Can You Get Retroactive Modification of a Support Order?

                A question that is often asked of our Law Office is whether a party can seek a credit for child support he or she had been ordered to pay, but for a time period during which they had assumed primary custody and financial support of the child or children for whom the support order was established.  The general rule is found in Massachusetts General Laws, chapter 119A, section 13(a), which states that a retroactive child support modification of this kind cannot be granted by a Judge, except for any period during which there is a pending complaint for modification. In other words, if one assumes custody and financial responsibility of a child, it is his or her burden to file a Complaint for Modification and request a change to the child support order. Otherwise, a court cannot grant a retroactive credit for any support paid prior to the date of filing of the Complaint. 

              On November 22, 2016, the Appeals Court held that there is a very specific and limited exception to this rule. In Rosen v. Rosen, the Court held that a judge can grant and apply a credit to offset a child support arrearage (amount owed) during a period of time when there was no pending complaint for modification if the following circumstances are met:

“[T]he support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child’s best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient.”

                While it is always best to seek relief directly from the Court via a Complaint for Modification if there are any changes to the custody or support agreement, the holding in Rosen v. Rosen provides much needed relief for those parents who assume responsibility for their child during extraordinary circumstances. It also encourages parties to put the best interests of their children first, without fear that they will be found in contempt for failure to continue paying child support to a parent who has voluntarily transferred custody of a child.

              If you have questions regarding your custody or support order, contact our Law Office today to schedule a consultation. 

(c)2016 by Law Office of Leila J. Wons, P.C. 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."

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."

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."

Speaking to Children About Divorce

Speaking to your children about divorce can be an extremely difficult process. Parents often disagree on the amount of knowledge children should have about the divorce process and what his/her parents are going through. Some parents feel that the children should be fully informed regarding the status of the divorce (i.e. when the parents are going to court, what the issues are, etc.) while others believe that children don't need to know anything other than the existence of a pending divorce.  Depending on the child's age, it is advised that children not be given detailed information about the pending proceedings, as that will likely cause unnecessary stress and anxiety. Likewise, children should not be left in the dark about his/her parent's relationship. It is important to let children know that a divorce is taking place, but it is difficult to determine the right way to do it. Should the parents talk to the children individually? Should there be a family meeting? Is this something that is better handled in therapy or even with the assistance of a favorite teacher? There is no right answer, but fortunately there are some tools to help.

Sesame Street has recently released a series of videos and other tools to help children understand that they are not alone, and that it is OK to have and share certain feelings about the process. Showing children these videos may help prepare them for an open conversation about the pending divorce, or may help to follow-up with a conversation that has already taken place. You can find a link to these videos here.

In addition to the Sesame Street videos, there is a large amount of literature available to help parents address the divorce process with their children, as well as books specifically catered to children of divorce. Some of my recommendations include:

• Helping Your Kids Cope with Divorce the Sandcastles Way by M. Gary Neuman;
• Divorce is Not the End of the World: Zoe's and Evan's Coping Guide for Kids by Zoe and Evan Stern;
• Two Homes, by Claire Masurel

(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."

A Few Words of Advice from a Minnesota Judge

Judge Michael Haas of Cass County Minnesota retired in 2002 after 26 years of service as a Judge. The following 200 words issued by him (we are not certain whether they were stated on or off the record) have been referenced in multiple appellate court decisions and in Lawyer's Weekly. Judge Haas put into very simple terms a concept that so many people fail to grasp, and that are crucial for parents to understand when they are going through a break-up.

"Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is YOUR problem and YOUR fault.

"No matter what you think of the other party -- or what your family thinks of the other party -- these children are one-half of each of you. Remember that, because every time you tell your child what an 'idiot' his father is, or what a 'fool' his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of HIM is bad.

"That is an unforgivable thing to do to a child. That is not love! That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

"I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer."

(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."

Parental Alienation

One of the most difficult cases I work on are those dealing with parental alienation.  Parental alienation often occurs during or following divorce, and is characterized by a child expressing unreasonable, unjustified and strong dislike or even hatred for a parent. Most often, alienation occurs against the non-custodial parent, though it often takes place in situations where parents share physical custody of their child.

There are several things that can trigger alienation, though the most common appears to be the result of repeated negative remarks and ideas expressed by one parent against or about the alienated parent. As children are very intuitive and hear much more than we think, they are easily influenced by negative conversations or remarks they may hear about one parent. In additon, as divorce is a very difficult event in a child's life, he may turn to scapegoating as a coping mechanism, thus unreasonably blaming one parent for the breakdown of the family unit.

It is important to take action as soon as possible if it appears that alienation is taking place or being attempted. The longer a child is exposed to negative comments about one parent, and the longer she is allowed to act on these unreasonable feelings by refusing to attend visitation or by not following that parent's rules, the harder it will be to undo the damage and re-establish a healthy parent/child relationship. 

On June 8, 2012, a judgment was issued in the matter of Hendren v. Lee out of the Middlesex Probate and Family Court. This Judgment of Modification transferred sole legal and physical custody of the parties' son to the mother, the alienated parent. The judgment included a provision that the mother and child attend weekly reunification therapy and that the Father, his family, his friends and the son's siblings cease all contact with son for 90 days in order to effectuate said reunification. Unfortunately, the parties' older children were by this time beyond the jurisdiction of the court and could not be made to attend therapy with their Mother.  As such, it is very possible that, due to the one parent's repeated alienation, this mother will never have a relationship with her older children. The children will likely never be able to attend holiday meals together at their mother's home, or take family vacations with their mother.  As the court noted, this sort of alienation is not a child's best interest.  Further, studies show that children succeed more in life if they have healthy, loving relationships with both parents.

In sum, parental alienation is a tragic yet common occurence that can be prevented by seeking assistance from the court at the earliest sign that parental alienation being attempted.




(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."

Alternative Reproduction and Parental Rights

On March 6, 2012, the Supreme Judicial Court held that a father who consents to in vitro fertilization is the legal father of the children born of this artificial insemination, even if the parties agreed that he would take no responsibility for the needs of said children (Chukwudera B. Okoli vs. Blessing N. Okoli).

This holding comes on the tail of recent case law, Della Corte v. Ramirez, which held that children born of a same-sex couple become "children of the marriage" and the parties (whether biological parents or not) are legally responsible for them. In other words, both cases hold that if children are born in a marriage through alternative reproduction methods, but the parties consent to same, then both parties become legally responsible for the children. Even if the non-biological parent never adopts the children, or if the parties reach an agreement amongst themselves that one party will bear no financial or legal responsibility for the children, both parents are still considered the children's legal parents. The intent of the parties to become parents is irrelevant, just like it would be if two people engaged in sexual intercourse that resulted in a pregnancy.

IN SUM:
If you're married, don't consent to conception unless you are ready to be held legally responsible for the resulting offspring.

(c) 2014 by 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."

In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by 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."

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."

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."