Custody
Decades of Experience in
Custody Actions
Decades of Experience in Custody Actions
Parenting is stressful enough, but when you’re dealing with custody disputes, an uncooperative coparent, child support arrearages, or DCF investigations, it’s important to have an experienced attorney on your side. Our lawyers have years and years of experience negotiating and litigating all kinds of custody actions, whether it is establishing paternity, implementing a parenting schedule, custody disputes, obtaining or modifying a child support award, issues of grandparent or sibling visitation, removal matters, adoptions of both minors and adults, guardianship actions, DCF involvement and more.
Approaches To Child Custody Disputes
Child Custody &
Parenting Plan
Parenting Plan
Paternity
Child support
Department of
Children & Families
Children & Families
Adoption
Guardianship
Child Custody &
Parenting Plan
Parenting Plan
Custody matters can be some of the most difficult and emotional in family law as there are so many different aspects to consider. What many people do not realize before the onset of their custody case is that there are actually two types of custody which each have two subdivisions; which must be agreed upon between the parties or decided by the Court. The two different areas of custody are legal and physical custody; and the Subdivisions are either sole or joint.
Legal custody is a term that is used to describe the authority and responsibility a parent(s) or guardian(s) has to make major decisions about that child(ren) which affects their welfare such as their education, religious upbringing, emotional development, and medical treatment. In Massachusetts, the issue of legal custody is treated differently depending on whether the parents were married or unmarried. For unwed parents, the mother automatically has sole legal custody of the child unless and/or until the parties agree or the Court rules otherwise. For parents that were married, it is a very different story. In Massachusetts, the courts typically award joint legal custody to both parents unless there is substantial and compelling evidence of abuse or that the parties will be unable to coparent.
Physical custody refers to where and with whom a child physically resides. In some instances, a child may spend relatively equal time at each parent’s household, while others may live primarily with one parent and have reasonable parenting time with the other. When determining a parenting schedule for a child, the Court considers what is in the best interest of that child along with what has historically been the parenting plan. Typically, the Courts feel that it is in a child’s best interest to have regular quality time with both parents, but the amount of said time can differ based upon the specific circumstances of the case such as the age and needs of the child as well as the schedules of the child and each parent. Only in the rarest of circumstances would a court award one parent sole physical custody with no contact from the other parent.
Legal custody is a term that is used to describe the authority and responsibility a parent(s) or guardian(s) has to make major decisions about that child(ren) which affects their welfare such as their education, religious upbringing, emotional development, and medical treatment. In Massachusetts, the issue of legal custody is treated differently depending on whether the parents were married or unmarried. For unwed parents, the mother automatically has sole legal custody of the child unless and/or until the parties agree or the Court rules otherwise. For parents that were married, it is a very different story. In Massachusetts, the courts typically award joint legal custody to both parents unless there is substantial and compelling evidence of abuse or that the parties will be unable to coparent.
Each of the above custody terms are broken down into two additional categories, sole vs. shared. Here are some examples of each:
- Sole legal custody — One parent has the ability, right and responsibility to make major decisions about the(ir) child(ren), as it relates to education, medical care, religion, and emotional development.
- Shared legal custody — Both parents together, have the ability, right and responsibility to make major decisions about the(ir) child(ren), as it relates to education, medical care, religion, and emotional development. Neither party is able to make a decision regarding the(ir) child(ren) without the other party agreeing.
- Sole physical custody — A child lives with one parent and the other parent has reasonable parenting time; unless the court decides that parenting time wouldn’t be in that child’s best interest. It is very rare that the best interest of a child is represented by not having any parenting time with one/both of their parents, and usually is as a result of abuse, neglect or addiction.
- Shared physical custody — A child has periods when they live with each parent, so they have frequent, regular contact with both parents.
One of the most difficult aspects of a custody case can be trying to come up with a parenting plan that works for both parties and the child(ren). Whether the relationship is hostile, cordial, or friendly, it is important to get a detailed agreement in writing, so a set parenting schedule can be put in place and each parent’s obligations and rights are clearly understood. Of course, there is always room for flexibility, and both parents can certainly agree to a deviation if need be, but having something in writing to fall back on is crucial, especially in instances where your coparenting relationship may not be at its best. Without a clear and concise agreement, there is little recourse available if one party starts acting unreasonably, which is why it is always advised to have an attorney review the language for enforceability. We focus our drafting any parenting plan, to be detailed and one that stands the test of time, so that parties are not forced to come back and relitigate parenting plans, if possible.
For over four decades, we have been representing both unwed and married mothers and fathers in a variety of custody disputes. We have ample experience successfully representing clients in an array of custody matters – removal cases, where one party is seeking to remove the children from the state; cases where drug and alcohol addiction, domestic violence, or mental illnesses is involved; cases where a party is seeking sole legal custody; amicable cases where parties are hoping to establish a parenting schedule that allows their children to have healthy and ongoing relationships with both parents; cases involving children with special needs; cases involving same-sex couples where one party is not a biological or adoptive parent but still wants parenting time; cases involving parental alienation and reunification; and so much more. We understand that every case has unique needs and will always be there to guide you through the process.
If you’d like to learn more about our experience handling custody matters, please contact our office at 978-263-4160 to schedule a free initial telephone conversation to discuss.
Paternity
The issues surrounding paternity of a child can differ depending on the relationship between the parents. In Massachusetts, if a child is born to a married woman, the woman’s husband is presumed to be the biological father and his name will be placed on the child’s birth certificate. This is also the case if a woman was married 300 days prior to the birth – the mother’s former husband would be listed on the birth certificate. If the current or former husband is not the biological father of the child, he and the mother would need to sign a notarized document stating as such, while the biological father would sign an acknowledgment of paternity. Cases like this can be quite complicated and obtaining legal counsel is highly recommended as there are important deadlines that need to be adhered to in order to avoid serious consequences.
If a child is born to an unmarried woman, the father’s name would not appear on the child’s birth certificate unless both parties executed a voluntary acknowledgment of paternity or paternity was established through the court.
A voluntary acknowledgment of paternity form establishes legal rights and responsibilities of the parties, and should NOT be signed unless paternity is absolutely certain. Massachusetts law only allows a parent 60 days to demand a paternity test after the execution of this form unless fraud, duress, or material mistake of fact can be proven, in which case the deadline would extend to one year. However, if three years later, it is discovered that another man is actually the biological father, this typically will NOT change the binding effect of the voluntary acknowledgment of paternity. Even if DNA evidence proves that the biological father is someone else, it is unlikely that the legal father will get out of his child support obligation, nor would the mother be able to terminate the legal father’s custodial or parenting rights. Again, it is so important to consult with counsel in these situations to ensure a complete understanding of the law.
Until a voluntary acknowledgment is executed or paternity is established through the courts, legal and physical custody are automatically granted to the mother and she alone has the exclusive right to make all decisions pertaining to the child. As such, the father would have no legal right to see the child if the mother chose not to allow it. Similarly, the mother would have no legal right to seek child support from the father.
Typically, these are the most common reasons that a party would file to establish paternity – because a father wants parental rights or a mother requires financial assistance to support the parties’ child. However, there are other reasons that a party may seek to establish paternity. In some cases, a grandparent may request that paternity be established in order to seek visitation rights, a child could request that paternity be established in order to exercise certain rights, and even the Commonwealth can petition to establish paternity in order to obtain a child support order for a mother and/or child who is receiving benefits from the state.
Our attorneys have decades of experience representing clients in paternity matters and have the required knowledge to navigate this complex area of law while supporting our clients and the best interests of their child.
If you would like to set up a consultation to discuss a paternity matter, please contact our office at 978-263-4160 to speak with one of our experienced attorneys.
Child support
The issue of child support is a common one with most co-parents. However, in many cases, calculating child support is a relatively straight-forward matter. In Massachusetts, the presumption is that the weekly child support order determined by the Massachusetts Child Support Guidelines is the appropriate figure to be paid.
Numerous factors are considered when setting a child support order in accordance with the Massachusetts Child Support Guidelines such as:
However, there are instances in which calculating child support can become far more complicated. For example, for those who receive discretionary bonuses, commissions, tips, stock options, self-employment income, trust distributions, royalties, capital gains, and rental income instead of or in addition to a regular salary, it can be difficult to calculate what the appropriate child support order should be due to the fluctuating nature of the income.
Numerous factors are considered when setting a child support order in accordance with the Massachusetts Child Support Guidelines such as:
- each party’s gross income;
- their weekly expenses for child care, and medical, dental, and vision insurance;
- whether alimony or spousal support is also being ordered;
- whether either party pays child support for a prior child;
- the number of unemancipated children the parties have together;
- the ages of their children; and
- the parties’ parenting plan.
In those instances, attorneys typically have to be creative when drafting language to provide for a child support order that captures the fluctuating nature of the party’s income. In some cases, a self-modifying support provision can be implemented, an annual true-up can occur, or language can be drafted to allow for a certain percentage of income to be paid as child support. There are many options for parties in this situation, but it is highly recommended that an attorney be consulted to explain these options and draft the language so that it is enforceable going forward.
Similarly, if a party is unemployed or under-employed and is relying on asset liquidation or perhaps the assistance of a third party to pay their living expenses, the matter may need to be brought before the judge, where an argument would be made to impute income to the party consistent with their historic earning capacity, or to attribute income to the party consistent with the financial assistance they are receiving from third parties. In those situations, it is highly recommended that you seek counsel so they can present these issues to the court. Regardless, for parties who earn $115 per week or less, Massachusetts law provides that a minimum of $25.00 per week in child support be paid.
While the Court provides for a minimum support order of $25.00, there is also a presumptive maximum support order. The Massachusetts Child Support Guidelines are calculated using the combined available income of both parties under $250,000.00 per year. In cases where the parents exceed a combined annual income of $250,000.00, it is up to the Court’s discretion whether child support would be ordered on the income over $250,000.00. However, there is a strong argument to be made that support paid on the combined available income over $250,000.00 is actually alimony, which is only paid in instances in which there is a reasonable need for same and an ability to pay. That being said, some courts will order child support to be paid on this additional income over $250,000.00.
As discussed, the figure determined by the Child Support Guidelines worksheet is the presumptive child support order. However, the Court does have the discretion to deviate from that figure. Examples of some of the situations in which the Court could deviate from the presumptive child support order are as follows:
- Where the child support guidelines only take into consideration a maximum of five children, those who have more than five children have a strong argument for an upward deviation.
- Similarly, the child support guidelines only have three options for a parenting plan: a 50/50 parenting plan, a ⅔ parenting plan, and a parenting plan where each parent has primary custody of one child. If the parties’ parenting plan does not fall under those three options, a deviation could be appropriate.
- If a child has special needs that result in extraordinary expenses, an upward deviation may also be appropriate.
- If one party contributes more than the other to uninsured medical expenses, extracurricular activity expenses, a child’s cell phone bill, car insurance, or their educational expenses, an argument could be made for a deviation.
However, there circumstances in which a child may not be emancipated in accordance with the law and a support order could extend beyond that or even be indefinite. In cases where an adult child is incapable of supporting themself due to mental illness, intellectual disability, or physical incapacity, Massachusetts Courts have traditionally ordered that parents with the financial ability to do so shall continue to pay child support for their adult child. However, Massachusetts case law states that these orders are reserved only for adult children who are deemed to be incapacitated by the courts and in need of a formal guardianship. If you have a child who you believe may fit this criterion, it is important that you consult with an attorney to ensure that your Agreement is properly drafted with that in mind.
If you would like to set up a consultation to discuss a child support matter, please contact our office at 978-263-4160 to speak with one of our experienced attorneys.
Department of
Children & Families
Children & Families
It can be very difficult and trying time for any family to navigate through any process involving the Department of Children and Families (or “DCF”). It’s often a confusing and complicated process that no parent ever expects to face, and because of that, most are entirely ill equipped to navigate it without the assistance and guidance of an experienced attorney.
In general DFC, has two main responsibilities
DCF involvement typically begins with the intake call by a reporter to DCF. The reporter is often a mandated report (such as a teacher, police officer, doctor, or social worker) but also can be made by a family member, neighbor, family friend, or even a complete stranger. During the intake process, the DCF social worker will make an initial determination of whether the allegations made by the reporter fall under the Department’s jurisdiction.
In general DFC, has two main responsibilities
- To investigate and identify instances of child neglect and/or abuse and;
- To provide services to those families/children who are in need.
Should the DCF social worker find that the allegations made by the reporter fall under the purview of the Department, then what is called a 51A Report will issue. This Report will detail the initial intake and the steps taken by the social worker over the first few days. Otherwise, the matter will be screened out and no further action will take place.
Upon receipt of the 51A Report, DCF shall begin the screening process, which determines:
- Whether a child is potentially at risk of abuse or neglect from a caretaker and;
- Whether there is a need for an emergency response or non-emergency response.
The purpose of a 51B investigation is to make a supported or unsupported, finding of neglect or abuse against the caretaker. However, the timing of this investigation depends on whether it is found to be an emergency situation or non-emergency situation.
Emergency Investigations:
In cases of emergency, the investigation is to begin within two hours of the initial report and shall be completed within five business days after receipt of the report.
The situation is deemed an emergency in instances where the “reported condition poses a threat of immediate danger to the life, health, or physical safety of the child.”
In these cases, the DCF investigator will visit the child within twenty-four hours of receipt of the report. The investigator will want to speak with the parent(s) or caretaker(s), the child, and will typically want to look around the home to investigate the child’s living conditions.
Non-Emergency Investigations:
For non-emergency cases, the investigation is to commence within two business days of the initial report and are technically supposed to be completed within 15 business days following receipt of the report. However, this is not always the case in practice.
Typically, the investigator will visit with the child within three business days. Although, this aspect of the investigation can be waived in certain circumstances – for example, if the alleged abuse occurred at school or at a daycare provider.
After the investigation is concluded, DCF may find that the allegation was not supported, they may determine that the allegation was supported, or they may enter a finding of substantiated concern. It is important to note that parents do have the right to appeal the Department’s decision, but said appeal must be made within 30 days of the conclusion of the initial investigation. If you want to appeal a decision made by DCF, please contact an attorney as soon as you receive the decision as time is of the essence!
Depending on the circumstances and the findings made by DCF, the Department may simply refer the parent(s) to one or more support programs and track their progress, or they may take the more serious route of filing a care and protection action in Juvenile Court, where they will attempt to remove the child from the parent’s custody, and/or they may even refer the matter to a district attorney for criminal prosecution.
This is why it is so important that you know your rights and obligations during a DCF investigation and ensure that you feel equipped for any and all interactions you may have with your DCF social worker. If you are able to afford counsel, it is highly recommended that you retain an attorney to advise you throughout the process, and prior to having any communications with your DCF social worker.
Our firm has handled many cases with DCF involvement and would be happy to assist in whatever capacity you choose. We have ample experience representing clients throughout these investigations and ensuring their rights and their children are protected.
To learn more about your rights during a DCF investigation, please check out our blog post: Knowing Your Rights in a DCF Investigation.
Adoption
Adopting a child is a wonderful and exciting time in any prospective parent’s life, but the process can often be confusing, complex, and stressful.
In order to adopt a child, one must:
For most adoptions, especially when adopting through the Department of Children, there are often countless obstacles to overcome before the adoption can be official. Below is a list of some of the hurdles that may exist when trying to adopt. However, please note that these requirements do not exist in all adoption scenarios, and some adoption scenarios require only a few of the items listed below while others require most:
In order to adopt a child, one must:
- Be at least eighteen years old;
- Rent or own their own home with suitable living and sleeping quarters – children of the same gender can share a room and children under one years of age may share a parent’s room
- Be able to support a child on their current income
- Passing a Background Check – sometimes, every member of the household over 14 will have to undergo a background check, which may include fingerprinting
- Interviews by Social Workers
- Providing Personal References
- Participating in a Home Study – your home would have to pass the physical standards check and have suitable living and sleeping arrangements for children
- Attending the Parenting Training Program – this program is three hours per week over the span of several weeks and is required when adopting through DCF
- Pass Residency Requirements
- Searches Being Conducted for the Biological Parents and/or Notices Given to the Biological Parents
- Obtaining Consent from DCF if the child is under 14
- Request that the Biological Parent(s) Voluntarily Surrender their Parental Rights
- Ask the Court to Terminate the Rights of the Biological Parents
- Having Custody of the Child for 6+ Months
Even in cases of adult adoptions, there is plenty of paperwork that needs to be filed with the court, and the adoptive parent and the adult being adopted will need to consent to CORI checks before the adoption decree is issued.
Stepparent adoptions are also typically less complicated than a regular adoption, as home studies and DCF involvement are often not necessary. However, these cases can become more complex when the other biological parent refuses to consent and terminate their parental rights. A stepparent adoption cannot be approved unless the biological parent’s rights have been surrendered – whether voluntarily or involuntarily. If you wish to seek court intervention to terminate the biological parent’s rights, you should consult an attorney to ascertain your chances of success.
Even if the other biological parent consents to the adoption, it is always a good idea to consult an attorney in order to understand the pros and cons of a stepparent adoption. For example, the child will lose all rights to inherit from their biological parent and the stepparent may be ordered to pay child support if he or she separates from their spouse.
Our firm has handled many adoption cases throughout the years – we have dealt with adult adoptions, step-parent adoptions, same-sex adoptions, foster-parent adoptions and would be happy to guide you through the difficult process.
If you would like to schedule a consultation, to discuss your adoption needs, please contact our office today at 978-263-4160.
Guardianship
A guardian is a person who is appointed by the Court to support, care for, and make decisions for another person. Guardians are appointed in the following scenarios:
However, depending on the circumstances of each case, the authority of the guardian may differ. For guardians of incapacitated adults, the guardian’s powers are typically limited to those that the incapacitated adult cannot handle on their own. In Massachusetts, it is the Court’s belief that guardianships should be limited to whatever extent possible, while still providing the incapacitated person with the care they need.
- For a minor child whose parents are deceased and/or determined to be unfit by the court and/or consent to the guardianship
- For an incapacitated adult, which is legally defined as an adult who has a clinically diagnosed medical condition that results in an inability to communicate, assess information, or make decisions for themselves.
These limitations will be specifically set forth in the Guardianship Decree. Generally, there are certain situations in which a guardian will require further permission from the court such as consenting to major non-emergency surgery or various complex medical treatments, being admitted to a residential treatment facility, and consenting to certain medications.
In every case involving a guardianship, the guardian MUST always consider the best interests of the person under their care.
Guardians are also obligated to provide annual reports to the Court, which detail the current condition, living arrangements, and future care needs of the person under guardianship.
Obtaining a guardianship can be an intricate process with many obstacles to overcome and serious legal consequences for all parties involved. To ensure you understand the process, and improve your chances of a successful outcome, it is always recommended that you consult counsel.
Our firm has handled numerous guardianship matters and remains ready and willing to help you through this difficult process. For a consultation, regarding guardianship, please contact our office at 978-263-4160.
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