PLAY DATES, GUNS, AND OTHER SAFETY QUESTIONS

This morning on the news there was a story about an 11 year old who was shot in the face. The shooting was accidental and the gun was legally registered and owned. One child was at another child's home and they found the gun and played with it. The expected result occurred. One child pointed the gun at the other and pulled the trigger.

Asking questions about child safety before sending your child to a neighbor's to play with your child is extremely awkward and potentially offensive. However, the safety of your child should be paramount. Asking safety questions before entrusting your child to the care of another adult should be routine. If you screen potential babysitters before hiring them then you should screen other adults as well.

Gun Safety. Experts indicate that onein three families with children have guns in the house. Not all of these households take appropriate measures to keep children safe from guns. It should be routine practice for parents to ask: “Do you have guns in the house?” If the other parent does have guns, there should be follow up questions. “Do you have a gun safe?” “How do you keep the guns safe?” “Is the gun loaded?” Is the ammunition stored separtely? It is not enough to discuss the topic with other parents. You need to discuss this with your child. You need to impress the child with an understanding that toy guns are different from real guns. Children can't tell the difference so it is better to tell them that they can't play with guns in someone else's home unless an adult gives them the toy guns. Children should be told to assume that a gun is always loaded. They should NEVER point a gun at a person. They should not even pretend to point a gun. Children may not understand death but they do understand getting hurt and having pain. Children should be taught that if someone points a gun at them they could die, be injured, or suffer pain.

Dogs and pets. Most people consider their pet dogs to be friendly and safe to children. However, even friendly dogs can attack strange children who don't know how to interact with dogs. Dogs can be protective of household children. A playful interaction could be misconstrued by a dog as an attack on the child they protect. Sudden moves by a child can cause a skittish dog to bite. Some people believe that particular dog breeds are prone to dangerous behavior. Some dogs may need a supervised introduction to a child before the child is accepted by the dog. Teach your children how to interact with dogs to avoid injury. Dogs do not like hugs and kisses. Dogs should not be approached without permission of the dog's owner. Even if the dog is on a leash, the dog should not be approached. Never take food or toys away from a dog. Don't wake a sleeping dog. There are additional methods that can be taught to children to avoid injuries from dogs.

Other issues: Parents may want to ask about other concerns. Swimming pools can pose a danger to children. Some parents are concerned about children being exposed to cigarette or cigar smoke. You may want to ask if a babysitter will be watching the children. How old is the babysitter? Does the babysitter carry a gun? Does the babysitter smoke?

Taking the time to ask appropriate question to protect your child is not a social issue it is a matter of child safety. Child safety should take priority over concerns of offending other parents. Taking steps to avoid injury is better than a child suffering an injury and then needing the services of an attorney.

The court didn't give me custody of my children. Am I a bad parent?

In most custody cases, both parents are good parents who can take care of the children. A judge has to decide custody between two good choices. In most Massachusetts custody battles, custody is not decided on the basis that one parent is bad. The standard applied by judges is known as the best interests of the child standard. In other words, the judge has to decide which custody arrangement is better for the children.

Judges will frequently look at the following questions when considering custody:

• When the parties were together who was the primary custodial parent?
• Which parent has bonded better with the children?
• Which parent works more hours?
• Which parent prepares food, cleans the house, bathes the children, puts them to bed?
• Which parent takes time off from work for a sick child or doctor's appointments?
• Once the parties have separated, do both parents have adequate housing for the children and sufficient plans to care for the children?

There are other facts that a judge may consider.

After a judge considers these factors and others, the judge will then make a decision about custody. Frequently the judge has to choose between two good parents. Not receiving custody does not reflect anything negative about your parenting skills. Custody battles can be very complicated. An experienced divorce lawyer should be consulted before you engage in a custody dispute.

Can an out of state divorce decree be modified by a Massachusetts Court?

In a recent case, Cohen v. Cohen, the Massachusetts Supreme Judicial Court ruled that Massachusetts had no jurisdiction to modify a California divorce decree to order college expenses and child support. This case is easily misunderstood as the decision is limited to a particular type of case.

In the Cohen case, the parties were divorced in California and the Wife and child continued to live in California. The husband moved to Massachusetts. This meant that the Wife had to use the Massachusetts Courts to enforce the California divorce judgment. She could have hired a Massachusetts lawyer to collect her child support or she could have used the California child support agency to collect the money. She selected the California child support agency.

Every state has an agency which collects child support for residents of the state. In the Cohen case, the California agency initiated an interstate child support collection action under the Uniform Interstate Family Support Act (UIFSA.) Both Massachusetts and California (and probably all other states) have enacted UIFSA into their state law. While it was California in this case it could have been any state. Under UIFSA, California asked Massachusetts to file a case to enforce the California divorce decree and California law. An action was filed in Massachusetts by the Department of Revenue (DOR.) to enforce the judgment. While the Massachusetts Court had all of the powers under Massachusetts law to enforce the judgment, it had no power to modify the judgment. In the Cohen case, the divorce decree made no provisions for college education or medical bills of the child. The Massachusetts Court was unable to make any orders relating to payment of college education or medical bills.

This case doesn't mean that the Wife in the Cohen case could never ask a Massachusetts Court to modify the California Judgment. It only means that she couldn't modify under UIFSA. She could have hired a Massachusetts lawyer to enforce the California decree and modify the judgment. Had she proceeded in this manner, she would have enabled the Massachusetts Court to use all of its powers and authority including the power to modify the California judgment. If the Wife had filed an action in Massachusetts it would have been very expensive. She would have had to pay for a Massachusetts lawyer instead of having DOR represent her for free. She would have had to travel to Massachusetts for the trial and possibly for a pre-trial conference instead of staying in California. Of course, there is no guarantee that a Massachusetts court would apply Massachusetts law and modify the judgment. Instead, the court could have ruled that the Wife must file a modification in California or that Massachusetts would apply California law. As a general rule, using UIFSA for interstate child support enforcement is a better choice.

Interstate child support enforcement is a complicated area of law. If you have a case that crosses state lines you should consult an experienced family law attorney.

What is the legal residence of a child of divorced parents?

Many people who get divorced live in different towns from their ex-spouse. They will sometimes choose between the two school systems and send their children to the better school. This means that the better school system will have more students and incur more costs. If a child of divorced parents requires additional services due to special needs, the cost can be substantial. As a result, many school systems try to exclude some students under the argument that they don't reside in the town where they attend school.

According to the law, adults are allowed one domicile or legal residence. Domicile is the place where a person intends to permenently reside. There is a long history of case law that sets forth rules to , determine the residency of adults. The law is much simpler as it applies to children: Children have the domicile of their parents. If their parents don't live together then children can have two domiciles. If the parents are divorced and the parents have joint legal custody then children will have two domiciles. This is true even if they never sleep at one parent's home.

In a recent case, the Town of Wayland formulated a rule to determine if children of divorced parents can attend school in Wayland.  Ames v. Town of Wayland, Middlesex Superior Court (No. 14-6717) (August 13, 2014.) The rule was called the “pillow count” rule and required children to sleep in Wayland for at least three out of five nights. When this rule resulted in a child of divorced parents becoming excluded from the Wayland schools, the child's parents appealed. A Superior Court Justice held that the child may attend the Wayland schools despite the fact that he lived in Wayland only three out of fourteen nights.

In Massachusetts, the Department of Education has always ruled that children can attend school in the school system where one of the parents reside and that the decision belongs to the parents and not the school system. In my practice, I have encountered this problem from time to time. I have found that schools generally drop their opposition when faced with the threat of litigation. Unfortunately, I found that parents have to hire attorneys to make the schools follow the law.

When a couple gets divorced and they have school age children, they should consider the choice of school system at the time of divorce. If you are getting divorced and have school age children, you should consult an experienced divorce attorney who understands the options of school choice.

Don't fall for this child support trap!

It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts Child Support Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mother's. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of financial agreements by a judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.

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.   

Should a Stay-At-Home parent have a post-nuptial agreement?

A person who chooses to stay at home to raise children usually makes this decision after consultation with their spouse. The decision is made in furtherance of the partnership called a marriage. The stay-at-home parent assumes that the marriage will last until one of the parties dies and that they won't suffer financially as a result of leaving the work force. Unfortunately, many marriages are terminated by divorce and the stay-at-home parent finds themselves unable to maintain their standard of living after divorce.

When a stay-at-home parent returns to the work force after years of child raising they frequently find that they are considered unqualified for their former occupation. They may need to return to school to refresh their skills. When they do find work, they frequently start with entry positions instead of a job comparable to their peers who never left their occupations.

Prior to 2011, divorce judges frequently compensated such stay-at-home parents with alimony awards designed to maintain their standard of living. However, in 2012 Massachusetts enacted an alimony reform law that can result in loss of security for the stay-at-home parent. The alimony reform law contains, among other provisions,1) a limitation preventing the award of alimony if child support is paid and the combined income of the parties is less than $250,000.00; 2) time limits for the period of alimony when alimony is granted; and 3) a termination of alimony at retirement age. Given the changes due to the alimony reform law, it is wise to plan for the potential of a divorce.

An agreement between the spouses can provide security for the stay-at-home spouse despite the changes caused by the alimony reform law. If the parties create such an agreement before marriage, it is called a pre-nuptial agreement. Many couples don't anticipate such situation before marriage. There is an alternative: a post-nuptial agreement. A post-nuptial agreement is an agreement between the spouses that is like a pre-nuptial except that it is executed after marriage. Massachusetts has joined the growing number of states that allow post-nuptial agreements in some circumstances. An agreement between the spouses which results in one spouse leaving the work force to raise children should be valid as a post-nuptial agreement in Massachusetts.

A person who is contemplating leaving work to raise children should consult an experienced lawyer about a pre-nuptial or post-nuptial agreement to compensate them for the anticipation of not working as a result of their decision.

Source: “Dostay-at-home moms need a 'postnup'?” by Jeff Landers published at Today.com

Parent coordinators help parents avoid court.

When parents separate or get divorced, they frequently have difficulty cooperating with the other parent. The hostility between the parents can make every decision concerning children a battle. Frequently, this inability to cooperate results in litigation as the only resolution is a decision by a judge. A low cost and quicker alternative to litigation is a parent coordinator.

A parent coordinator is a third party who makes decisions concerning children when the parents can't agree. It is a form of alternative dispute resolution but it is not created by state law. In Massachusetts, it is created by an agreement of the parties. In a written agreement, typically a divorce separation agreement, the parties spell out the powers of the PC and the rules by which the PC will function. The agreement is approved by a Judge and becomes an order of the Court. The agreement allows for either party to appeal a decision from the PC to a Judge. Usually, the PC has an initial interview with the parents and then resolves issues utilizing telephone calls and emails. While the PC charges by the hour, they usually charge less than an hour for most decisions.

Parent coordinators can help the parents make better decisions, save money, and eliminate stress. Consult an experienced family law attorney to incorporate PC provisions in your parenting agreement.

How to make a divorce less stressful for children.

Divorce is one of the most stressful events in a person's life. The stress level is comparable to the death of a spouse. It is just as stressful for children of a divorcing couple. Children don't always understand divorce and its causes. They interpret the events through a filter of a lack of understanding. Even if the causes of the divorce are explained to children, they may blame themselves for their parents separation. Here are some suggestions on how to help children through this difficult time:

1. Therapy—Find a therapist that is experienced with children of divorcing parents. Children can benefit from having a person they can talk with and not worry about using the information against a parent. A professional may help a child understand the events and address any guilt the child may have.
   
2. Avoid Divorce Discussions—A divorce can be all consuming to parents. It is natural to want to discuss this with friends and relatives. However, children seem to hear all conversations and telephone calls that occur in the house when they are present. Even when the children are suppose to be asleep, they seem to overhear conversations. Take the conversations out of the house or make sure that the children are out of the house. If you are holding discussions with your spouse, make a date to meet at a coffee shop. This prevents the children from hearing and the public meeting place may cause the spouse to put on “public manners.” When I call clients to discuss divorce issues, I frequently start by asking if it is a good time to talk.
   
3. Behave calmly--Children sense when their parents suffer from stress and anger. If you can, remain calm and collected when in the presence of the children. The calmer you are, the more reassuring you are to the children.
   
4. Avoid conflict—Fighting with your spouse creates stress for the children. The children won't understand the fight and won't know what to do. They may feel forced to choose between the two parents. Try to be polite when talking to your spouse. Keep your fights to appropriate arenas like email, therapists, and court.
   
5. Talk to your children—Tell them that they are not responsible for the divorce. Explain that this is strictly between the adults and the reasons are adult issues that you won't discuss with the children. Explain to them how the custody and visitation will work. Reaffirm that they won't be losing either parent. However, not all issues should be discussed with the children. Avoid talking to the children about the financial issues in the divorce.
   
6. Seek consistency and stability—Children thrive when they know what to expect and what is expected of them. To the extent possible, try to avoid disrupting children's lives. Work out a shared parenting agreement that takes into account the child's needs and desires while giving both parents reasonable parenting time. Be flexible to accommodate events that are important to all parties including the children.
   
7. Don't put the children in the middle.-- Avoid sending messages or passing items through the children. When you pass messages or support checks through the children, the children become associated with the message. A person who resents weekly child support blames the children for the weekly financial drain. Use email and telephones for messages. Pay support obligations by mail or bank by check so that there is no face to face exchange. If the child delivers an unwelcome message, there is no ability to respond and argue. Email and telephone both allow responses.
   
8. Agree on house rules—One of the first things that children learn in a separated house is how to play one parent against the other. They manipulate to change the rules of the house. Things like bedtimes and homework suddenly are more flexible. Children will try to sell their affection for bending of the rules. Don't give in to the temptation. Avoid being the fun parent as your primary focus. Make sure both parents agree on the rules of the house and don't change them without consulting the other parent.
   

Divorce has a major impact on children's lives. Both parents should cooperate to reduce the stress on the children. The joint goal should be to raise the children to be productive adults who can have significant relationships as an adult. Don't sacrifice the long term goal for short term rewards. An experienced divorce attorney can help guide when raising children in a divorce.

Communication with your ex-spouse. Use Email.

If a couple have children, their relationship doesn't end when they get divorced. They will continue to interact for the rest of their combined lives. The worst way to communicate is in front of the children. Parents who communicate in person tend to do so when they exchange the children for visitation. The children are exposed to every argument and every angry word. Children pick up on these and are likely to have adverse reactions. Even if the children don't show a reaction, they are likely to suffer emotionally.   If the parents communicate by telephone, children are likely to hear one side of the conversations. It is better to keep the communications entirely private from the children. E-mail does this.

Email offers many advantages to other forms of communication. E-mail is private. It allows a greater ability to think before responding. A person who is prone to spontaneous statements can reflect before writing a response. Email can be printed and produced in court. This provides a protection against a party who is unreasonable when negotiating but denies it in court. The ability to produce Emails in court also provides a protection against swearing and threats. With E-mails, the parties can discuss the children without exposing the children to the conversations and still make the necessary arrangements.

If the parties improve their communications, they are likely to avoid problems that will cause them to return to court.

After divorce don't allow children to become master manipulators

As a general rule, parents, after divorce, don't communicate well with each other. If they could communicate well, they probably wouldn't have gotten divorced. This lack of communication creates a vacuum. Just as nature abhors a vacuum, so do children. Unless the parents act to avoid problems, children will fill the vacuum with manipulations.

A typical manipulation could occur around bed time. While the couple was together, the child's bed time was 8:30 P.M. One night, at Dad's house the child may ask “Why do I have to go to bed at 8:30 when Mom lets me stay up until 9?” Of course, Mom doesn't but Dad doesn't know that. Dad feels that he has to compete with Mom for the child's affections and says that the child can now go to bed at 9:00. The child then tries the same thing with Mom with similar success.

Of course, the answer is parents should communicate with each other and avoid competing for affections. A simple response to a child could be “I'll check with your mother and decide after we talk.” The child, knowing that the lie is about to exposed may simply fall back on “Never mind.” Of course, the best way to handle this is for parents to agree to check with each other on all such matters.

Another way of handling this is to explain to the child that there are two households with two sets of rules. So when the child explains that in Mom's house the child has a TV in the bedroom and can watch it until the child falls asleep, a good response is that there are two sets of rules. In Dad's house, there won't be a TV in the bedroom.

Can a parent move with children to another part of Massachusetts?

If a party seeks permission from a judge to move to another part of Massachusetts, a Judge will consider the request under the same standards that apply to removal out of Massachusetts. The Court can prevent the move "where the relocation would evidently involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." The Judge will balance the negative effects on visitation against the benefits to the children for the move. Of course, the Judge can only make such rulings if the parent seeks permission before the move or the other parent brings an action to prevent a move. In the absence of a court order, there is nothing to prevent a parent from moving within Massachusetts.

When does a child get to choose which parent they will live with?

A common misconception in Massachusetts is that children can decide custody at age 14. This leads parents to try to influence or bribe the child to gain an advantage in a divorce. Legally, a child can decide which parent will get custody at age 18 when the child is an adult. Before that, as a general rule, children don't decide custody. If the child is of "suitable age" the Judge will probably have the child interviewed to determine the child's wishes. However, this is not the determining factor. A judge should decide custody based on the best interests of the child and not the child's wishes. Attempting to influence the child can backfire as a judge may decide that such attempts are harmful to the child.