Can a Judge Order you to Use a Parent Coordinator?

Earlier this month, The Supreme Judicial Court issued its decision on Bower v. Bournay-Bower, which addressed the Probate and Family Court's powers as they relate to the appointment of a Parent Coordinator.

A Parent Coordinator is a trained mental health or legal professional who helps parents with the implementation or creation of a parenting plan, who helps resolve disputes as they arise, and who can assist parents in understanding what is in the children's best interests.  Many people include a provision in their Agreements stating that they will use a Parent Coordinator prior to filing court actions. This is done in an effort to resolve matters quickly and more affordably, because a Parent Coordinator will often be available on relatively short notice to assist with everyday or urgent conflicts, and the parties can share the cost of the Parent Coordinator equally or in proportion to their incomes.  In some circumstances, the parties specifically agree to give the Parent Coordinator the power to make binding decisions that they must follow unless and until they obtain a different decision from the Court.

Prior to the Bower decision, it was unclear whether or not a Probate and Family Court Judge could order the parties to use a Parent Coordinator (if they did not agree to use one), and to what extent the Parent Coordinator could be involved. The Bower case involved a divorced couple who was ordered by their Judge to use a Parent Coordinator, and to have that Parent Coordinator make binding decisions that they had to follow unless and until they obtained a different decision by the Judge.

Through Bower, the SJC made it clear that a Probate and Family Court Judge possesses the authority to appoint Parent Coordinators in appropriate circumstances (a) in order to  conserve limited judicial resources and aid in the court's functioning and capacity to decide cases; or (b) if it is necessary to ensure the best interests of the children in a divorce or custody-related proceeding.  However, unless both parties agree, a Judge cannot give the Parent Coordinator the power to make binding decisions that the parties must abide by.

The SJC explained that forcing a party to be bound by a Parent Coordinator's decision would essentially be taking away that party's right under Article 11 of the Massachusetts Declaration of Rights, which grants an individual the right to "seek recourse under the law for all injuries or wrongs to persons, property, or character."  In addition, preventing a party from filing an appropriate Complaint or Motion in the Probate and Family Court until the Parent Coordinator had first made a binding decision would also infringe on the party's right to "seek recourse under the law."

The SJC also addressed situations that may involve domestic violence, and how it would be inappropriate and potentially dangerous to force a party to wait until a Parent Coordinator makes a binding decision before filing appropriate documents in court. It would be forcing a party to choose between safety and access to the courts.

Another concern cited by the SJC was the financial implication of forcing a party to use a Parent Coordinator. There are currently no regulations regarding the training, licensing or monitoring of Parent Coordinators, or the fee structures. As such, Parent Coordinators are often very expensive, and there may be situations where it would be inequitable and even financially detrimental to force a party to use a Parent Coordinator in lieu of going to Court.

In its decision, the SJC referred the matter to the Probate and Family Court to "review and consider the promulgation of a rule governing the appointment of parent coordinators. A rule will help to ensure that procedural and substantive safeguards are in place in any appointment of a parent coordinator to address issues including the selection of a parent coordinator, the points in proceedings when parties may be referred to a parent coordinator, the nature and scope of the authority that may be granted to a parent coordinator, and issues related to the apportionment and payment of the parent coordinator's fees."   In other words, the SJC wants there to be strict guidelines on the use of Parent Coordinators. 

(c)2014 by Law Office of Leila J. Wons. The information you obtain at this site 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. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

SSDI and Child Support

On August 1, 2013, the Massachusetts Child Support Guidelines were amended, once again. Amongst the changes made was the inclusion of specific language regarding the treatment of Social Security or SSDI benefits, as well as any such benefits received by a child for whom support is being calculated. On July 2, 2014, the Appeals Court affirmed the judgment of Schmidt v. McCulloch-Schmidt, which dealt with the treatment of such benefits.

In a nutshell, here's how the courts will treat Social Security benefits, SSDI benefits or dependency benefits received for a child:

1. Social Security and SSDI benefits received by a parent will be considered as part of that parent's income. These benefits are different from means-tested public assistance benefits like SSI or SNAP, which are NOT included in the parent's income. In other words, if a parent receives benefits due to financial need, those benefits are excluded from the child support calculations. If a parent receives benefits due to age or disability, those benefits ARE included in the support calculations.

2. In many instances, a child will receive a dependency benefit due to his/her parent's own benefits. For example, a parent receiving SSDI (Social Security Disability Income) may also qualify to have the custodial parent receive SSDI Dependency Benefits on behalf of their child. In this case, any dependency benefits received are included in that custodial parent's gross income for purposes of calculating child support. 

3. If the resulting child support order is less than the SSDI Dependency Benefits, then no further child support is ordered, and the custodial parent gets to keep the entire dependency benefit, regardless of whether or not it was through the custodial parent that the child became eligible for the dependency benefits.

4. If the resulting child support order is greater than the dependency benefit and the custodial parent is the one through whom the benefit was derived, then the non-custodial parent has to pay the entire child support figure.

5. If the resulting child support order is greater than the dependency benefit and the non-custodial parent is the one from whom the benefit was derived, then the non-custodial parent will pay the difference between the child support order and the dependency benefit.

Here are some examples, in order to make things a little less confusing:

Father receives SSDI. Due to his father's receipt of SSDI,  the child also qualifies to receive Dependency Benefits, which are granted to the custodial parent.  Mother receives regular income from a W-2 job. Mother is the custodial parent. 

• Mother's income includes the income she receives from her employment, as well as the SSDI Dependency Benefits received for their son.
• Father's income includes his SSDI benefits.
• The amount of dependency benefits is $80.00 per week.
• The resulting child support order is $75.00 per week from the Father to the Mother.
• Since the child support order is less than the amount of the benefits received by Mother as a result of Father's own receipt of SSDI benefits, Father does not have to pay any support.

If we use the same scenario as above but make the child support order $85.00 per week, then the Father would be responsible for paying the difference between the child support and the benefits, which would be $5.00 per week. Since the Father is the one from whom the dependency benefits are derived, he receives a dollar-to-dollar credit for them against his child support order.

If we use the first scenario but make it so that the Father is the custodial parent (and thus also receiving the dependency benefits), then the Mother would not pay the Father any child support because the support order is less than the dependency benefit.

If we use this same scenario but make the child support order $85.00 per week, then the Mother would owe the Father then entire $85.00. There would be no off-set for the dependency benefits because the benefits were not derived from the Mother, who is the payor.

For questions about the calculation of child support or any other domestic relations matters, please contact Attorney Leila J. Wons to schedule a consultation.

(c)2014 by Law Office of Leila J. Wons The information you obtain at this site 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. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Child Abduction

Today's headlines feature the case of a Colorado father whose young daughters were taken to Argentina by their mother after their divorce judgment granted him primary custody. It has taken him over 3 years to get his daughters back, and they are still not in his custody. Even though Argentina became a signatory country in the Hague Convention in 1991, the children's mother was able to stall the girls' return by using the lengthy appeals process through the Argentine courts.

What does this terrible situation mean for you? As made apparent in the above case and in countless other matters, having a designation of custody through a U.S. or Massachusetts Probate and Family Court does not prevent a non-custodial parent from abducting the children and fleeing the country. While it may be difficult to get children through security and on a plane without the notarized consent of both legal custodians when traveling out of Logan Airport, other airports are not as tough. Once out of the United States, the battle to force the non-custodial parent to return the children may be impossible.

If you suspect that your child's other parent may result to such extreme measures, it is imperative that you act proactively:

• During a divorce or custody matter, ask that the child's passport be held by your attorney and that both parents be granted access only with court permission.
• Ask that the Court institute a bond for the parent that is traveling with the children overseas, which can actually prevent that parent from leaving the country if the bond is set too high.
• If the children do not have passports, ask the Court to issue an order that neither parent may request a passport for the children.
• Depending on the age of your children, teach them how to use a telephone and have them memorize your phone number.
• Ask that the children's school alert you if the children are picked up early by their other parent.

Most importantly, if you suspect that an abduction is likely, take immediate action and seek assistance from the court.



(c)2014 by Law Office of Leila J. Wons The information you obtain at this site 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. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Extracurricular Acitivites: How Many and Who Pays?

With the Olympics come the sentimental commercials of Olympians thanking their parents for helping them become the athletes they are today.  We see images of these young Olympians learning how to walk on a ski slope, falling down over and over, and being woken up in the very early morning hours for practice. Not every child will become an Olympic athlete, and not every family will even consider the possibility of making such a commitment.  So what happens when two divorced or never-married parents have differing opinions on the extracurricular activities that a child will participate in? Who pays for the cost of these activities?

 As with many other decisions to be made regarding children, a Judge will determine what is in the child's best interest when deciding whether or not a child should continue or start an activity, and who should be responsible for the cost. In addition to looking at the history of involvement in a certain activity, the court will also consider the impact – if any – that the activity may have on parenting time, as well as the income of the parties and the cost of the activity.

 In many situations, the parties include in their agreement language that allows the children to participate in agreed-upon extracurricular activities, with agreement not to be “unreasonably denied.” For those activities that are agreed-upon, the parties include language stating that they will share equally the cost of those activities. The question, then, is “what is reasonable?”  The answer to this question will vary with each situation, but some good rules of thumb are:  A child should be able to participate in extracurricular activities, but those activities should not significantly infringe on parenting time. In addition, if a child had engaged in an activity throughout the parties’ relationship, the child should be able to continue doing that activity. With regards to payment, the parties should share the cost of reasonable activities, so long as the parties’ incomes have been equitably addressed via child support or alimony.  The key is finding balance between these rules. So if a child had always done one sport per season, it would be reasonable for the child to continue to do so. However, if the child had always done three activities at once, and those activities took significant after-school time and weekend-time, it may not be reasonable to keep the child enrolled in all three activities. Further, if the application of child support still results in one party having significantly higher assets than the other, it may not be equitable for the parties to share in the cost of extracurricular activities.

While it is impossible to predict what a child will be interested in (or talented at), adding language into an agreement that sets parameters for the number of and payment for activities can save the parties from future court battles and headaches, Olympic athlete or not!  


(c)2014  by Law Office of Leila J. Wons The information you obtain at this site 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. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

How long does the divorce process take?

Everyone has heard horror stories about divorces dragging on for years, with families and children caught in the middle of a seemingly unending war. The reality is that, depending on the parties and their dedication to resolving their outstanding issues, a divorce can take as little as a month, to as long as several years.

For Contested Divorces
Upon the filing of a Complaint for Divorce, the case is assigned to a 14 month track. This means that the courts do not want the entire divorce matter (from initial filing through trial) to take longer that 14 months. Unfortunately, they often take much longer than that, especially if the case is very contentious, there are multiple court appearances to address temporary orders, and/or the parties change counsel.

No earlier than 6 months after the filing of a  divorce complaint, the parties will be assigned a date for a Pre-Trial Conference. At this hearing, the parties must present memoranda to the Judge, letting him/her know what stipulations the parties have reached and what issues remain outstanding. If the parties still cannot resolve their matter following the pre-trial conference, they will be assigned a trial date. Usually, the trial is scheduled for many months after the Pre-Trial Conference. Sometimes, due to the Judge's calendar, the trial is scheduled 9 months out!

If the parties reach an agreement after the Pre-Trial Conference but before trial, they can usually present the agreement on any day that the Judge is hearing cases. The divorce then becomes final 90 days from the hearing date.

In situations where the parties reach an agreement prior to their Pre-Trial Conference and prior to the expiration of 6 months from the date of filing for divorce, the parties must convert their Complaint for Divorce to a Joint Petition for Divorce. This is a simple matter that includes the filing of a Motion, but the extra work is certainly worth the convenience of not having to wait until a full 6 months have gone by.

For Uncontested Divorces
If the parties agree to file Jointly for Divorce, the process is much faster. Once a Separation Agreement has been signed, all of the paperwork is filed with the appropriate court. A docket number and a Judge are assigned to the case, and a hearing date is assigned. On the day of the hearing, the parties present their agreement to the Judge for approval, and the divorce becomes final 120 days thereafter. In many instances, the parties can present their agreement earlier than their assigned hearing date, so long as they obtain permission from the clerk. As such, if the Courts process the paperwork quickly and the parties obtain permission to present their agreement early, the divorce can take as little as a month.

While unexpected conflicts and the Judge's calendar play a role in the length of time a divorce can take, it ultimately falls to the parties. The more contentious the matter, the longer it will take. For this reason, it is always beneficial to do a cost-benefit analysis when fighting over a specific issue. Is the fight worth the cost to prepare for court, attend the hearing and do the follow-up paperwork?  Perhaps not.

(c)2014 by Law Office of Leila J. Wons. The information you obtain at this site 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. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."