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 generally inquires 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.

Sunday, November 28, 2010

A family law case is now before the United States Supreme Court

It is rare when the United States Supreme Court hears a child support case. However, there is a case before the Supreme Court now involving such an issue. In the case of Turner v. Price, Docket No. 10-10, Turner was incarcerated for one year for non-payment of child support. The South Carolina Court that heard the trial did not make a finding that Turner was indigent and did not appoint an attorney to represent him before sentencing him to jail. If Turner was sentenced in a criminal case, he would have had a court appointed attorney. However, in a civil contempt case, under South Carolina law, he didn’t qualify for a court appointed lawyer.
It doesn’t make any difference to a person if they are jailed in a civil case or a criminal case. Jail is jail either way. Violation of a court order may result in a case for civil or criminal contempt. The court has the power to jail people for violation of court orders. Some people violate court orders and fail to pay child support because they can’t afford to pay the money. Others violate court orders and fail to pay child support because they choose to not pay the money. Clearly some people need the threat of a jail sentence or even time in jail as an incentive to pay child support. Frequently, the determination of imposing jail time is not known until the end of the hearing.
The case of Turner v. Price raises the issue of the constitutionality of imposing a jail sentence without the benefit of an attorney to defend the person before jail is imposed. Just as in criminal cases, the result of the civil contempt may be different if a lawyer is involved. This is an important issue as nobody should go to jail without due process and an opportunity to present a defense. These are not rights guaranteed in criminal cases. These are rights guaranteed to Americans under the United States Constitution. On the other hand, the state must pay for court appointed attorneys. If the defendant can’t afford an attorney and the state must provide one then the state must also pay for the attorney. As the states are cutting budgets and court systems are experiencing large cuts in their budgets, it is difficult to argue that they should allocate money to pay attorneys to represent parents who won’t pay child support. I suspect that any ruling on this case will extend to all civil contempts including contempts for non-payment of alimony and any other violation of a court order.
This case bears watching but we may be disappointed in the result. The court ordered the parties to brief the issue of incarceration for civil contempt without a lawyer and another issue. They also ordered the parties to brief the issue of whether the Supreme Court has jurisdiction to hear this case. If the court finds no jurisdiction, they won’t may any orders on the other issue. The briefs in this case are due to be filed in January and February, 2011.

Sunday, November 21, 2010

Do-it-yourself divorce kits

There are advertisements for legal services such as do-it-yourself kits for divorce, wills, powers of attorney, bankruptcy, etc. These kits are usually sold by non-lawyers. People should not use these kits or services of this nature. Decisions in legal matters of this nature have long lasting consequences. Failure to include all issues or failing to address an issue properly is likely to have unfortunate and expensive results. A divorce agreement should be custom designed for each couple and tailored for the state of the divorce. Kits of this nature may be general kits that accommodate most states but not all and accommodate some couples but not all. People should avoid kits and advice from non-lawyers.  Before finalizing an agreement from a do-it-yourself kit, you should consult an experienced divorce attorney.

Saturday, November 20, 2010

Single parent adoption

A recent case in Massachusetts addressed an issue that is frequently raised by parents who don’t want to pay child support and gave the same answer as always. In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the father of a child wanted to relinquish parental rights so that he wouldn’t pay child support. Whenever this issue was raised in the past the court always refused to terminate parental rights. That is because the focus is the child and not the parent. Every child deserves two parents and every child deserves child support. As a result, the courts have always refused to terminate parental rights unless another adult sought to adopt the child.
In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the mother sought a single parent adoption by which the father would relinquish all rights and duties towards the child and the mother would become a single parent. This is just another attempt to terminate parental rights of the father but with a twist. In this case, the court reached the same result and denied the single parent adoption. Parents may not bargain away their children’s rights to support from either parent.

Saturday, November 6, 2010

Guardianships and children living with relatives.

Currently, there are many families that don’t follow the traditional pattern of two parents with children. Frequently, children are living with friends and relatives instead of their parents. When this happens, the parties should go to court and get a guardianship so that the custodial adults will have all the rights to act for the children as parents can. Although guardianships sound like a permanent loss of parental rights, this is not correct. Guardianships, like all orders and judgments relating to children, can be changed if the circumstances change. The natural parent wanting the child to return to the parents home may be sufficient to terminate the guardianship. A guardianship has many advantages including education, insurance, and medical care.
The child can go to school from the home of the custodian. Towns spend money for every student in the school system. They frequently oppose enrolling students who live with relatives unless there is a guardianship.
The custodial parent can enroll the child in their family health insurance policy with a guardianship. This can be an important issue as even routine medical visits incur large bills without insurance.
With a guardianship, the custodial adult can give permission for medical treatment and activities. Other than emergencies, doctors shouldn’t treat children without parental consent. Schools won’t let children go on field trip or play sports without parental consent. Other organized activities won’t allow participation without permission. While the natural parent may be available to grant permission, a guardianship gives the custodian, the ability to deal with all of these issues.
If you have questions about children living with relatives consult an experience Massachusetts Family Law Attorney.

Wednesday, November 3, 2010

Health insurance for ex-spouse

Massachusetts has universal health insurance. In a divorce, this means that the judge will look for ways to provide health insurance for the entire family at the lowest cost. If there are children of the marriage, the likely result is a family health insurance policy that covers the entire family including the ex-spouse. In Massachusetts, an ex-spouse is treated as a current spouse for health insurance as long as neither spouse has remarried. People frequently think that the obligation to insure the ex-spouse means that a new spouse will be uninsured. This is not correct. Once one of the parties has remarried, the ex-spouse is not eligible for insurance coverage under the family health insurance policy. Of course, before any decisions are made about insurance coverage, the divorce decree and agreement need to be carefully reviewed.

Thursday, October 28, 2010

How much Parenting Time will result in a reduction in child support?

I received a question from a parent who has the child for about one-third of the time. The parent was asking about reducing child support based on the amount of parenting time spent. Child support in Massachusetts is controlled by the child support guidelines. These guidelines specifically address parenting time. According to the guidelines, the standard split of parenting time is two-thirds with the primary parent and one-third with the other. If the other non-primary parent has significantly more than one-third parenting time, then there should be a reduction. Generally, this means that the parenting time should approach a 50/50 split. Of course, the opposite argument can be made as well–if the non-primary parent doesn’t spend much time or any time with the child, then an increase in child support is warranted.

Sunday, October 24, 2010

Divorce Insurance

A company is now offering divorce insurance as protection against your marriage falling apart. While I don’t think this product can legally be sold in Massachusetts, it is a new concept that is worthy of discussion. Perhaps, someday, it will be legal to buy this in this state.
In Massachusetts, all insurance must be licensed. I looked at the Division of Insurance web site and didn’t find this listed. As a result, I think that they are not licensed in Massachusetts and can’t sell this insurance. I suggest that Massachusetts citizens check with the Division of Insurance before looking at this product.
Divorce insurance is being sold by SafeGuard Guaranty Corp., an insurance company based in North Carolina. The product is called Wedlock Divorce Insurance. The website does not indicate that they are limited to sales in certain states.
The insurance pays a lump sum in the event a policy holder gets divorced. The amount of the payment is based on the policy purchased.  The amount paid is not related to court orders for support or property division. The coverage is sold in units of $1,250.00 based on a monthly premium of $15.99. As an example, assume that a person purchased 10 units at a monthly cost of $159.90. If a divorce occurs, the company will pay the insured $12,500.00. There is a four year exclusion period so if the divorce occurs within four years, nothing is paid.
The biggest problem I see is that a Massachusetts court is likely to view the insurance policy as another asset subject to division. This would defeat the purpose of the insurance. Of course, insurance is based on the concept that the insurance company makes more money than it pays out. If you can save the money each month, you are better off.
I think this is an interesting idea but not a product than can benefit most people in this state if it can be lawfully purchased.