Sunday, November 30, 2014

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.

Sunday, November 23, 2014

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.

Saturday, November 1, 2014

In Massachusetts, the odor of marijuana is the same as the odor of alcohol.

In 2008 Massachusetts decriminalized possession of one ounce or less of marijuana. Possession of more than one ounce is still a crime. Needless to say, it is not an unusual occurance for police to encounter automobiles with the smell of marijuana. In the past, the smell of marijuana was basis for a full search of the automobile and the occupants.

Two cases in Massachusetts make it clear that the odor of marijuana, burnt or fresh, by itself, does not constitute probable cause to search the car. In Commonwealth v.Cruz, 459 Mass. 459 (2011), the court held that the odor of burnt marijuana could not be the basis of a search of a car. More recently, in Commonwealth v. Craan, 469Mass. 24 (2014), the court reached the same result for fresh marijuana. Since possession of less than an ounce of marijuana is not a crime and smoking marijuana is not a crime, then the odor of marijuana does not mean that a crime is or has been committed under state law. Mere possession of small amounts of marijuana is still a federal crime but Massachusetts police officers are not permitted to search for evidence of this federal crime since the equivalent crime was decriminalized in Massachusetts.

Both decisions indicate that the smell of marjuana, by itself, does not mean that a crime has been committed. However, operating a motor vehicle under the influence of marijuana is a crime in Massachusetts just as operating under the influence of alcohol is a crime. The odor of marijuana is now equivalent to the odor of alcohol.

If a police officer stops a car and smells alcohol, this does not mean a crime has been committed. However, if the police officer detects symptoms of impairment along with the odor of alcohol, then the police officer may have probable cause to believe that a crime has been committed. If a driver has slurred speech, glassy eyes, exhibited irregular driving, or other symptoms of impairment, coupled with the odor of alchol or marijuana, then the officer may have reason to believe that the crime of operating under the influence occurred. In Massachusetts the odor or alcohol and the odor of marijuana are not treated the same. Odor, by itself, is not a reason to search a car. The odor with some indication of impaired driving can be sufficient reasons to search a car.

Any person who is arrested after a police officer smells marijuana and then searches a car should contact an attorney immediately.