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family law

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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What is the difference between a fault and no-fault divorce?

In the Commonwealth of Massachusetts, the grounds for divorce depends on whether you decide on a no-fault or fault divorce. A no-fault divorce does not require parties to prove blame for the breakdown of the marriage. Either or both parties can file to begin the process for a no-fault divorce merely pleading that the marriage is beyond repair, and it is time to move on. The ground for this action is “irretrievable breakdown of marriage”. A fault divorce is more involved. In the Commonwealth of Massachusetts, you have the option of filing for divorce and claiming one person is to blame for the failure of the marriage. Common grounds for a fault divorce include cruelty and abuse, desertion for one year or more, adultery, impotence, excessive use of drugs or alcohol, failure to provide support or maintenance, and sentences of five years or more in a penal institution. Proving a fault divorce can be difficult. It is recommended the accusing party have solid proof of any fault grounds. Make sure to consult with a knowledgeable attorney before taking any divorce action to understand your options. Contact our office to have your questions answered today.

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My spouse and I have just moved to Massachusetts from another state. Do we need to get our marriage license transferred to Massachusetts?

Moving to another state can be a legally frustrating process. Aside from the logistics and expense of moving your possessions across state lines, you will likely find yourself waiting in line or on the phone with government offices as you transfer the legal documents that make up your life. Vehicle registration and title, voter registration, insurance policies and more must be transferred. Luckily, marriage licenses issued by one state are valid in all forty-nine others. A number of court cases have affirmed that one state must recognize a marriage license issued by another. Most famous are Loving v. Virginia, which struck down bans on interracial marriage in 1967, and the more recent Obergefell v. Hodges, which made it illegal to discriminate against same-sex couples in the issuance of marriage licenses. The courts tend in favor of interstate validity of marriage licenses as a way of promoting the integrity of marriage and protecting families. Welcome to Massachusetts—and take transferring your marriage license off your moving-in checklist. If you have questions regarding out of state marriages or any other family law related matter, please contact our office to speak with an experienced Massachusetts family law attorney.

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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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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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