Posts Tagged ‘Family Law’

Paternity

October 27, 2009

I am a father. There is no denying it. There is no getting away from it. It defines who I am.

I am a Daddy!

In fact, I have been a daddy longer than I have been anything else. OK, yes, I have been alive longer than I have been a daddy…I just don’t remember a “before” time!

And, YES, I have not even been married longer than I have been a daddy. (Incidentally, I have three gorgeous daughters, grown and, thankfully (forgive me girls:), out of the house.

I share my bona fides with you because of a client who called me two weeks ago. He too is a daddy. His life has taken a different course than mine. Some might question his parenting skills…but, I wont.

Let me tell you his story…

John (of course this isn’t his real name!) met a young lady, fell for her, moved in with her, and had a baby with her. Just prior to the birth of the child she thought it appropriate to finally tell him that she was still married to a guy she hadn’t seen for a while. She also indicated that she would “take care of it.”

This wouldn’t be much of a story if I didn’t mention to you that not only did she NOT take care of it but John had another child with her!

Here in Massachusetts if a child is born while the mom is still married to someone else, the husband is on the birth certificate as the father. Certainly John, my client, should have insisted that she get the divorce. Certainly John should have insisted that the issue of paternity be taken care of directly after the birth of the first child. Certainly John should have done things differently.

But he didn’t.

Now he has a problem.

John and the mother of the children have split up. She will not let him near the children…his children.

Did I mention that I am a daddy? I couldn’t even imagine someone trying to tell me that I couldn’t see or talk to my kids. But John, who made choices in hindsight that he should not have made, has no legal standing to insist he see his kids. As far as the law is concerned, they are not his children. In a very real sense, I know his pain. It is this pain that I responded to when he called.

Until John is adjudicated the father of these children he is just another guy. People don’t like to discuss paternity suits in polite society. Yet in situations such as the one I have just written about, zealous advocacy takes on a new meaning, one soaked in desperation and fueled by a fathers love.

I am a daddy… I understand John.

Can I Move My Children Out-of-State?

October 1, 2009

I was watching one of the new seasons television shows the other night. “Lie to Me” is one of those fast paced, science based, programs that I find irresistible. I also have a hard time leaving my work at the office.

Why? Seems that the protagonist on the program is divorced. He and his ex have one child that appears to be a teenager. The mother wants to start a new business – a law practice! – out-of-state. She simply tells her ex, the father of the child, that she is taking their daughter with her.

Can she?

Before I answer this question let me make just one change in the scenario (this is, after all, MY blog:)  – let’s assume that the child is in grade school and not a teenager who would have more say in the matter. So, can a custodial parent simply tell the other parent that he/she is taking the child to live in another state?

NO!

At least not without the courts approval. Unless a separation agreement states terms otherwise, one parent cannot make up the terms of the parenting plan on their own.

There are circumstances under which a court will allow the custodial parent to move away. However, without a showing that the move is justified, the court will not allow it.

The moving party has a two pronged burden of, (1) proving a good faith reason for the move, and (2) that the move will not harm the child. So if one parent wants to take the child out of state he/she should also have a plan for visitation. This is a prima facie case: that is, evidence, if un-rebutted, would sustain a judgment in proponents favor. In our “Lie to Me” scenario, the mother would have to tell the court why this is a good idea. However, the burden then shifts to the other parent to produce evidence, not just that visitation will change, but that the change will negatively affect the child. If the father, in our scenario, does not produce this evidence or, worse yet, doesn’t show up for the hearing, the court will rule that the custodial parent may take the child to a distant state.

These are always highly charged issues where the emotions of the parents can interfere with a clear-eyed evaluation of the needs of the child. In ALL cases, what each parent and the attorneys representing those parents MUST keep in mind is simply this: the best interests of the child must always be the primary focus and consideration of any and all actions taken and or contemplated by the parents!

Annulled Marriages – What’s that?!

August 3, 2009

Annulment. This is not a topic that typically comes up in polite conversation. What is it and when/why is it important?

My friends’ son is married to a sweet young lady. They appeared to have a great relationship. My wife mentioned that his wife did not want kids. I was shocked. He wanted kids – lots of kids.

They are candidates for annulling the marriage as opposed to divorce. Annulling a marriage essentially means that the marriage never took place – it is a nullity.

Divorce says the marriage failed and – this is the distinction with annulment – in a divorce there is a statutory property settlement. Not so in annulled marriages. If the marriage, as a matter of law, never took place, there is no marital property to share. There are no rights as a spouse, because the marriage never existed.  There are a number of other reasons why a marriage can be annulled.

Annulled marriages, as a matter of law, are an important option for couples like my friends son.

Best Interests of the Child

July 20, 2009

What if parents cannot agree on who has physical custody of the children? The standard the court uses to analyze this difficult question is known as the “best interest of the child”. This is an area that the court would prefer the parents to work out, among themselves a reasonable custody plan. However if the must get involved there are five (5) Relevant Factors, including:

1. the wishes of the child’s parents as to custody

2. the wishes of the child

3. the interaction and relationship of child with parents, siblings or other significant people

4. child’s adjustment to school, home and community

5. mental and physical health of all individuals.

Certainly, an older child’s wishes will be given more weight than a younger child. What is the nature of the relationship with the child and the custodial parent? The noncustodial parent?  The court will also look at the present home environment and whether the child is prospering within that environment.

Is the child adjusting well in school, getting along with other children, keeping his/her grades up?

Are there any significant issues with respect to the ability of a parent to care for the child? Is there evidence, for example, of drugs/alcohol that could impede the child’s growth?

The court does not take any of these issues lightly. Indeed the decision to either remove a child from one parent or to award custody to the other is, arguably, one of the most important, most difficult, and most emotionally charged decisions that a court can make.

This is another reason why, if the parties would agree to it, mediation is a preferable approach to the challenges of divorce and custody. Mediation is a key tool that will allow the parties to look past their own self-interests, past their emotions, past their anger for the other parent and, instead, focus on the best interests of the child.

If however, the parties cannot agree to mediate the matter, each parent would be well advised to find an attorney who has the ability to work well with the other parents attorney to resolve the matter in the best interest of all the parties.

What do you think? Leave a comment. Let’s discuss!

What Is No Fault Divorce?

July 8, 2009

An uncontested no fault divorce in Massachusetts is governed by Massachusetts General Laws Chapter 208 Section 1A. The term that the statute uses is “irretrievable breakdown”. The first issue that is addressed in a §1A divorce is whether the marriage has in fact broken down with no chance of reconciliation. In this action all that is required to make this showing is an affidavit, jointly or separately executed, stating the marriage is over.

Well, that’s often the easy part. Now what?

There are still a couple of thorny issues that must be addressed: Child custody/support, division of marital property, and, if appropriate, alimony.

The Commonwealth has clearly defined child support guidelines. The amount of support is based on the income of the party’s and the number of children. Generally, this amount is not open to discussion as you simply “fill in the blanks” to determine how much is owed. The non-custodial parent is responsible for paying child support.

Developing a parenting plan is an important element of any divorce agreement. This is an area where mediation can be helpful. Because this subject is fraught with emotion, the mediator, a neutral third party, can be very helpful in assisting the parents to clarify the issues and their mutual interest in meeting the needs of the children.

What happens if the parents cannot agree on who has custody of the children? The court uses a “best interest of the child” standard. In the next post I will discuss what that standard refers to.

I welcome your questions and comments. What’s on your mind? What would you like to discuss? Leave a comment.

Are You My Attorney?

June 29, 2009

When two parties agree to Mediation to dissolve their marriage there is only one attorney hired to begin the process. This attorney will meet with both party’s jointly and, as appropriate, individually.

While there is no hard and fast rule as to how long this process takes, typically it will progress more rapidly than if the couple engaged in an adversarial approach.

So, if there is only one attorney, whose attorney is he? The simple answer is this: The attorney is a Neutral. That is, he doesn’t advocate for either party. The Attorney/Mediator/Neutral is there to guide the parties to a resolution that is acceptable to both. The attorney will not advocate for a particular person or position. It is critically important that both party’s recognize that the attorney is a neutral party. If that neutrality is lost, the mediation will not be able to continue.

Part of the training that a mediator goes through is to develop the ability to be neutral in any and all situations. In fact, the Massachusetts rules of ethics for lawyers states that one lawyer cannot represent two people with different interests. Good mediation, and good lawyering, demands neutrality in mediation.

Have a comment about this post? Ask a question…lets discuss!

How Does the Divorce Mediation Process Work?

June 11, 2009

As a Third-Party/Mediator I do not take sides. My goal is that of a facilitator to help the couple achieve common goals. I know what the court is looking for in a separation/divorce agreement; I know what is possible; I know how to bring people together.

In mediation, the party’s begin to look at the distinction between “positions” and “interests”. When people have positions they dig in their heels and essentially say, “This is the line…don’t cross it!”.

When interests are defined, the party’s are able to ask the question, for example, “What is best for the children?” The process to answer this question, while not devoid of emotion, is, nevertheless, an easier and more clearly defined question. Now, the party’s can move away from “what I need” to “what the children need”.

The role of the mediator, is to assist in that evolving process that is often one of discovery. While the couple can no longer agree on much, with the assistance of the mediator – a neutral third party – they may be able to agree on the best interests of the children.

What Is Family Law Mediation…and Why Bother?

June 10, 2009

My practice of family law includes the traditional approach – adversarial – and the non-traditional collaborative approach. What’s the difference?

If there are children involved the difference can be significant. When two parties seek to end a marriage there is heightened pain and anger. The one thing that often gets lost in the process of dissolving the marriage is the most important thing the once loving couple have in common: sharing and caring for their children.

The process of marital dissolution is one characterized by high emotion — sometimes that emotion is not entirely rationale. In this case the children can often become mere pawns for one party to “get” the other. Often this is something that the parties may not even be aware of.

It is in this situation that divorce mediation is an excellent tool. Instead of focusing on what “I can get NOW” the focus shifts to “How will our lives look going forward and how will we care for our children.” The process of mediation cools the emotions and introduces reason into the process. If the parties can no longer agree on anything…they can agree on this: “We need to be responsible to, and care for our children”.

Divorce mediation can effectively facilitate this process. Mediation can lead to a lasting and enduring success.

I welcome your comments.


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