows how different schedules would play out over a given month. In some cases, fathers who receive an every-other-weekend schedule could go as many as 12 days without spending time

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A prenup can simplify Massachusetts property division

When a couple is preparing to begin a life together as husband and wife, many consider drafting a prenuptial agreement. Once considered to be solely in the realm of the rich and famous, these contracts are becoming commonplace within many marriages, regardless of wealth. A prenuptial agreement can greatly simplify the property division portion of a Massachusetts divorce, in the event that a marriage does not work out. In order to create a prenup that will withstand any future legal challenge, there are a few necessary precautions that should be taken at the onset. A prenup should be clearly drafted and easy for all parties to understand. It should outline a fair distribution of assets in the event of a divorce, and not make any extreme or unbalanced demands. Finally, a prenuptial agreement should be just that: an agreement, not a condition of marriage. Should one party try to challenge a prenup, the matter will likely go before a judge. Judges will review the agreement to ensure that it was created as an outline of how assets are to be divided in the event of divorce. Stipulations or conditions that are unfair or heavily biased toward one party are likely to be thrown out. In the event that the entire document is found to be invalid, the property division process will revert back to the guidelines of the state. The best way to create a prenuptial agreement that is fair and enforceable is to work together to structure the Massachusetts

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Property division can lead to Massachusetts condo disputes

As some Massachusetts residents know, having a vacation condo is a luxury couples enjoy. However, when a couple decides to divorce, the shared condo can become a thorn in the property division process. If the condominium is not the primary residence, then charges and fees associated with the shared property can complicate property division. Condominiums are not often the main place of residence for many couples as they are more commonly used as vacation spaces or rental property. Nevertheless, fees must be paid to building owners to maintain the space. When a couple is divorcing, building owners can often be burdened with a lack of fee payment. If the issue of who will be sole owner of a condo is unclear, one party may not wish to continue to pay maintenance fees on a place they do not live and may not own after the divorce. Building owners may face their own legal issues if a divorcing couple cannot come to an agreement about a shared condo. Owners may need legal paperwork should one individual wish to keep the other title holder out of the shared space. Additionally, if the parties cannot come to terms with fee payments, building owners may have to take action for nonpayment, which could include eviction or suing for compensation. Property division can become exceedingly complicated when third parties are involved. Making the divorce and division process as painless as possible is usually the route most parties would like to take. Understanding the rights and

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Unusual fathers’ rights case makes national headlines

When it comes to child support enforcement, the players often fall along stereotypical lines. You have the beleaguered single mother, fighting the get the courts to force the deadbeat father to pay for the needs of his children. The story has become so ingrained in our collective belief about child support that any exception to this scenario garners media attention in Massachusetts and elsewhere. One recent case offers an unusual take on fathers’ rights, and has many debating the current state of child support law. A man recently faced a judge to defend against the charge of having unpaid child support. However, the man offered DNA test results that proved him not to be the father of the child in question. However, he still emerged from the courtroom owing child support to a woman who had deceived him for the past 13 years. At the time of the child’s birth, the man’s girlfriend claimed that he was the child’s father. Although he had doubts at the time, he signed the baby’s birth certificate. As a result, a judge is holding him to that promise, and has ordered that he pay toward the $23,000 in back support owed. However, he will be allowed to do so at a rate of $1 per month, interest free. At that rate, he will be able to fulfill his obligation in as little as 1,917 years. As this fathers’ rights case demonstrates, family court judges hear a wide range of cases, not all of which

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Deion Sanders custody decision seen as fathers’ rights win

Massachusetts sports fans may be aware of the custody battle waged between football star Deion Sanders and his estranged wife, Pilar. The former couple has been at odds with one another for months concerning the care and custody of their three children, as well as details of their divorce. A recent court decision in the matter is being heralded as a major victory for fathers’ rights. The pair went before a family court judge to argue for the right to parent their three children in the manner each saw fit. After hearing testimony and reviewing evidence in the case, the judge made a ruling that divides parenting duties between the parties. The ruling grants both parents shared/joint custody of the three children. All three are to rotate between the two households on a weekly basis, whereas the previous arrangement placed the two boys in Deion’s care and the daughter in the care of her mother. Deion will retain the right to make all educational decisions, and will also have control of decisions involving their athletic pursuits. More importantly, Deion will have the right to determine their place of residence, which can be significant in any future hearings on the matter. This case demonstrates that family court judges in Massachusetts and elsewhere have a great deal of leeway in making determinations involving child custody. As long as the best interests of the child or children at the center of a custody dispute are being served, a judge can order a wide

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Same-sex couple struggles to divorce, hits legal roadblock

Virtually all of America has become embroiled in the debate over the rights of same-sex couples to marry. When considering the issue, the focus is on the rights of people who love one another to form legally binding family units that share the same rights enjoyed by heterosexual couples. It is often forgotten that other legal rights are also connected to the right to marry in Massachusetts, namely, the right to divorce. When a same-sex marriage is solidified in one state, and the couple chooses to reside in a different state, the divorce process can become complicated. That is because states that do not recognize same-sex marriages have no legal basis to issue same-sex divorces. This scenario is currently being played out in a widely covered divorce case involving a transgendered man and his wife. The couple made the news previously due to the fact that the husband, who has undergone hormone therapy and has had his driver’s license changed to reflect his status as a male, made the decision to give birth to the couple’s three children. Multiple television appearances and a book deal followed. When the couple decided to divorce, they encountered difficulty when the family court judge raised questions about the nature of their marriage. At issue in the case is whether the husband is to be legally considered a man or a woman. The issue is further clouded, at least in the mind of the judge, by the fact that the husband has gestated three children

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Supreme Court to hear case on international custody rights

Child custody actions are among the most contentious and emotionally charged types of cases heard by family courts, in Massachusetts and elsewhere. When those cases involve an international custody rights twist, the legalities become far more complicated, and many would argue that the stakes are higher for the parent who faces being left behind when a child relocates abroad. One such case is now before the U.S. Supreme Court, and the outcome will clarify the ability of courts in our country to hear appeals in cases in which the child is no longer on American soil. The case centers on an American father who is a member of the U.S. Army. He met and married a Scottish woman, and the two had a daughter together. Their marriage has a troubled history, and they are moving toward a divorce. They have also been struggling in court over the care and custody of their little girl. In Oct. 2011, a judge ruled that the child be returned to her mother’s care in Scotland. The father had asked that he retain custody of the child in the U.S., but the court ruled that he failed to prove that the child was a habitual resident of the United States. The father appealed that decision, but his appeal was dismissed on the grounds that the U.S. courts lack the ability to rule on an appeal that was entered after the child has left the country. As this case moves forward, the Supreme Court will consider

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Illegal immigrants face the risk of losing custody rights

Immigrants come to American for a wide range of reasons, many of which are not so different from those that brought our own ancestors to these shores. Employment opportunities, freedom from religious persecution and participation in an established economic system are all motivating factors that prompt a steady flow of immigrants, both legal and illegal, to settle in Massachusetts and other states. However, for those who have their families while in our country, their custody rights could be called into question. A recent child custody case illuminates the unique challenges facing parents who are also illegal aliens. A Mexican father has been involved in a lengthy court battle to regain his custody rights to his three young sons. Following his deportation in 2010, the boys were in the care of their mother, and American citizen. However, when she was deemed unfit to raise the children, they were removed from the home and placed in foster care. He has been fighting to get them back ever since. A judge recently ruled that the father is to be reunited with his boys. They will remain in the country for a short time, after which the court will make a final determination in regard to his parental rights. He is hoping to return to his family home with his sons, and raise them with the help of his extended family in Mexico. As this case demonstrates, foreign nationals who face challenges to their custody rights often fight an uphill battle. Unfamiliarity with the

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