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

Hi there,

I spent some time waiting in court today for my case to be called, and realized while listening to the arguments ahead of me that this is the happy time of year when divorce lawyers are negotiating the minefield of holiday parenting time.  This is tough for all concerned.  Hanukkah begins on December 20th this year and Christmas is, of course, the 25th. 

If you don't have the holiday parenting time arranged by Thanksgiving and your ex is giving you trouble, then many of you will unfortunately end up in court in the first few days of December fighting over parenting time and access. 

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Hi there,

I have been thinking about a post I read recently in the Ohio Family Law Blog (one of my favorites) about the possibility of parents who are not in the court system already, possibly having their children taken away as a result of childhood obesity.  Morbid obesity in children is clearly a health problem that needs to be addressed, although I am not so sure that a parent who punishes an out of control child by having them swallow hot sauce rises to a criminal child abuse level.  How many of you had your mouths washed out with soap, just askin?

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Hi there,

I cannot believe how cold it is!  At least it isn't snowing again.  I am dreaming of travel to any place warm.

If you are thinking of travel too, this, like so much else, can require extra steps if you are divorced (or separated) with children.  Most divorced parents have shared legal custody and most divorce agreements do make provision for out of state or out of country travel.  If you are pre-divorce you must make arrangements with your co-parent, either directly or in court.

Regardless of your status, there are still procedures to be followed.  Generally agreements require you to let the other parent know, including itineraries and ways to keep in touch.  If you are going to be headed out of the country, in addition to a passport you should have a notarized travel authorization signed by the other parent.  A good resource to decide what you need for traveling abroad with kids is the State Department site.  

If your co-parent has not paid his/her child support and owes you more than $2,500 there is a program which will deny him/her a passport if there is such an arrearage.  There is a good post about this on the Ohio Family Law Blog, although it  is from the viewpoint of the delinquent spouse.

And finally, from my own experience with my grandkids, if you have an iPad, Angry Birds is good for at least a 3 hour flight!

Best,

Nancy

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Hi there,

I bet that most divorce lawyers and Probate Judges will tell you that among the toughest cases they see are so called removal cases - where one parent wants to leave the state with the children, leaving the other parent behind.  It is now also clear that moving across the state so that parenting is disrupted can also be grounds for application of the removal laws.

If the departing parent is going to a neighboring state this may be something that can be worked out without a trial and a Guardian ad Litem.  However a move beyond a 2 or 3 hour drive can be disastrous to a parent/child relationship.

The reasons for asking to leave (and you must get either written permission from the other parent or a court order allowing the move) can be very valid and necessary as well, a job, a new spouse, familial support all of these can be critical to the moving parent.

Massachusetts handles removal cases in 2 ways based on what the parenting situation is. If the moving parent is the physical custodian, meaning that  the children's primary residence is with him or her then the standard is different from the standard when the parties share physical custody

There are 4 leading cases that discuss removal under Massachusetts law: Yannas v Frondistou-Yannas, 395 Mass. 704 (1985): Mason v. Coleman 447 Mass.177 (2006): Katzman vs Healey, (decided September 7, 2010) and Altomare vs. Altomare, (September 8, 2010).

If the parent seeking removal is the physical custodian then there is a two prong test.  First, the Judge must decide that there is a "real advantage" in the move for the parent seeking it.  This means also that the removing parent NOT be found to be seeking removal just to spite the other parent or make the relationship with the children difficult.  If the court finds there is NO real advantage then the case is over, however this is something generally only reached after trial.  If there is a real advantage then the test becomes the best interest of the children with a great deal of weight given to the fact that their welfare is entwined with that of the custodial parent.  Thus, the court has to consider if the mother has a real advantage most likely the kids in her care will too. 

If the parents have true shared physical custody: not just a recitation in an agreement that the plan is shared physical but an approximately equal division of the time; the standard is much tougher for the parent who is seeking to go.  The real advantage test is gone and both parents have equal rights and responsibilities so the "best interests of the child" focus is on just that.  The court may very well may consider the kid's need for continuity of community to override one parent's desire to move with the child.

All of these are issues if they arise that can frequently make a trial necessary.  They are also possibilities to consider prior to entering a divorce agreement as well.

Best,

Nancy

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Hi there,

"Firsts" of anything after divorce are hard, perhaps hardest on the children who probably don't feel any of the relief that the adults may at the change in circumstances.

Christmas can be the hardest, as there is no good way to divide the Santa time and not much in the way of myth to explain how he can get to 2 homes on 2 days.  It helps if the parents can coordinate gifting, although again, the first year is often the year in which communication has yet to calm down.

There are a number of books to help older children adjust and I just came across an interactive site put out in Canada which may be helpful for some.

As always, Donna Ferber has some good advice.  I am never sure how much this helps, with me it's just knowing that others may have the same problem(s) that makes tough stuff a bit easier.

Finally, I just read about a single mom who had her Christmas presents stolen, so I thought I would pass on this article about how to avoid such a tragedy, written by a thief (I got it off the Hingham Police Department  email warning system, but it came from the Orlando Sentinel).

May you all have a Happy and Healthy Holiday and a Terrific New Year!

Best,

Nancy

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Hi there,

I was just complaining with my coworkers about this time of year as a divorce lawyer.  I usually LOVE my job but the past two weeks, and probably next week as well, are the nadir as they are the time when high conflict couples discuss and (maybe) try to resolve the issues of children and holidays.  This is not easy for anyone, and it is always especially hard if you are facing the first holiday without either your spouse or your children.

Donna Ferber has one of my favorite blogs and she has a great post on this topic in time for Thanksgiving this year.

May you and your family have a great Thanksgiving.

Best,

Nancy

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Hi there,

The joyous holiday season is almost upon us!  For divorce attorneys, this is always viewed with some trepidation, as we tend to find ourselves in courtrooms arguing over who goes to dinner or Christmas or Hanukkah with whom - not necessarily an uplifting process.

I have been gleaning a series of articles and points of view that relate loosely to children and divorce and may be of use to some of you out there trying to negotiate the morass of this season.

The first is from one of my favorite bloggers Jason  --- of the Minnesota Family Law Blog.  The eight points should be every divorcing parent's mantra, no matter how horrible your soon to be ex or ex is, it is NEVER the kids fault and important to remember that the kids can, and do, get lost and damaged in the process.

The concept of a safe caregiver is discussed in the construct of an intact family, but it becomes even more potent and poignant when parents can't agree, or even discuss, what constitutes a safe person to leave a child with.  The other parent usually is the guardian or the custodial parent should one of you die.   Often the problem of safety arises with caregivers, girlfriends, boyfriends over whom you have NO control. The best advice (and sometimes as we all know this is impossible) is to have agreement with your ex over what the parameters for a safe person will be and the ability for both of you to raise concerns and have them heard and respected. If that is impossible then often the courts are your recourse.

And finally some good advise from Donna Ferber about how to handle this Thanksgiving if it is your first alone. The firsts are always hardest.

Best,

Nancy 

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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,

One of the toughest things to watch as a divorce practitioner is parents putting kids in the middle of the parental war zone. Passing messages, engaging in passive aggressive behavior over visit times, and worst of all, letting kids see the divorce papers - the list of ways to hurt children is practically endless.  Parents who would never deliberately hurt their kids in the frenzy of the divorce put their children squarely in the middle. A colleague just sent me a terrific blog from Great Britain on how to handle children in a divorce.

Some parenting truths are universal.

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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Hello there,

I find this to be a very interesting topic that everyone has a different opinion about and as I wrote this I realized what I was writing was different from my usual posts, but what the hell?!

I am sure one of the more difficult issues faced by a parent contemplating divorce is the effect of the divorce on the kids. I see many folks who are uncertain as to whether or not to stay in a pretty untenable situation simply because they want their children to be older and they think more able to accept before they divorce.

Through years of watching families, reading and observing children of friends, I am not so sure that this is so. I actually think the younger the kids are when the divorce happens (assuming the parents are civil and flexible about parenting) the easier it is for the kids to adapt. A 2 year old has very little difficulty where a 13 year old is at a developmental point where this can be much harder. I also think that a child in college may be more vulnerable than one who is around and in high school. And oddly enough I think that adult children have a very tough time, perhaps because they need to then rethink their childhood and possibly because parents tend to be more open with an adult child.

I would very much like to hear your comments and feedback on this post because as I said it is totally anecdotal and may be off base.

Best,
Nancy

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