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.

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.

1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
   
2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
   
3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
   
4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
   
5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
   
6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
   
7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
   
8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
   
9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
   
10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
    
11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.
    

Divorce and Children's Religion in Massachusetts

When parents with different religions divorce the choice of religious upbringing of the children can be a major issue. A recent case from the Massachusetts Appeals Court makes agreement on this issue much more difficult.

In the case of Lapat v. Lapat (decided on April 20, 2013), a Jewish husband and a Christian wife settled their divorce by a comprehensive separation agreement. They specifically addressed the religion of the children. They agreed that the children would be raised primarily in the Jewish tradition and prohibited the mother from enrolling the children in any form of Christian education, organizations, or religious instruction. The mother then claimed that this provision violated her constitutional right of Freedom of Religion. The father sought to prohibit the mother from exposing the children to her Christian religious practices and beliefs. Instead of focusing on the language in the agreement that says that the children would be raised primarily in one religion, the Court ruled that the entire clause was unenforceable absent a showing that exposing the children to the mother's religion would cause the children to suffer substantial injury.

The use of the word primarily means that the children should be exposed to both religions. The father having agreed to expose the children to both religions should not be able to limit the exposure after the divorce was final. Instead the Court imposed a standard that seems to prevent the parents from agreeing at the time of a divorce on religious choice for their children. In the decision, the Court rewrote the religious provision of the divorce agreement to require the parents to agree on religious education, events, and practices for each and every choice. This seems to be the worst possible option for the family. Instead of having preset rules that the parties established by agreement, the parties will the opportunity to argue and litigate over every religious choice. While the Court should not give preference to one religion over the other, the Court can enforce a provision where the parents agreed on religious preference. Reducing issues for parents to litigate can only benefit the children in the long run.

It is possible that Courts in the future may treat this case as limited to the unique facts of this case. Until such time as the Courts give further guidance on this issue, I suggest the following:

1. When agreeing on religion, parents should agree to specific provisions. They should specify the religion for the children.  Significant life events as viewed by the religion of choice should be addressed. Children's participation with parents in religious holidays should be detailed. This should include details for both parents' religions and not just the children's religion. The agreement should describe how the parent with the different religion from the children can practice their reiligion in their home when the children are present.
2. The agreement should recite how significant religion is to the welfare and well being of the children. It should also state if the parents agree that training and education in another religion is harmful to the children. If the parents, before divorce, raised the children in only one religion or primarily in one religion then the agreement should recite the history of the children's religion.
3. Finally, the agreement should acknowledge that the parties have the right to change their religious beliefs and to change the religious provisions of the separation agreement. However, neither parent has the right to fail to comply with the terms of the agreement without the agreement of the other parent or a modification of the agreement. The separation agreement should also set forth a procedure to modify the religious provisions of the agreement. This modification may be by court order, mediation, arbitration or a parent coordinator. Absent such a modification each parent shall comply with the terms of the agreement. This should recognize freedom of religion but also recognize the need for stability in parenting and the need for joint action rather than the right of one to implement unilateral change.

Parties should draft choice of religion provisions in separation agreements with care. An experienced Massachusetts divorce lawyer should be able to draft provisions with specificity and clarity that may survive appeals.

Can you spy on your spouse with technology?

Since the creation of the institution of marriage, some people have suspected their spouse of cheating. One of the natural instincts following such suspicions is to try to prove the adultery. An age old method of such proof is to hire a private investigator to follow the spouse and obtain proof. This is a costly undertaking. If the investigator fails to find proof, there is still doubt as the spouse may commit adultery on a day when the investigator wasn't following. Today, some people turn to technology to confirm the suspicions.

One of the easiest ways to spy on the spouse is to merely look at the spouse's computer and cellphone. Looking at emails, text messages, or listening to voice mails may give the confirmation desired. Sometimes the spouse looks at the computer or cellphone innocently and learns some information. An example is that the spouse's cellphone may be sitting on a table when it rings and a picture of the paramour appears. Such accidental discoveries are not spying as the term requires intentional conduct. The intentional perusal of the spouses' cellphone without permission is spying and may be illegal. However, some spying may be permitted as the entire family may share one computer or cellphone. Spying is not permitted when a spouse has exclusive use of the electronic device. In fact, such spying may be criminal conduct that can be punished by fine or imprisonment.

It is clearly criminal in Massachusetts to record the voice of any person without that person's permission. G.L. c. 272, § 99. If two people have a conversation, both must consent before the conversation can be recorded. Producing a tape in a divorce trial of a conversation that was secretly recorded may be a greater problem for the spouse who made the recording than the spouse who was recorded.

Installing spyware on a computer to capture keystrokes can also be a criminal act. There are at least three state laws that may apply to such spyware. G.L. c. 266, § 120F prohibits unauthorized access of a computer system. Spyware on a spouse's exclusive computer should be considered a violation of this statute invoking criminal penalties. G.L. c. 272, § 99 prohibits the interception of wire communications as well a oral communications. Although no reported case has attempted to apply this law to computer spyware,  the purposes of the law indicate that it should include such communications. Furthermore, the law prohibits owning a device that is capable of such interception. Computer spyware has no purpose other than to intercept computer communications. As such, possession of such software is probably a crime in Massachusetts. The third criminal law that can apply to computer spyware is the stalking law: G.L. c. 265, § 43. This law punishes a pattern of conduct or series of acts of “spying” on a person combined with a threat of harm. While not every marriage breakup has threats, they frequently do. As a result, an argument can be made that computer spyware combined with a threat of harm meets the definition of stalking. Similarly, using a GPS device to track a spouse may be stalking or even an unathorized use of a computer if the GPS device is found in the spouse's cellphone or auto anti-theft device.

Spying destroys trust and can destroy the marriage even if adultery ne­ver occurred. If the spying fails to prove cheating, the innocent spouse may feel the marriage is over because of the lack of trust. A better way to address suspected adultery is to do so in the context of marriage counseling. Of course, therapy is designed to improve the marriage and not obtain evidence of adultery for a court proceeding.

As a general rule, proof of adultery does not play a significant factor in a divorce proceeding. While Massachusetts Judges will listen to proof of adultery, they seldom use evidence of adultery as a factor in deciding how to terminate a marriage. If a party attempts to prove adultery by evidence obtained by spying on the spouse, most judges will exclude the evidence and not consider the proof. Judges refuse to consider such material as doing so would encourage such illegal acts in the future.

The result of such spying may be forcing a break up of the marriage, criminal charges against the person who obtained the evidence, and failure to use the evidence in court. In addition, obtaining actual proof of infidelity may cause far more emotional distress than mere suspicion.

Understanding federal and state is essential to knowing your rights. If your marriage is having difficulties you should consult an experienced lawyer before you start spying on your spouse. A lawyer can help you understand your rights and options before you make a mistake and commit a criminal act.

Spying on a spouse

When a marriage deteriorates, some people decide that they should spy on their spouse to either help them decide if they should get  a divorce or to gain an advantage in a divorce. Many people think that proof of adultery will gain them an advantage in a custody battle or a financial battle in a divorce. In Massachusetts and other states, proof of adultery seldom gains any advantage at all. I once heard a Judge state that everybody commits adultery now and nobody cares anymore. While it may not be true that nobody cares, it does appear that Judges in Massachusetts ignore proof of adultery when deciding divorce cases. Regardless of the view of the Court, some parties in a marriage continue to believe that it is important to spy on their spouse.

A recent article in the Wall Street Journal describes some instances of spouses spying on spouses and the technology available. Generally, the technology allows the sound recording of telephone calls and oral statements, video recording of video telephone calls and actions of people, recording of use of computers and cell phones, and gps tracking of cars and cell phones. All of the actions can be considered illegal and possibly even criminal. The Wall Street Journal article describes people who went to jail for spying on a spouse.

Massachusetts prohibits the unconsented recording of a person's voice. G.L. c. 272, § 99. The law covers recordings made from telephone calls or any other wire transmission. Violation of this law is a crime that can be punished by imprisonment. Federal law also punishes the unauthorized recording of a person's voice or telephone call. 18 U.S.C. § 2511.

Accessing someone's computer can be a crime under Massachusetts law and Federal law. The Massachusetts law, G.L. c. 266, 120F, has not been interpreted in a divorce setting. However, the intent of the law is to spying on another person's computer use. The Federal law, 18 U.S.C. § 1030, also makes it a crime to access someone's computer without authorization. Cell phones are small computers. I think that both state and federal laws can be used to prosecute a spouse who records the usage of another's cell phone.

Placing a GPS tracker on a spouse's car may be considered stalking. In Massachusetts, three or more instances of following another may be considered the crime of stalking. G.L. c. 265, 43. Following a spouse by a GPS tracker should be considered stalking as it has in other states.

In addition to potential criminal liability for spying on a spouse, Massachusetts law creates a right of privacy. G.L. c.214, § 1B. While this right is enforced through civil actions and not criminal, it should act as a deterrent to spying on a spouse. If the purpose of spying is to obtain an advantage in a divorce, violation of the right of privacy may cause a Judge to award money to compensate the victim spouse for the unlawful spying actions. In addition, Judges don't want to reward unlawful behavior and usually prevent the use of any information obtained by unlawful spying.

Usually, spying in a marriage hurts the person engaging in the spying behavior and not the victim who is subject to the surveillance. Divorce lawyers should discourage such behavior and advise clients to avoid the temptations to spy.