Child Custody and Visitation

Tuesday, September 10, 2013

A Brief Overview of Recent Changes to the Massachusetts Child Support Guidelines

Calculating Child SupportOn August 1, 2013, updated Massachusetts Child Support Guidelines went into effect, and will remain in effect for the next four years.  The child support guidelines provide instruction and guidance to both recipients and payors of child support.  The new guidelines clarify the laws regarding support orders and modifications, and provide guidance to the courts when creating, modifying, and enforcing child support orders and obligations.

Additionally, there exists a Child Support Guidelines Worksheet, available online, which parents and courts use to determine the appropriate amount of child support on a case by case basis.  The following is a brief overview of the important changes to the guidelines.

DETERMINING INCOME

  • Income derived from a means-tested public assistance program (for example, TAFDC, SNAP and SSI benefits) shall not be counted as income for either party.
  • Guidelines now give judges discretion to consider income from second jobs and overtime income even if it was earned prior to the entry of the order.
  • When a judge is attributing income to a parent, the availability of employment at the attributed income level must now be considered. This revision accounts for the realities of the job market.

CHANGES TO THE CHILD SUPPORT FORMULA

  • There is a new formula that applies when parenting time is less than equal (each parent has the child 50% of the time) but more than the common split of two thirds to one third. There is now a formula for calculating child support when the non-custodial parent has the child between 1/3 and ½ of the time. This allows for the payor parent to pay less if he or she has the child more than 1/3 of the time, and to pay more if he or she has the child less than 1/3 of the time. This change accounts for the fact that a non-custodial parent may still have the child for a large portion of the week and accounts for the fact that, in some instances, the non-custodial parent has very limited parenting time with the child and may only see the child a few hours per week.
  • Clarification is given as to how child support should be allocated between the parents when their combined income exceeds $250,000.00, including a statement that the guidelines should be applied on the first $250,000.00, and the support obligation for the portion of combined income that exceeds $250,000.00 shall be in the discretion of the court.

DEVIATIONS FROM CHILD SUPPORT GUIDELINES

  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income, or when a parent is providing less than one-third parenting time

MODIFICATIONS

  • Regarding modifications, orders may no longer be modified solely because the existing order is at least three years old. Additionally, if the support is going through DOR and the entry of the last order was within the last three years, in order to modify, the requesting party must demonstrate a substantial change in circumstances IN ADDITION TO an inconsistency.

Please contact an experienced family law attorney in your area if you believe, based on the modifications to the child support guidelines, your child support order needs to be reexamined for accuracy and appropriateness.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific child support orders, or wish to speak to an attorney about a family law matter, we invite you to contact us.


Thursday, August 22, 2013

New Rules Will Simplify Certain Uncontested Family Court Matters

This summer, the Massachusetts Probate and Family Court announced changes to Rule 412 of the Supplemental Rules of the Probate and Family Court.  These changes went into effect on August 1, 2013.  The changes to Rule 412 allow parties to jointly request modification of a judgment or order of the Probate and Family Court where:

  1. the parties are in agreement;
  2. the agreement is in writing; and
  3. all other requirements of the Rules are met.

Following this procedure - and assuming that the parties' file is otherwise in order - will allow the parties to be granted a modification without having to appear in court.

Previously, Rule 412 addressed only child support judgment modifications, and if the parties were in agreement regarding a modification of child support, they were required to file a joint petition for modification of child support.  The parties would not be required to appear in court.

Rule 412 has now been expanded to allow parties to modify temporary orders in addition to final judgments, and to modify judgments or orders other than child support using this procedure as well.  These changes will allow the courts to handle more cases administratively and help to alleviate backed up clerk’s offices in the probate and family courts throughout the state.

If you are interested in modifying a judgment or order of the Probate and Family Court with the assent of the other party, contact a local family law attorney to learn about your options and the newly simplified procedure.

A complete copy of Massachusetts Supplemental Probate and Family Court Rule 412: Uncontested Actions to Modify a Judgment or Order can be read in the link provided.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific parenting plan, marital settlement agreement, or court order, or wish to speak to an attorney about effectively parenting with a former spouse or partner, we invite you to contact us.


Friday, April 19, 2013

Federal Children's Passport Issuance Alert Program: What You Need to Know!

child on a planeWHAT IS THE CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM, OR "PASSPORT LOOKOUT SYSTEM"?

The Children’s Passport Issuance Alert Program ("CPIAP") is administered by the State Department and allows parents to register their U.S. citizen children under the age of 18 in the Department’s Passport Lookout System.  If a passport application is submitted for a child who is registered in CPIAP, the Department contacts and alerts a parent or parents that there are possible plans for international travel with the minor child at issue.  The alert system gives all United States passport agencies as well as United States embassies and consulates abroad an alert if a parent or guardian registers an objection to the issuance of a passport for his or her child.

WHO MAY BENEFIT FROM THE PROGRAM?

If you are a parent that is divorced from your child(ren)’s other parent, a parent that is separated from your child(ren)’s other parent, or a parent who is concerned that your spouse may attempt to take your child(ren) out of the country without your knowledge, the State Department’s CPIAP "Passport Lookout System" may be an invaluable resource for you.  CPIAP provides information to a parent or court when a passport application is submitted on behalf of a registered child.

HOW TO REGISTER THE CHILD.

In order to avail the benefits of the CPIAP, the child must be a U.S. Citizen under the age of 18 and must be registered by filing a written request with the State Department.  It is not necessary for a parent to have any specific custodial rights to the child in order to fill out the request.  The Passport Lookout System Child Registration Form can be downloaded on the State Department’s website at http://www.state.gov/documents/organization/80112.pdf.

Besides a child’s parent or guardian, this form may also be filed on behalf of a child by law enforcement, a court, or someone acting on behalf of a parent.

WHAT ARE THE BENEFITS OF REGISTRATION?

The CPIAP’s mission is to prevent international parental child abduction.  If a child is registered, all U.S. passport agencies and U.S. embassies and consulates abroad are given an alert on the registered child’s name.  If a passport application is submitted for a child who is registered in the CPIAP, the Department contacts the parent or parents of the child, giving the parent advance warning of the possibility the other parent is planning on traveling internationally with the child.

If the child you seek to register already has a passport, the program will notify you if Passport Services receives an application for renewal of the passport. The Department may not revoke a passport that has already been issued to the child.

WHAT HAPPENS IF A PARENT ATTEMPTS TO OBTAIN OR RENEW A PASSPORT FOR THE REGISTERED CHILD?

After receiving notice of the passport request from the CPIAP, the parent will have about 30 days to consent or object to issuance or renewal of the passport for the child.  If the parent who applied for the passport for the child can demonstrate that he or she has sole authority to apply for the passport (for example, by providing a court order indicating he or she has sole custody of the child or a court order specifically authorizing the applicant parent to travel with the child) then the passport may be issued at any time after application regardless of obtaining consent from the other parent.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific parenting plan, marital settlement agreement, or court order, or wish to speak to an attorney about effectively parenting with a former spouse or partner, we invite you to contact us.


Thursday, November 15, 2012

Negotiating Health Insurance Costs In Your Divorce: What You Need To Know

Health insurance has been a hotly debated and discussed topic in the media this year.  One aspect of the health insurance discussion that is rarely addressed is the cost of health insurance in the context of divorce proceedings.  In fact, as health care expenditures increase, health insurance has a growing role in child support determinations.  This is particularly true in Massachusetts, where health care expenditures are growing more rapidly than other economic indicators such as wages, consumer prices, and per capita GDP.  (SOURCE: Massachusetts Health Care Cost Trends: Historical (1991 – 2004) and Projected (2004 – 2020), Massachusetts Division of Health Care Finance and Policy, November 2009.)

When determining child support obligations, the court will address whether the spouse that is paying the child support has health insurance coverage available to him or her at a “reasonable cost” that can be extended to the lower earning spouse and their children after divorce.  Since the passage of the 2006 health reform law, it is highly likely that they do.  In fact, approximately 98.1 percent of Massachusetts residents have health insurance coverage, including 99.8 percent of children.  (SOURCE: Massachusetts Health Reform: A Five-Year Progress Report, Blue Cross Blue Shield of Massachusetts Foundation, November 2011).  Additionally, Massachusetts law ensures that divorced spouses will continue to stay eligible on their spouse’s policy.  Mass. Gen. Laws Ann. ch. 32A, § 11A.  Specifically, Massachusetts does not allow health insurance companies to rescind eligibility for a divorced spouse on their ex-spouse’s policy just because they are divorced.  In fact, insurance companies cannot rescind coverage based on their status as divorced from the policy holder until the divorced spouse remarries.  Even if the policy holder remarries, the divorced spouse will continue to be eligible to stay on the policy.

Once the court determines that health care coverage is available at a reasonable cost, it typically has three options.  It can mandate that the person paying child support (1) exercise the option of additional coverage for the spouse and the children through their current health care insurer, (2) obtain separate coverage for the spouse and children, or (3) reimburse the spouse for the cost of health insurance.

If you are in a contested divorce, it is important to know what health insurance options exist in arguing that a spouse does, in fact, have coverage available to him or her at a reasonable cost that can be extended to you and your dependent children.  For those divorcing parties who are entering into an uncontested divorce, this information is vital to informed cost-sharing discussions with your spouse.


Tuesday, May 22, 2012

Should Smoking Be A Factor In Determining Child Custody?

 

Smoking often makes headlines for its negative impact on health, but there is a growing trend whereby probate and family court judges are considering a parent’s smoking habit when making child custody arrangements.

When any married or non-married couple with children separates, the probate and family court has jurisdiction to determine which parent will have primary physical custody and to set up a visitation schedule for the non-custodial parent.

Courts use a “best interests of the child” standard when determining appropriate custody arrangements.  Through the legal process - the presentation and weighing of evidence - judges are charged with evaluating the “fitness” of each parent.  In about 18 states, courts have ruled that a parent’s cigarette smoking habit should be considered when determining child custody arrangements.

Typically, things such as alcohol and drug abuse, or a previous history of neglect or violence, are considered when determining custody. It is becoming more and more commonplace for judges to also inquire into a parent’s cigarette smoking habits in order to comprehensively determine what type of custody placement would be best for the child. Judges may be even more likely to consider smoking a factor when the child has allergies or respiratory issues, such as asthma.

Judges across the country are quickly beginning to favor nonsmoking parents. In addition to considering smoking as a factor in determining custody, practitioners should be ready to argue for custody orders that contain specific provisions relative to a smoking parent's conduct, for example:

  • Requiring a custodial parent who smokes to only smoke outdoors;
  • Requiring a smoking parent who has visitation to abstain from smoking for at least 2 days prior to the upcoming visit and to abstain during the visit;
  • Prohibiting a smoking parent from smoking while riding in a vehicle with the child; or
  • Putting smoking restrictions on people who have frequent contact with the child, such as grandparents, close family friends, and/or a parent’s significant other.

If you currently co-parent your child and are concerned about the other parent’s smoking having a negative effect on your child’s health and wellbeing, consider filing a complaint for modification in the probate and family court to adjust the custody and visitation arrangement on account of the other parent’s smoking habit.

Source: Action on Smoking and Health


Wednesday, January 4, 2012

Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother

As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.

By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together.  After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.

Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone.  Eventually the egg-donor mom tracked them down in Queensland, Australia.

The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent.  Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.

Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:

Same-sex partners do not meet the definition of commissioning couple.  There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances.  I do not agree with the current state of the law, but I must uphold it.  I believe the law is not caught up with science nor the state of same-sex marriages.  I do think that is on the horizon.

The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption.  The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong."  The genetic mother appealed.

On appeal, the 5th District Court of Appeals  in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.

In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights.  After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:

Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away.  Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.

The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:

[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.

In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question:  whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.

The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:

Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other.  It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother].  Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here:  http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf


Tuesday, October 11, 2011

A Defendant Facing Jail Time for Failure to Pay Child Support has No Right to Counsel, Supreme Court Says

In June of 2011, the Supreme Court issued a 5-4 opinion that changed the rules of contempt proceedings for failing to pay child support.  In Turner v. Rogers, the court decided that the Due Process Clause of the 14th Amendment does not require states to provide a lawyer to defendants facing incarceration for failure to pay child support.  In the Turner case, the court found that Mr. Turner, a South Carolina man behind in his child support payments, was not entitled to a lawyer; however, the court did find that his incarceration violated the Due Process Clause.

The Court cites three main considerations as to why provision of a lawyer is not required in child support proceedings.  First, the determination of whether a defendant is able to pay the child support can be answered prior to providing a defendant with counsel.  The court also considers that the person opposing the defendant is often not the government, but rather the other parent who is also unrepresented by counsel.  Providing a lawyer to one parent but not the other parent has the potential to make the child support proceedings less fair.  Lastly, there are adequate safeguards available to protect the defendant’s interests.  Thorough financial assessment procedures, financial documentation forms, and notice to the defendant sufficiently protect him or her in answering the critical question of whether the defendant is able to pay.

In the Turner case, the court found that Due Process had been violated because, even though the state was not obligated to provide the defendant with a lawyer, the lower court did not provide any of the above-mentioned safeguards to make sure that the trial court had sufficiently examined the defendant’s ability to pay.

The Court’s decision essentially affirms the continued right of judges to throw a party in jail for failure to comply with an order to pay child support.  At the same time, the Court is mandating that sufficient safeguards and practices be in place in order to comport with Due Process.

It is important to note the Supreme Court’s decision does have limitations.  The court’s ruling may not apply to situations in which child support payment is owed to the state, where the government is likely to be represented by counsel.  It also may not apply in an ‘unusually complex case’ where a defendant can only be competently represented if he has access to a lawyer.

Whether you are seeking an order of child support, or have found yourself in the position of being behind in child support payments, it is critically important to have competent representation.  To determine if and how Turner may affect you, feel free to call us or send us an email, and as always, keep checking the blog for updates on pertinent legal news!


Friday, September 16, 2011

Texas Court Ruling a Reminder to Same-Sex Parents: Plan for the Worst

Recent news out of a Texas family court has many people discussing how far this country still needs to go in recognizing the rights of same-sex couples and same-sex parents, and has Massachusetts lawyers reminding themselves that their clients are better off safe than sorry.

As reported by the Advocate, a heterosexual couple in the state of Texas divorced after having three children.  The mother was awarded custody of the children. The father, William Flowers, eventually re-married Jim Evans, a man, in Connecticut, and they traveled back to Texas to live.

After the father’s re-marriage, he attempted to obtain custody of his children in a Texas family court.  Texas bans the recognition of same-sex relationships, including Flowers’s Connecticut marriage to Evans.  The Judge, on top of denying the father custody, ordered that the father could never leave his children with any man who isn’t part of the family without Mother’s permission.  The Judge eventually changed the wording to read “any person not related to the children”, but this superficial change did nothing to assuage the GBLT media, GBLT activist groups, and lawyers all over the country.  It especially did nothing to ease the pain and indignity felt by Flowers, Evans, and their family.

This story out of Texas is a harsh warning to gay and lesbian families in states, including Massachusetts, that recognize same-sex marriage and same-sex parenting rights.  It is also a reminder to attorneys of the critical importance of making sure clients put in place all possible safeguards in order to protect their families.

Same-sex families in Massachusetts need to take every legal step available to protect their marriage and their children, so that in the event that they, their spouse, their property, or a loved one ends up within the jurisdiction of a hostile state like Texas, their relationships and property will be protected.

Important legal protections available to same-sex couples (and opposite-sex couples) include preparing a comprehensive estate plan, with property and healthcare directives, preparing domestic partnership or property ownership agreements, preparing co-parenting agreements, and petitioning for a decree of adoption of their spouse or partner’s children, among others.

The current non-uniformity of patchwork state laws concerning the recognition of same-sex relationships and families makes it all the more important for gay and lesbian families to start a relationship with a GLBTQ family practitioner and take full advantage of the legal protections offered to them.  While it is infuriating and unjust that same-sex couples must endure the cost and complexity of additional planning to protect their families, it is better to be safe than sorry.




Charles River Law Partners, LLC represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County.
Legal Web Design by Zola Creative

© Charles River Law Partners, LLC  |  Disclaimer  |  Law Firm Website Design by Zola Creative

© Charles River Law Partners, LLC  |  Disclaimer  |  Law Firm Website Design by Amicus Creative



© 2017 Charles River Law Partners, LLC. | Disclaimer
1180 Washington Street, Suite 101, Boston, MA 02118
| Phone: 617-357-4898
13 Beach Street Extension, (by appointment only), Vineyard Haven, MA 02568
| Phone: 617-357-4898

Representative Cases | Family Law | Estate Planning & Probate | Litigation | Real Estate | LGBTQ | Adoption & Reproductive Law | | Login | About | Blog | News | Fees

Blog RSS

Site Development by
Zola Media