Showing posts from June, 2011

Contempts and the right to counsel

In the case of Turner v. Rogers, U.S Sup.Ct. No 10-10 June 30, 2011, the Supreme Court addressed the question of is a court appointed attorney required in civil contempt proceedings for the collection of child support. The simple answer is sometimes yes and sometimes no. Probably, most of the time, court appointed counsel will not be required. It is my opinion that under present Massachusetts practice, court appointed counsel must be appointed. If Massachusetts makes some minor changes, counsel won't be required in the majority of cases.
The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in t…

Assents in Probate

Recently, I was asked to explain an assent form for the administration of an estate of a deceased person.  In the probate process, there are a number of actions of the Executor that require approval by the Judge. Our probate system generally works on the assumption that the parties to the estate have the most knowledge. If the parties (heirs) want to object to the actions of the executor, then the court will look at the actions with more care. Otherwise, the court can assume that everything is proper. So when a judge's approval is requested, the heirs and other parties are given notice of the issue and given an opportunity to approve or object. If all parties approve, it can expedite the process and decrease the cost. If a person objects, it may create an issue for the court to investigate and hold hearings to resolve. The third choice is to do nothing and let the court decide what action to take without guidance from the parties.
If a party is requested to sign an assent, there …