Important child custody information for never-married parents

Today, it is much more common to have children outside of marriage. In fact, 40% of children born in the U.S. today are born to parents who are not married (NPR.org).  Regardless, there is still very limited information available to Massachusetts parents, especially fathers, of children born out of wedlock and their legal rights . In a nutshell, here are the current custody rights afforded to never-married parents and their children (mostly found in chapter 209C, section 10 of the Massachusetts General Laws):

• Children born out of wedlock are entitled to the same rights and protections as children born of a marriage (found in chapter 209C, section 1).

• Unless and until a man is adjudicated the father of a child born out of wedlock (i.e. via a paternity test) or executes a voluntary acknowledgment of paternity (i.e. signs the birth certificate), the mother has sole legal and physical custody.

• Even after a man is adjudicated the father or executes a voluntary acknowledgement of paternity, custody remains with the mother until a different custody order is established by a probate and family court.

• What this means is that until an action is filed in the probate and family court (and service is accomplished on the mother) a father has no say in anything pertaining to the child. This also includes where the child resides. For example, a mother can take the child to another state without notice to the father, and a court is precluded from ordering her back to Massachusetts.

• While a judge can order shared legal custody to divorcing or divorced parents, couples of children born out of wedlock cannot share custody unless they agree to do so, or unless the court finds that they have historically been able to exercise joint responsibility for their child and can communicate and plan effectively regarding what is best for their child.

• In addition, a court must determine who the primary caretaking parent was for the six months prior to the court proceedings, and maintain that relationship.

• For fathers, this can be lose/lose situation:  if the mother won't let a father have involvement in the child's life until he files the proper documents in court, he hasn't been able to exercise joint responsibility for his child, show cooperation with the child's mother, or act as a caretaker. So not only has he missed out on valuable bonding time with the child, but he will probably lose out on equal decision-making power in the future or the ability to obtain joint physical custody.

• On the other hand, this provision protects mothers and children from the return of absentee fathers who are trying to quickly establish a relationship with their children (perhaps because they have been ordered to pay child support).  It would not be in the child's best interest to force them into a relationship with someone they do not know well or remember.

Child custody is a very difficult, complicated and emotional matter. It is important to obtain experienced legal counsel to help you navigate through the court system and protect the best interests of your child. Contact our Westborough Child Custody Lawyer to discuss your specific issues further.


(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

How to Survive the Holidays

Happy holidays, everyone.
As we approach the holiday season, it is important to remember that, regardless of what may have happened in the past, the focus should be on the future. Take a few minutes to acknowledge everything good in your life (and I know there's plenty!) and fight off the urge to focus on what you don't like, or wish you didn't have (or would like to have).

For those of you with children, remember that they are constantly watching the adults around them and learning from them. So rather than think of all the pain that a broken relationship has put you through, think of what that relationship resulted in: your child. Don't criticize the child's other parent in his or her presence, prevent others from doing so, and work with the other parent to establish a holiday schedule that works for both of you, but that puts the emphasis on your child and what would be in his or her best interest. Yes, there will likely be last minute requests to change the holiday schedule, but a calm and cooperative mindset will make getting through the holidays without conflict a breeze. Here's to a peaceful holiday season.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

What is Alimony Reform All About?

On September 26, 2011, Governor Deval Patrick signed an act reforming alimony in the Commonwealth, the "Alimony Reform Act of 2011". This alimony reform has significant repercussions on currently existing alimony orders, as well as future alimony judgments, and will become effective March 1, 2012.

The following is a breakdown of the new alimony laws and what they mean.  However, this is not a complete outline of the Alimony Reform Act! If you have a currently existing alimony order or are interested in learning more about how alimony may or may not apply to your particular situation, please schedule an appointment with Attorney Wons.

ALIMONY AND PROPERTY
In determining an equitable distribution of property between parties in a divorce action, the court shall also consider the alimony order, if any, that is established.

TYPES OF ALIMONY
There are 4 types of alimony that can be ordered:

• General Term Alimony (what most people think of when we speak about alimony, i.e. periodic payments for a set amount of time);

• Rehabilitative Alimony (periodic alimony payments of not more than 5 years for a spouse who is expected to become economically self-sufficient by a set time, i.e. when they finish school or training);

• Reimbursement Alimony (periodic or lump-sum alimony payments in a marriage of 5 years or less meant to compensate a spouse for their contribution to the other spouse's financial resources, i.e. payments made to a spouse for taking care of the children and the home while the payor spouse earned his or her degree); and

• Transitional Alimony (periodic or lump-sum alimony payments lasting no more than 3 years in a marriage of 5 years or less to enable the recipient spouse to transition into an adjusted lifestyle, i.e. to enable a spouse to find suitable housing once the marital home is sold).

DURATION OF ALIMONY
Rather than leave the duration of alimony to the sole discretion of the courts, judges now have to follow general guidelines when issuing General Term Alimony:

• For marriages of 5 years or less, alimony cannot last for longer than 50%  of the number of months the parties were married (2.5 years max, or 30 months);

• For marriages of 10 years or less, alimony cannot last for longer than 60% of the number of months the parties were married (6 years max, or 72 months);

• For marriages of 15 years or less, alimony cannot last for longer than 70% of the number of months the parties were married (10.5 years max or 126 moths);

• For marriages of 20 years or less, alimony cannot last for longer than 80% of the number of months the parties were married (16 years max or 192 months);

For marriages of over 20 years, the court still has the discretion to determine how long alimony payments will last. However, in all instances alimony must terminate upon the paying spouse's attainment of the full retirement age (when he or she is eligible for the old-age retirement benefit under the US Old-Age, Disability, and Survivors Insurance Act.)

MODIFICATIONS OF ALIMONY JUDGMENTS
Notwithstanding the above guidelines, parties may seek modifications of their alimony orders at any time if a material change in circumstance occurs. In addition, the court may order that alimony continue after retirement age for "good cause shown". It will be interesting to see what the courts determine constitutes said "good cause", though I would think it applies to situations where one spouse receives substantially more assets that the recipient spouse from their respective pensions, social security or retirement accounts.

Although the new law becomes effective March 1, 2012, parties seeking modifications of existing alimony orders because the terms of their judgments exceed those set forth herein, cannot do so right away. Instead, they must follow these timelines:

• For marriages of 5 years or less, the parties may file on or after March 1, 2013;

• For marriages of 10 years or less, the parties may file on or after March 1, 2014;

• For marriages of 15 years or less, the parties may file on or after March 1, 2015;

• For marriages of 20 years or less, the parties may file on or after September 1, 2015.

• Regardless of these time limits, anyone reaching full retirement age on or before March 1, 2015 may file their Complaint for Modification on or after March 1, 2013.

ALIMONY AND CHILD SUPPORT
While a party can receive alimony at the same time as he or she is receiving child support, there are now limits for how long these two can last: The combined duration of alimony and child support cannot exceed the longer of 1) the length of an alimony order as set out above or 2) rehabilitative alimony that commences when child support terminates.

For example, if a couple with a 5 year-old child gets divorced, child support will likely be issued and continue for another 17 years (until the child graduates from college). If this couple had been married for 5 years or less, alimony can only last for a maximum of 2.5 years or however long a court would deem appropriate for the recipient spouse to become rehabilitated.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

When to Involve the Department of Children and Families

Child abuse or neglect are serious matters that need to be addressed immediately. Unfortunately, many parents fail to take appropriate steps towards ensuring that suspicions of child abuse or neglect are addressed, either due to fear that doing so will cause additional harm to the child or that it will place their own parenting into question.

What many people don't realize is that the failure to take any action following an allegation of abuse or neglect is itself considered neglect. If, at a later date, it is discovered that a party ignored allegations or signs of harm to the child, that parent may lose custody or visitation and themselves become the subject of a DCF (Department of Children and Families) investigation.

The appropriate thing to do when you suspect that your child has been abused or neglected by the other parent or someone selected by the parent to care for the child is to alert the appropriate agencies and take the child to his/her primary care physician for a check-up. Although a child's doctors and teachers are mandated reporters, they don't always contact DCF. Therefore, follow-up with your child's doctors and teachers and ensure that someone contacts DCF. An allegation of abuse or neglect needs to be screened before a formal investigation is commenced, and the party being investigated will have an opportunity to respond to allegations.

For more information about the importance of being proactive and contacting the appropriate agencies, please visit the DCF website and read the following article from the Boston Globe.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."