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Massachusetts Divorce Law Monitor

What you never thought you'd need to know about divorce

SJC Decision Regarding Parent Coordinators: What You Need to Know

Posted in Court Decisions, Parenting, Children & Divorce

I was in my office last week when I heard shrieks of joy coming from down the hall. (We really should have a bell or something we ring for a big win – this yelling is so unprofessional.) My colleagues Sue Stenger, Francine Gardikas, Laura StudenRobin Lynch Nardone and Andrea Dunbar had just gotten the SJC decision on the case on parent coordinators. Here is Robin’s take on what that case means for families and children in Massachusetts.

Best,

Nancy

Robin Lynch Nardone

On September 15, 2014 the Supreme Judicial Court (SJC) decided a case of first impression on the issue of whether a court can appoint a Parenting Coordinator. A Parenting Coordinator (PC) is a mental health professional or legal professional who assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes. In Bower v. Bournay-Bower, the Probate and Family Court appointed a PC even though the mother did not want a PC and objected to the judge’s suggestion that one was warranted in this case.

Over the mother’s objection, the court appointed a PC with authority to make binding decisions on matters of custody and visitation. The Order provided that the PC’s decisions must be complied with by the parties the same as court orders, unless one party went to court before the order was to be implemented and obtained a contrary order. The SJC held that the Probate and Family Court judge exceeded her judicial authority in appointing a PC with binding decision-making authority over the objection of a party. Further, the SJC held that the authority vested in the PC was an unlawful delegation of judicial authority – meaning that a judge cannot give a PC the power to make decisions that should be made by a judge. The PC could change custody without a party having to show a material change in circumstances or that the change is in the best interests of the children. By statute, the judge is obligated to issue the final decision on any modification to the family’s custody arrangement.

Massachusetts presently has no rule or statute setting forth the duties, required qualifications, or scope of authority of a PC. In this case the SJC encouraged the Probate and Family Court to enact a rule regarding the appointment of PCs to ensure procedural and substantive safeguards are in place in any appointment, including:

  • Selection of PC (list of approved providers should be maintained and appointments distributed fairly to avoid favoritism).
  • Define the points in proceedings when parties may be referred to a PC.
  • Define the nature and scope of the authority that may be granted to a PC so as to avoid an unlawful delegation of judicial authority.
  • Resolve issues related to the apportionment and payment of PC fees (e.g., judge may not require parties to use a PC if the order would require one or both parents to pay for the PC’s services without his or her consent).
  • Training, licensing, or monitoring of PCs.
  • Whether and how parents may file complaints or seek removal of PCs.
  • Confidentiality policies.
  • Impartiality.
  • Case screening procedures.

Notwithstanding the decision that the PC appointed in Bower v. Bournay-Bower was improper, the SJC concluded that the court does have the inherent authority to appoint a PC in appropriate circumstances in order to conserve limited judicial resources. Additionally, the SJC wrote, “nothing in this decision should be construed to limit the ability of parties to agree to use the services of a parent coordinator or for a judge to incorporate that agreement into a judgment of divorce or to otherwise enforce the agreement using contract principles.” Clearly, parties who have already agreed within their Temporary Order or Separation Agreement to utilize a PC will be bound by their agreement. One lingering question is whether an agreement granting a PC binding decision-making authority will be enforced or whether that improper delegation of judicial authority can be successfully challenged by a party who previously agreed to give a PC binding authority.

The SJC acknowledged the increasing frequency of PC services in Massachusetts and that such services may provide an important benefit to families involved in the court system. But the Probate Court, or better yet the legislature, needs to put rules and protections in place.

Kudos to my Burns & Levinson colleagues, Laura Studen, Francine Gardikas, and Susan Stenger for their hard work on the Bournay-Bower matter and for securing this victory for their client.

NFL Sheds Spotlight on Domestic Violence

Posted in Domestic Violence

Hi there,

I wrote a post in July on domestic violence referencing the Ray Rice situation. At that time I had only seen the first video showing the aftermath. The second video is even more shocking (viewer discretion advised). However, viewing the first video left no doubt in my mind as to what had happened in that elevator. I am glad that the Ravens and Roger Goodell decided to penalize Rice for real, but disappointed as to how much it took to get there.

It is good to have this discussion in public, because often it isn’t public. If it weren’t for the casino’s security cameras, I doubt that Mrs. Rice would have done anything in response to her attack. And the next time it happens, or the time after that, there will be very real damage.

October is National Domestic Violence Awareness Month. As such, and in light of the recent NFL situations, a blog in California recently published some astonishing and scary statistics about domestic violence. Statistics and experience show that it does not occur just against women. And I know anecdotally from 35 years of practice that it is very under-reported by men. We’ve come a long way in those 35 years, from the shrug and the “it’s just a family matter” then, to the shock and penalties now. The state of Massachusetts has even created a new Domestic Violence Law that requires employers to give domestic violence leaves of absence to affected employees.

I hope the hype surrounding the Rices and the NFL will continue to keep the spotlight on a real problem.

Best,

Nancy

Rehabilitative Alimony: A Big Change

Posted in Alimony and Child Custody, Court Decisions

Hi there,

On August 1, 2014, the Supreme Judicial Court rendered its second decision (no doubt of many) on the cases coming in on the new Alimony Reform Act.  The case is an appeal from a decision of Justice Amy Blake, who has just been elevated to the Appeals Court.  The opinion in Zaleski v. Zaleski was written by Judge Fernande Duffly, who has been a domestic relations practitioner, a Probate Court Judge and now a Supreme Judicial Court Justice. She is the only one on the SJC to have a background in family law; as a result her opinions are extremely helpful.

This case makes four major points:

  1. The Probate and Family Court judges still have great, even expanded discretion.
  2. Even if general term alimony is possible, in certain circumstances the judge can limit it to rehabilitative alimony.
  3. If the Court orders a party to maintain life insurance, the insurance required must have a relationship to the parties’ financial obligation
  4. All income, including bonuses, must be included in the alimony calculation.

Rehabilitative alimony can only last for 5 years. General term alimony in the circumstances of the Zaleski case would have lasted 13 years.  This decision makes it very clear that the judge does have discretion to look at the circumstances of the case, including the wife’s prior earning and employment history, and order rehabilitative alimony. Unsaid but implied is the factual question: If the wife cannot find employment, or can only find poorly paying employment, then she can seek to modify for the longer term.

With a new law as far reaching as this, no case can answer every question. This case does leave very open the disparity between the wife’s prior highest earnings ($170,000) and the husband’s earnings,  (base $400,000, bonuses in the $200,000 – $300,000 range). If the wife does manage to become reemployed at a similar salary, then she might be able to argue based on her need and the husband’s continued high earnings that she receives general term alimony based on a calculation that includes her income.

I am sure there will be more cases to come as the courts and the divorce bar come to grips with the major changes wrought by the Alimony Reform Act.

Best,

Nancy