What rights do gay spouses have in custody battles?



For centuries, the law has struggled with issues surrounding rights of spouses in custody battles.  Of course, until recently, all of these battles have involved heterosexual couples. When a married woman gives birth, who is the father? What rights does a married man have to custody or visitation of young children? What rights does a husband have when children are conceived in a marriage through artificial insemination. All of these questions have been asked and answered for heterosexual couples. Now the same questions are being raised for same-gender couple who are getting divorced.

One of the first cases in Massachusetts to look at some of these issues for same-gender marriages has answered one of these questions. In the case of Della Carte v.Ramirez, question was raised of the rights of the non-biological parent in regards to a child born to the spouse through artificial insemination. The biological mother argued that her spouse had no rights to her child because she was not the father and had no biological connection and that the artificial insemination law, G.L.c. 46, § 4B provided no rights to the spouse because it used language about a child conceived with the “husband's” consent. In this case, the non-biological spouse was granted joint custody over the minor child. In doing so, the court made a ruling that the spouse was the legal parent of the child.

The result in this case established that for questions regarding paternity, custody, and visitation, there should be no difference between the law for heterosexual couples and the law for same-gender couples. In Massachusetts, marriage creates the same rights regardless of the gender make-up of the couple. Laws that use language that create rights for husbands should be interpreted to mean spouses. For Massachusetts, family court disputes should make no distinction based on the gender of the parties. Custody and paternity decisions should be based on concepts such as the best interests of the children without regard to the gender of the parents.

Paternity, custody and visitation in Massachusetts are complicated issues. An experienced family lawattorney can help parties understand the proper issues to raise in custody proceedings.   

Attorneys beware!! You could pay your opponent's attorney fees.

Every Massachusetts attorney, like attorneys across the country, have ethical duties when representing clients. Some of these duties protect the client and others protect our legal system. Lawyers, as officers of the courts, have duties to the legal system itself. One of these duties is that a lawyer shall not bring or prosecute a claim or defense that is frivolous. This duty is established in the Massachusetts Rules of Civil Procedure and in the Massachusetts Rules of Professional Conduct. A recent case shows the dangers of lawyers bringing frivolous claims.

In the case of Callahan v. Bedard, the parties were unmarried parents of a young daughter. Their relationship resulted in litigation in Probate and Family Court relating to support of the child. The parties reached an agreement in which a condominium was transferred to a trust with half of the value to benefit the daughter and half to benefit the mother. In consideration of this transaction, the father paid lower child support. The agreement was approved by a Probate Court Judge and incorporated into a judgment. About six months later, the father sought to vacate the settlement by claiming that Probate Court lacked jurisdiction to approve the agreement. His lawyer prosecuted the action to vacate in Probate Court and then in the Appeals Court.

The Appeals Court had no trouble rejecting the father's argument. In doing so, the Appeals Court found the father's appeal to be frivolous. As a result, they looked at the actions of the father's attorney. The Court found that the attorney should have appreciated the meritless quality of the father's arguments. The attorney and the father wasted the resources of both the mother and the Court. The Appeals Court imposed a remedy for such wasteful action on both the father and the attorney. The Court ordered that both the father and the lawyer (in fact his law firm) “shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs.”

Jointly and severally liable means that the mother can collect the money owed for attorney fees from either the father or his attorney. In fact, she can collect the entire amount from the attorney if she chooses and the law firm has sufficient resources. Furthermore, she may go back to Probate Court and ask the Judge to award her additional attorney fees for the frivolous action in Probate Court. After the opinion from the Appeals Court, it will be difficult for a Probate Court Judge to deny this motion.

This should be a warning to attorneys. Don't bring frivolous actions for clients. Don't waste the time and resources of the courts or your opponents.  Attorneys should always act in good faith.