Massachusetts Divorce Law Monitor : Massachusetts Divorce Lawyer & Attorney : Nancy Van Tine : Burns & Levinson Law Firm : MA Divorce & Family Law : Massachusetts Divorce Law Monitor

Hi there,

Here is the first topic in the series: Top 10 Topics to Consider When Getting Divorced.

If you have kids who aren't grown up, then this can be the most difficult area to navigate.  You will want to consider all of the topics in A and B below, and you may need to consider the topics in C, D and E as well.

A.  Legal custody, joint vs. sole, what legal custody means; who makes major decisions such as health, religion, education, moral development; and/or emergency decisions?

Most folks end up with joint legal custody, which actually is presumed to be the default format in Massachusetts.  Joint legal custody means that the parents need to communicate, and hopefully agree on the major decisions listed above.  This can be very hard in a high conflict situation, and impossible in a situation involving violence, mental health or substance abuse issues.  In fact, the state is asking people who are getting divorced because they can't communicate, to continue to communicate about their children.

I have the utmost respect for those who manage sometimes after the divorce is done, to step back, take themselves out of the equation and do what is best for the kids.  I have some prior posts about holiday scheduling that may be useful.  Sometimes, parents can't do it themselves and a Parent Coordinator is necessary.

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Hi there!

As I started trying to find my tablecloths for Thanksgiving (it's amazing what you lose when you move), I realized the holiday season was upon us and while I love this time personally, as a divorce lawyer it is both very hard and very busy.  This is the season where parents have to figure out how to share the kids over some of the most important family days of the year.  Thanksgiving, Hanukkah (I know that isn't the most important, but to the kids its up there) and Christmas.  If you are divorcing or divorced and haven't already handled this for this year, now is the time to work out the schedule with your ex.

Some folks, no matter how bitter, seem to be able to pull back and think of the children and each other; however, many (some years it feels like most) cannot do this.  The result is expensive, time consuming and often results in a total loss of parental choice when the judge ultimately has to make the decision.  As with any judicial, rather than parental decision, the result generally makes no one happy.  It is far better to handle this the way Daniel Clement suggested in his very thoughtful post last December on this topic. 

If you are stuck on what kind of schedule to use here are a couple of suggestions:

• For Thanksgiving folks often alternate the holiday through the weekend, or in the alternative split the day, with the parent who gets Thanksgiving dinner handing off to the parent who will have the weekend, and then that schedule can alternate as well;
• For Hanukkah, since there are multiple nights, folks often alternate the first and second nights;
• Christmas is the toughie.  A lot of parents feel little kids (who still believe in Santa) should find their presents under the tree at their primary address first thing in the morning.  This sometimes results in the non-custodial parent having the kids Christmas Eve Day until early evening, then getting the kids again sometime in the early afternoon on the 25th and having them overnight.  Once the children are older this arrangement often changes to an alternate Christmas Eve/Christmas Day split.  Some parents will trade the actual holiday itself for the entire post Christmas vacation. 

Think hard about what works for your kids, yourself and your ex.  Where are the extended families? Will someone have to travel?  And remember, no condition is permanent.  You can always alternate yearly.

Best,

Nancy

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Hi there,

Massachusetts has had mandated parent education for some years.  The course is titled "Understanding the Effect of Divorce on Children" and more information can be found here (PDF).

I have always thought it was a good idea, not everyone gets it, of course, but I think many do. Simple civility and how to keep the kids out of the middle are a great idea for divorcing parents.  A colleague sent me this article* which seems to indicate that these requirements have a beneficial effect.

I was also interested to see that the divorce rate is dropping.

Best,

Nancy

*UPDATED 11/30/09: Link removed as article now blocked from public viewing by the AP.

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Hi there,

Along with pretty much everyone else I have been reading the ongoing saga about Michael Jackson's death, his children and lastly, his will.

I am disturbed at a professional level by the revelations coming out about his children, in particular Blanket (remember the baby and the balcony?). It resonates as somehow buying children.  I have not seen anything in what I have read that indicates that Jackson adopted Blanket. What I have read indicates that Jackson (or more likely, his employees) paid for and arranged the pregnancy. Other than money, Jackson had no connection with this child. Given his personal history it would seem to me that he was not a good candidate to be an adoptive parent.

Most states have laws that try to prevent the purchase of children through just this situation. In a number of cases, the Massachusetts courts have decided that certain factors must be considered when determining the enforceability of a surrogacy agreement; if no compensation is paid to the surrogate other than pregnancy-related expenses and if she consents to the father having custody after a reasonable amount of time has passed following the child’s birth, then the court would consider the agreement enforceable. The concern over preventing people from being able to just buy children also shapes statutes involving adoption (see G.L. c. 210, § 11A; 102 Code Mass. Regs. § 5.09 (1997)). Parents wishing to adopt a child are able to pay the expenses of a birth parent but not make any direct payments to her.

As so much else in Jackson's life, the issues of his children raise many questions.

Best, Nancy

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Hi There,

When parents cannot communicate or agree after a divorce a parent coordinator is sometime used to help resolve matters. There's a very interesting article in this week's issue of Massachusetts Lawyer's Weekly which gives a much more in- depth presentation. if you are involved in any custody or disputed parenting actions you might want to read it.

There is a dispute among divorce practitioners as to the utility of parent coordinators.  A few extremely good divorce litigators  refuse to use parent coordinators at all. I happen to think that in the right circumstances and with the right parent coordinator they can be invaluable. No matter how much a parent coordinator charges, it will be less than the costs of litigation. I also think there is a true psychological benefit to the kids to keeping their parents out of court.  

May you never need a parent coordinator.

Best,

Nancy

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