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

Hi there,

It appears that the divorce rate is declining.  That can only be considered good news, but anecdotally I think it means that the percentage of tougher cases has increased for practitioners. I have noticed our group seems to have a never ending stream of custody cases.  I am in the middle of a custody trial right now, so I decided to pass on some things that may help the kids.

First of all, Massachusetts has a mandated parenting course.  Divorcing parents of kids 18 and younger are required to take this course within 45 days of filing.  I try to get my clients to take it as soon as possible, as it can help with some very simple things.

Then from a child's perspective, how your parents tell you about the divorce is critical.   While there always should be a united, supportive front, many divorcing couples are unable to get past the immediate anger to present a united front.

Books help (In my world books always help, but that's another post).  Almost every library has an excellent selection.  A list of books reviewed by Benjamin Garber, MD and members of the staff of the Barr-Harris Children's Grief Center may be accessed here.

And remember, kids are resilient and they know when they are loved.

Best,

Nancy

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Hi there,

I started this post before I went on vacation last week, fully intending to complete it.  The weather in Florida was lovely, sooo...

Military parenting is difficult in the best of times.  The military are subject to constant moves, and most military folk find themselves at one time or another being deployed to either Iraq or Afghanistan.  This presents huge challenges in an intact family and can be even worse in a divorce scenario.  Imagine being a mother, having physical custody, getting orders to deploy to Afghanistan and knowing that when you return (if you return) you may not have custody of your children anymore, as your ex has used your deployment to keep the kids.  Horrific!  Yet it happens on a regular basis.

Consequently, I was very pleased to read this article in the fabulous Ohio Family Law Blog.

I hope this passes in the current congress and I will try to follow up and keep you informed,

Best,

Nancy

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Hi there,

I know I have just spent almost 2 years saying "settle if you can," but there are very compelling circumstances where going to trial may be the most effective choice.

Custody and parenting issues create compelling circumstances - there is nothing more important in a divorce than the kids.

If one parent is actively preventing the other from seeing the kids, or from having a normal relationship with them, then trial may be necessary to try and protect the children's relationship with both parents.  There is an over-hyped definition of this behavior, Parental alienation syndrome, but the behavior does exist and often requires that a judge make a final determination as to the parameters of the best custody and parenting plan.

Generally, when this is occurring there is no realistic way to fix it short of a change in custody with the non-alienating parent getting the children.  This usually means the hiring/appointment of a Guardian ad Litem, as well as a trial, as it is my experience that a parent who is alienating the kids cannot step back from the fight and so winning that fight is the only hope.  This is an uphill battle, but these fights can be worthwhile regardless of the cost, when you consider what is at stake.

One of the symptoms of supposed parental alienation is false accusations of abuse, and generally sexual rather than physical; however, actual abuse does happen and it can be subtle.  Often, abusers do not admit to their behavior, nor do they understand it; consequently, many times a trial is necessary to protect the children. 

A custody trial may be reasonable if one parent is disinterested, semi-neglectful and just wants to hang on to the kids to keep receiving child support, while the other parent is very involved and the kids want to be with him or her.  This frequently occurs as a modification, often some years after the actual divorce.  In my experience, this can also arise as a corollary to the children becoming teenagers.  Again, in such instances there should be a Guardian ad Litem appointed.

Custody/parenting trials are emotional and difficult for all concerned (even the lawyers), but sometimes they are the only way out of what seems like an impossible situation.

Best,

Nancy

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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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