The COVID-19 public health emergency has ground many activities to a halt, including the vast majority of matters at Probate and Family Courts across the Commonwealth of Massachusetts. Although the impact of court closures has been felt most strongly in the paucity of hearings, other departments, like drug testing, lawyer of the day programs, conciliation and mediation sessions, have also been impacted by the requirements of state and local orders and advisories.
The vast majority of divorce cases are resolved not by trial, but by the parties agreeing upon and submitting a Separation Agreement to the Probate and Family Court for approval. One of the more confusing elements of a Separation Agreement for many clients is the fact that certain provisions of the agreement are deemed to "merge" with the Judgment of Divorce and other provisions are deemed to "survive." Although these terms may be unfamiliar to non-attorneys, the distinction between the two is not particularly complex.
Recently in Jouret v. Buteau, Docket-18-P-68 (Mass. App. Ct. April 11, 2019) (Memo and Order Pursuant to Rule 1:28), the Appeals Court of Massachusetts vacated those parts of a modification judgment that eliminated Father's parenting time and prohibited his contact with the children, holding that the trial court should not have given the children's preference "decisive weight."
A parent coordinator can be a blessing in high-conflict divorce or support cases involving parenting and custody of a child or children. Occasionally, parents, for one reason or another, are unable to communicate effectively about parenting time, extracurricular activities, or expectations of each other or the children. At other times, parents simply may not see eye-to-eye about what is in the best interests of the children. These disagreements, or differences as to how to communicate, can have serious repercussions on the stability of the children and make it difficult, if not impossible, to co-parent. A skilled parent coordinator can be a very valuable resource in addressing these issues and helping to resolve conflicts.
The Supreme Judicial Court recently ruled, in a much-anticipated decision, that a parent has a right to court-appointed counsel when a third party is petitioning for permanent guardianship over his or her child. The decision in the case, the Guardianship of V.V., is of particular note because the SJC ruled on the underlying issue - whether a parent has a right to counsel in guardianship cases - despite the fact that the decision affecting the parties was moot, as the mother has succeeded in removal of the guardianship. It is highly unusual for courts to rule on cases that are moot. However, the court stated that, due to the importance of the issue, it was incumbent upon the court to exercise its discretion and provide an answer to the central question.
Helping to prevent possible international parental child abductions is the U.S. Department of State's Children's Passport Issuance Alert Program (CPIAP). CPIAP provides a mechanism for a parent(s) and/or legal guardian(s) to be contacted and alerted when someone submits a passport application for a registered child.
A Massachusetts state senator has filed a bill that could prohibit a divorcing parent from having sex in his or her own home. The bill states: "In divorce, separate, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts."
In a recent custody case we litigated in the Massachusetts Probate and Family Court, a case in which the parties' minor child is a smart, articulate, athletic and very talented 11-year-old boy, an excellent resource published by the Association of Family and Conciliation Courts ("AFCC") called "Planning for Shared Parenting: A guide for Parents Living Apart" became a vital guide for the parties in formulating an effective parenting plan that both parties agreed is in their pre-teen's best interests. Formulating pre-teen parenting plans can be quite challenging. This particular AFCC guide articulates a number of important issues that the parties to a custody case should consider. Probate and Family Court judges often refer to the resource, so it is also something that should be considered in anticipating a possible judgment after a full-blown trial. This advance knowledge certainly helps settle cases, and in turn, reduces the overall cost of litigation.
In what are usually highly contentious divorces or child custody disputes, the term "parental alienation" has been coined to describe what is a form of emotional abuse that occurs when one parent actively works to align their child with him/her to the exclusion of the other parent, without justification, resulting in the child's rejection of the estranged parent. Merriam-Webster's online dictionary defines alienation as "a withdrawing or separation of a person or a person's affections from an object or position of former attachment; estrangement." In cases involving parental alienation, there is destruction of a child's once positive relationship with both parents. As one parent poisons the child against the other, the child's affinity shifts to only one parent while he/she alienates or rejects the other.
Although a "final judgment of divorce" terminates a legal marriage between spouses, all too often, the parties will remain embroiled in litigation for years to come, particularly with respect to issues surrounding the care and custody of their minor children. Even the most well-drafted parenting plan cannot anticipate and preemptively resolve all of the disputes that inevitably arise when raising children, and the failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters (such as whether Susie can get her ears pierced, if Johnny can sign up for football, and which parent should be responsible for picking up the children on a snow-day) can lead to repeated court appearances and thousands of dollars in legal fees. While child-related issues can always been modified upon a material change in circumstances, and some matters genuinely require the court's intervention, many of these "day to day" disputes can be efficiently and cost-effectively resolved by the appointment of a "Parenting Coordinator" ("PC").
Research published by the Centers for Disease Control and Prevention earlier this year found that nearly one in four first-born babies, or 22 percent, are born to unmarried parents living together. A growing cultural acceptance of having children out-of-wedlock has contributed to the dramatic jump in this statistic; the number of children born to unwed couples has nearly doubled since 2002.
Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children. Custody determinations and appropriate parenting plans are based on this guiding principle. Contrary to common belief, the "best interests" standard is gender-blind. M.G.L. Chapter 208, Section 31 provides that in determining the question of custody "the rights of the parents shall . . . be held to be equal." In deciding issues involving custody, the overriding concern of the Probate and Family Court Justice assigned to the case must be the promotion of the best interests of the children and their general welfare, not the gender, feelings or wishes of a particular parent.
I recently attended the 49th Annual Conference of the Association of Family and Conciliation Courts in Chicago. The conference was entitled Attachment, Brain Science and Children of Divorce: The ABCDs of Child Development for Family Law. In addition to seminars focused on the role of Parenting Coordinators in resolving disputes between parents in high-conflict custody cases, there were presentations on attachment theory, and how developments in social science help us formulate appropriate parenting plans, especially in cases involving infants and toddlers.