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.   

My spouse cheated on me, can I sue for damages?

For most people, marriage means that the two spouses will not have sexual relations with any person except their spouse. Unfortunately, sometimes this right of exclusive sexual access is violated. When this occurs, there is a desire on the part of the innocent spouse to seek revenge against the third party who had sex with their spouse. Massachusetts law used to allow lawsuits for the harm to the marriage caused by the third party. The Common Law which was derived from old English law allowed lawsuits for “alienation of affection” and “criminal conversation.”

The tort of criminal conversation allowed the wronged spouse to sue the paramour for violation of the right of exclusive sexual access from the marriage. In other words, it was a lawsuit against the third party for sex with their spouse. The tort of alienation of affection was a lawsuit against the paramour for causing their spouse to stop having affections within the marriage. This usually resulted in a divorce as a result of the adultery. It was not uncommon for a lawsuit to allege both alienation of affection and criminal conversation.

In Massachusetts, when cheating occurs in a marriage, the wronged party can no longer sue for damages. Massachusetts General Laws Chapter 207, Section 47B prohibits lawsuits for both alienation of affection and criminal conversation. As a result, when cheating occurs in a marriage, the only recourse through the courts is an action for divorce against the spouse.

Cheating in a marriage can be devastating to the innocent spouse. Some couples manage to save their marriage after an affair. Others separate and end the marriage by divorce. When cheating occurs in a marriage, both spouses should consult an experienced family law attorney to determine their rights and understand divorce. Many people need to understand their rights in a divorce before deciding if they want to save their marriage.

What to wear and how to behave in Family Court

What people wear to court and how they behave in the courthouse can make a difference in how the court treats them.   Whether you are in court with a lawyer or as a pro-se litigant, how the court views your appearance and behaviour can affect your case.  This is true for all types of actions from contested divorce to a non-contested adoption.  You always want to make a good impression on the Judge.

Dress respectfully.

The Judge holds your fate in the palm of the Judge's hand. You should act as if you want to please the judge at every opportunity. I frequently describe the way to dress as the way people dress when going to church. It is a formal setting. No shorts, halter tops, or stained or torn clothing. Clothing that is very fashionable may be too revealing for a court setting. Clothes that are too sexy may offend a Judge.

Dress the part.

Don't cry poverty and wear an expensive watch or carry an expensive purse. If you are appearing in court requesting money from your spouse, you don't want to appear as a person who lives beyond their means. Wearing the latest fashions may help your spouse when they claim you are hiding money.

Act respectfully

A court room is a place where people come to argue. They argue with their spouse and with the Judge. However, argument can be respectful and still be effective. Don't interrupt people. Let every one finish what they are saying. Don't raise your voice. If you  your voice, you are likely to hurt your case because the Judge may limit your argument just to prevent you from getting more excited. Don't swear or call your opponent names. It is not uncommon for a judge to stop a person in the middle of an argument to admonish them to respect the other party.

You should address the judge as "Your Honor" or by  their name as in Judge [last name].  In some courts it is acceptable to refer to the Judge as "Judge" but in some courts this is considered disrespectful.  Some courts may also consider it to use the term "sir" or "Ma'am."  In other courts these terms are commonly used.  You should observe prior cases or ask a court officer to learn the customs of that court. 

Avoid Offensive behavior.

Offensive behavior is not limited to words. It includes all behavior in the courthouse. If a problem occurs in the courthouse, a court officer will learn about it and report the incident to the Judge. Remember that a court officer has the power to arrest people who don't behave. A Judge has the power to declare a person in contempt of court for actions done in the building.

While a court is a public building, you should avoid bringing a boy friend or girl friend to court. The presence of this person is likely to be offensive to your spouse and to the Judge.

Avoid drawing attention to yourself in the courthouse. Shut off your cell phone. Don't chew gum, eat food, or read a newspaper while waiting for your case to be called. While the Judge is in the courtroom, you should never talk unless the Judge gives you permission to speak. You don't want the Judge to ask what was so important that you had to speak and disrupt the court's business.

If you have questions about how to prepare and dress for court you should consult an experienced divorce lawyer for advice.