Sunday, December 26, 2010

Bullying in a divorce

There has been much discussion in Massachusetts lately about bullying in schools. However, bullying is not limited to that arena. Bullying occurs everywhere in society including marriages and divorce. However, in a divorce, bullying can be particularly harmful. Bullying can effect the outcome of a divorce and this can have ramifications for the rest of a person's life. In fact, frequently, bullying is conducted for the sole purpose of effecting the outcome of the divorce.

It is not unusual for one party in a marriage to be overbearing to their spouse. When the parties get divorced, it is typical for the overbearing conduct to get worse. This conduct can vary from merely being rude to being highly destructive to spouse and children. Bullying should be recognized as a form of abuse. It is a course of conduct that is designed to control the spouse and should never be tolerated in a divorce.

Unless this conduct is addressed, you can expect that it will continue and get worse. If there are children, it is possible that this conduct will last for the joint lives of the parties. While they may be getting divorced, they will still have to deal with each other because of the children.

How do you deal with bullying? The first step is to recognize conduct as bullying. Then take the person to an authority that can punish the conduct.

Bullying involves repeated acts attempting to create or enforce a person's power over another and creating an imbalance of power. Bullying consists of three basic types of abuse – emotional, verbal and physical. Wikipedia. Massachusetts defines bullying in schools as: "the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that: (i) causes physical or emotional harm to the victim or damage to the victim's property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantially disrupts the education process or the orderly operation of a school. For the purposes of this section, bullying shall include cyber-bullying." G.L.c. 71, § 37O. These definitions apply to divorces as well.

Bullying needs to be brought to the attention of the court. Only the court can punish this conduct. If the behavior involves physical conduct or a threat of physical abuse, then a domestic abuse restraining order can be obtained under G.L. c. 209A. Other conduct can be addressed by the court’s powers in a divorce or paternity action. It is not unusual for orders of the court to address this behavior without knowing that bullying is occurring. Usual orders include language that no conduct can occur that denigrates a party and that the parties have to treat each other with respect.

If bullying occurs, get an order to prevent the specific conduct and then bring a contempt to address the wrongful behavior if it continues.  Abuse should never be tolerated.

Perhaps the best way to deal with bullying in a divorce is to hire an experienced family law attorney.   This attorney should act as a barrier between the bully and the victim.  I find a very effective course of conduct is to direct the anger of the abuser to the attorney instead of the spouse.   When the bully blames the lawyer, they usually back off from abusing the spouse.

Wednesday, December 22, 2010

Recognition of international custody decisions

In the recent case of CHARARA v. YATIM, 09-P-1189 (Mass.App.Ct. 11-23-2010) the Court refused to recognize a custody determination from a Lebanese Court. A little background helps understand this case.
Prior to the enactment of the Parental Kidnapping Prevention Act in the late 1970's, custody disputes frequently resulted in battles across state lines. Since child custody judgments are considered subject to change based on a change of circumstances, states traditionally considered child custody cases even if another state had rendered a decision. This resulted in parties grabbing the children, running across state lines, and filing a new action. This was unique in American law as the Constitution requires states to give full faith and credit to final judgments of other states. A custody decision which appeared to be a final statement was not treated that way. Congress passed the Parental Kidnapping Prevention Act and required all states to treat custody decisions of other states as final judgments. The law also created a concept of home state to prevent parties from transporting children across state lines to find a favorable court. The concept of home state requires that child custody disputes be litigated in the state where a child has resided for the six months prior to the filing of the action.
Following the enactment of the Federal Parental Kidnapping Prevention Act, a uniform set of laws was proposed which was known as the Uniform Child Custody Jurisdiction Act. This incorporated the PKPA’s concepts of home state and recognition of other state judgments. Gradually, all states adopted a version of the UCCJA. Massachusetts was among the last states to adopt this. It can be found in the Massachusetts General Laws as chapter 209B. Included in the MCCJA is G.L.c. 209B, § 14 which reads: "To the extent that the legal institutions of other nations have rendered custody determinations in substantial conformity with the provisions of this chapter, the courts of the commonwealth shall grant due recognition to such determinations"
This provision should discourage transporting children from another country to Massachusetts to gain an advantage in a custody dispute. However, as we can tell from this current case, not all international decisions will be recognized by Massachusetts courts.
In Charara v. Yatim, the husband and wife were living in Massachusetts with two minor children. They had both been born in Lebanon and were Shia Muslims but had become US citizens. The children were also US Citizens and had been residing in Massachusetts for more than six months prior to the first filing in Lebanon. In 2004 the couple went to Lebanon to obtain a religious divorce. Approximately one month later, the husband filed a guardianship action in Lebanon. Eventually, a Lebanese Court issued a judgment granting custody to the husband. Consistent with Lebanese law, the decision was issued by a religious court. The wife participated in the Lebanese proceeding. After the Lebanese case concluded, the wife returned to Massachusetts and filed an action to obtain custody of the children.
The Massachusetts court focused on two points in making a decision: 1) home state of the children and 2) substantial conformity with Massachusetts law. As the children had been in Lebanon for only one month prior to the filing of the guardianship action, the Lebanese decision was not entitled to recognition in Massachusetts. In addition, Lebanese child custody law differs from Massachusetts. Under the Shiite religious law, a father who is a fit parent will have custody of male children. Fitness of the mother is not relevant to the court’s determination. Massachusetts law is based on the "best interests of the children." This standard requires a judge to consider the fitness of both parents and does not give an advantage to one gender. There are many factors a Massachusetts judge considers including which parent has acted as the homemaker prior to the breakup of the family. Lebanese law is more limited and does not allow for equal consideration to both mother and father.
The failure of the Lebanese Court to consider both parents equally and to consider the role as homemaker was found by the Massachusetts Court to not be in substantial conformity with Massachusetts law. As a result, the Massachusetts Court refused to recognize the Lebanese decision and made its own determination.
It should have been sufficient that the Lebanese litigation was commenced when the children had been in Lebanon for only one month. However, the Court went on to decide the case on the grounds that the foreign decision was not in substantial conformity with Massachusetts law.
Massachusetts law currently mandates that the court focus on the children and not the parents. This is what the court did in this case. This case should be viewed as a victory for children’s rights.

Saturday, December 18, 2010

When should a parent coordinator be used?

A parent coordinator is a neutral third person who is appointed by the court to resolve custody disputes between parents who no longer live together or are divorced. Resolving disputes by a parent coordinator is less expensive than court proceedings and much faster. Either party can "appeal" the decision of the coordinator to a Judge.
A parent coordinator is appointed by a Judge and the order will spell out the specific powers of the PC.  The cost of the parent coordinator is usually split between the parties and the PC process is usually conducted without involvement of attorneys.
A parent coordinator works best when both parties act in good faith. By the time a family becomes involved with a PC, the two parents have developed a history of not working together. In the worst cases, they are frequent users of probate court as they return to have the judge decide minor matters. Often, they tend to oppose each other in parenting decisions and have difficulty compromising. While they both may seek the best interests of the child, they are not interested in reaching an agreement with each other. In many cases, neither parent’s position is harmful to the child. However, the parents simply won’t agree with each other. In cases like this, the decision of the PC is not nearly as important as the fact that a decision is being made.
Each person who acts as a parent coordinator uses different procedures. A typical method is for the PC to meet the parties to get to know them. After that, contact is usually through email or telephone calls. Sometimes, the PC will request a meeting with the two parents to resolve matters. Frequently each parent will email their decision to the PC and the PC will email a decision back. This keeps the cost to a minimum.

Thursday, December 16, 2010

At what age can a child decide which parent to live with?

I am frequently asked by clients about when a child gets to decide which parent they will live with. Often, parents inform me that they know that the child gets to decide at a particular age. However, there is no simple answer.  There are many factors the court must consider when deciding child custody or visitation.
A judge will decide custody and visitation for a child based upon the standard of the best interests of the child. A child’s preference for custody is one factor that may be considered by the court. When the child is young, the court seldom pays attention to the child’s expressed preference. As the child gets older, the court gives increased weight to the preference. When the child is 14, the court must inquire of the child’s preference. This doesn’t mean that the Judge automatically does what the child wants. The Judge must still consider many factors in addition to the preference of the child. For many children, when they are 16 or 17, their preference may become so compelling that the court appears to decide solely on this one factor.

Saturday, December 11, 2010

Divorce, children & the holidays

Every parent should want to raise their children to lead happy, healthy lives as productive members of society. If possible, divorcing parents want their children to be free of the stress and strife caused by breakup of the family. Unfortunately, the holiday season has the potential to create hostility, turmoil, chaos, and stress. This can cause children to hate the approach of holidays that once heralded joy and celebration. Parents who are separated or divorced need to plan the holidays in a way that is designed to reduce the stress on the children.
Adults, even adults who are not divorced, experience stress around the holidays. We spend too much money, plan events, and eat too much. Sometimes, this stress and tension causes people to take their anxiety out on the people they live with. It is important to understand the extra pressures at this time and that everybody suffers from the holiday season.
During the holiday season, children often dwell on the breakup of the family. This is natural as holidays are filled with family traditions and reminiscing on holidays past. Children are encouraged by media that if they are good, their wishes will be granted. There are even television shows where children wish for their parents to reconcile and, in TV fashion, they get their wish. In real life, the parents don’t magically reconcile. Children who wish for this miracle are bound to be disappointed. Instead of a reunified family, children have to adjust to a visitation schedule where the holidays are divided between two sets of parents and their extended families. Children need help from their parents and families to adjust to the new reality. The parents should understand the children if the children are sad or depressed about the holidays. Discussion and understanding may help the children adjust to the breakup of their parents.
Parents should think about holiday traditions. Some traditions may be painful for the children as they remind the children of what has been lost. Other traditions need to be followed as the children continue to enjoy the events. Another choice is to create new traditions. If each household develops different traditions, the children can look forward to time with each parent.
Each holiday lasts for a limited time. If the holiday is to be split between the parents, that means that each parent should have half a holiday with the children. As such, holiday visitation can become an annual negotiation between the parents.
Children can either dread the shortened holiday time or rejoice with two holiday celebrations. The result can be an attempt by each parent to indulge the children with excessive toys. Parents may feel guilty about the breakup or attempt to bribe their children to win their affection. Such actions are harmful to both parents and children. Children will learn to exploit the parents and make the holidays an annual problem instead of an annual celebration. Sometimes, parents will each buy the same gifts for the children as there is no attempt to cooperate. A better approach is for the parents to cooperate. They should develop a plan for the holiday that is fair and allows annual switching of time. If possible, the parents should take the child’s wish list for toys and discuss dividing the toys or buying toys that are similar but not identical.
Parents should remember that while they are no longer married to each other, they will always be parents of these children. Both parents will want to spend time with their children on the holidays for the rest of their lives. When the children are adults, they shouldn’t have to choose which parent they will choose for the holidays each year. Hopefully, the children will be comfortable inviting both parents to share their home for the celebration. Parents who demonstrate an ability to cooperate when the children are young are more likely to enjoy the holidays with the children in the future.
Issues surrounding children and holidays can be complicated and difficult to resolve.  An experienced family law attorney can help families resolve the issues and increase the celebrations of the holidays.