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,

I have been reading the David Goldman saga for some months now.  As a story, it highlights the problems of international custody cases when one parent takes the children to a foreign country and will not return them.  These cases are very difficult, even if the country in question has signed the Hague convention.  You need an American divorce attorney who understands the convention, contacts at the US State Department; an attorney in the foreign country who does family law and understands the Hague convention and has contacts in the foreign State Department.  It is hellishly expensive.  Furthermore, if the country in question hasn't signed the Hague convention (like most of the Muslim countries) then the result can be tragic.

If you don't know the Goldman story, in 2004 David's then wife took their 4 year old American born son to Brazil for what she told David was a 2 week vacation. Once there she ended the marriage, remarried a Brazilian lawyer and then died in childbirth in 2008.  

David Goldman has been fighting to be reunited with his son for 5 years and the reunion happened on Christmas Eve.  

It should have occurred much, much earlier. There were no allegations of violence or any untoward behavior on David's part.  Jurisdiction for the divorce and thus for the custody, parenting battle should have been in the New Jersey Courts.  

There is an international treaty, The Hague Convention which governs the rights of parents and children in international custody cases in those countries which are signatories to the treaty.

Brazil became a signatory in 2003. But there can be a real disconnect between what should happen legally and what does happen, and that disconnect is always greater in international cases.  Here, Brazil has not been compliant with the terms of the Hague convention. According to the State Department before Sean's return to his father there were 66 American born children in Brazil in defiance of the terms of the treaty.

The political pressure which David Goldman's supporters were able to bring to bear on the Brazilian system is a tribute to the fundamental decency of a lot of people AND the fact that Brazil was vulnerable to the non passage of a treaty which provided billions to them in economic benefits.

I can only wonder what will happen to those 65 other children, now that the treaty is passed?

Lets hope the Brazilian government means what it has said.

Best,

Nancy 

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Hi there,

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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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Hi there,

Done well, by both counsel and the judge, the pretrial conference is a great opportunity to settle a divorce case. That is if you have not already settled it at the four way meeting, in which case you probably will get divorced on the day of the pretrial conference.

If you haven't settled, this is the time for the attorneys to write a memo that tells the story of your circumstances and sets forth in the best light possible what you want, and why you want it.  By the time of the pretrial there should be no open questions as to values or assets.  If there has been a custody issue the Guardian Ad Litem report should be in and should have been reviewed. Both sides must file an up to date financial statement and should file an asset chart as well.

The idea behind the pretrial conference is that the judge can read the memos and the financials; ask the lawyers if they have anything to add then the judge can tell everyone what he or she thinks about the areas of dispute. Then the parties and their lawyers (who hopefully have also brought draft agreements with them) go out in the hallways and try to reach an overall settlement. The court is always willing to take that settlement and get you divorced that day. If you can't agree on everything and your case has to be tried then at least you can narrow the issues and your lawyer has gotten some good insight into how the judge may view matters.

In a perfect world this would happen more or less this way every time, in the real world of the very overburdened court system it doesn't /can't always occur. You may find yourself in the frustrating position of having done everything correctly and getting little or no feedback from the court. Some cases truly do need to be tried as well. There are often valuation issues or contribution issues that are so disparate that they require a trial, and perhaps, most unfortunately, custody cases often require a trial.

But.... easily 95% of all cases settle before, at or close to the pretrial and settle as a result of the work done in preparing for the pretrial.

Best,

Nancy
 

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After the defendant has been served or has entered an appearance, one or both parties usually file a motion asking the court for temporary orders. These deal with important issues such as:
• Who has to move out
• Who has physical custody of the kids (where they live)
• Who has legal custody of the kids (who chooses their doctor)
• Visitation issues (parenting plan)
• Spousal support and/or child support
• Other financial issues such as who pays the mortgage, medicals bills, tuition, etc.
Obviously, these are all compelling and important issues which differ widely from family to family. If the issues can be resolved between the parties, or the parties and their lawyers, then their agreement can be brought to court in the form of a joint stipulation which the judge will (usually) approve and adopt as a court order. The judge will send the parties to Family Service to mediate unresolved issues. Issues remaining after mediation will be decided by the Judge after hearing from both sides.
Before going to Court your attorney should help you prepare a financial statement (there are two - for those with income over $75k and for those with income under $75k.)  It is one of the most important documents you will file. It MUST be accurate and it should explain any financial matters that require explanation.
Do not underestimate the importance of temporary orders. They can become a baseline for the final outcome. Also, financial and family pressure from an unfavorable order can place a litigant at a serious tactical disadvantage.

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