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My Kids Hate the Custody Arrangement – What Can I Do to Change It?

Even in the best of circumstances, divorce can be difficult for children. Children are often resistant to change: adapting to new schedules and surroundings, learning to live with one parent at a time, and getting along with possible new stepsiblings or half-siblings are all big changes, ones which can challenge a child’s developing social skills and coping mechanisms. However, many, if not most, children with divorced parents eventually adapt and thrive, growing into healthy and well-adjusted adults.

There are cases, however, where a child’s discomfort with a custody arrangement goes beyond natural resistance to change, beyond the fairly standard complaints of “I don’t like it here” or “I like dad’s house better.”

Perhaps there is serious, ongoing, and frequent conflict between the child and one of the custodial parents, a conflict that makes living with that parent a deeply anxious situation for the child. Perhaps the conflict is with a stepparent or stepsibling and a child’s grades are dropping as a result of the distress.

Conflict and negative situations are not the only reason to consider modifying a custody agreement, however.

Perhaps, at the other end of the spectrum, a mom can now spend more time with her children because of a promotion that allows her more control over her schedule. Or perhaps a ten-year-old custody agreement no longer works for a fledgling teenager because she prefers to live at her mom’s house as it is considerably closer to her new high school than dad’s, allowing her to participate in more extracurricular activities and sparing her a long commute in rush-hour traffic.

In these cases, it may be in the child’s or children’s best interest to file for a custody modification. If approved by the court, this modified agreement will supersede the original judgement or a preexisting temporary custody order.

In Massachusetts family courts, as in family courts across the country, children’s best interest and well-being are primary concerns. As such, any petition for custody modification must demonstrate that:

  1. Circumstances have substantially changed since the last custody agreement was approved
  2. The change is in the child’s or children’s best interest

When both parents agree to a change in the custody arrangements, they can jointly file for modification. Each parent could benefit from having a lawyer to help set out the details and wording of the petition and its filing. In general, a joint petition for custody modification is a fairly straightforward procedure.

In contrast, when one parent is applying for a custody modification the other does not want, it is highly recommended to have a lawyer. This applies whether you are the parent filing for a change or the parent opposed to a change.

Our partners are experienced family law practitioners. We can help make custody modifications easier on the whole family. Call today to schedule a consultation. We will discuss your family’s unique situation and design a plan to best serve your family’s needs.

Accessing Spouse’s Social Media Accounts During Divorce

While recognizing the hurt that comes with the breakdown of a marriage, and recognizing that marriages may break down due to the inappropriate behavior or abuse by a spouse, some behaviors and activities will not be viewed kindly by the family courts, and may even run afoul of the law. Spying or snooping on a spouse’s social media or digital presence for “dirt” is one such behavior.

With the rise of social media, people lead their lives as much online as offline. Digital lives can be accessed and assessed all in one place—a phone or a computer—and offer a rich source of information that could only be gleaned through extensive investigation in the real-world. Digital devices also contain sensitive, intimate information and communications that may never see the light of a real-time, physical day. This is information—evidence of infidelity, bank statements and the location of assets, backlogs of abusive text messages to a spouse—that could prove very damaging to the owner in a divorce case.

It is easy then to understand why a spouse might be tempted to snoop on the other’s phone, hack into a messaging app, or download statements from a spouse’s singly-held bank account. These are temptations that are critical to resist, though, for one’s own legal and financial good.

On the one hand, electronic snooping might be liable to prosecution as wiretapping. Massachusetts has some of the strictest laws in the nation around consent in recording, requiring that everyone on a recorded line or other recording at least know they are being recorded, even if they do not explicitly consent. This extends to other forms of electronic communications. For spouses, there are extra protections on the privacy of marital communications, and potential extra penalties.

Additionally, a court may look unfavorably on snooping, and the victimized spouse and his or her counsel may be able to argue this is a form of spousal abuse. This could backfire, in the end, on the snooping spouse in the terms of the final divorce settlement.

In short, do not snoop on a spouse’s phone or computer, as satisfying as it might be to uncover extramarital affairs or asset hiding. Stick to that evidence which is publicly available on social media profiles, or, better yet, leave the process of legal discovery to competent counsel. Our office is staffed by lawyers skilled in the discovery process, along with all facets of divorce law. Call today to discuss your family’s particular needs.

Snooping on Your Spouse in a Massachusetts Divorce

As thoughts turn towards divorce, tempers can flare and people may behave in ways they normally would not be proud of, even in a relatively amicable situation. Of course, the bad behavior of a spouse—ranging from neglect of household duties to infidelity to abusive actions—may well have begun long before the divorce, and may well be the reason for it.

In seeking a favorable divorce settlement, one that compensates you for violations of the marriage contract and shields you from your spouse’s ongoing bad behavior, you will want to have evidence to bolster your claims. In a world of smart phones, where everyone has both a video camera and a broadcasting station in their pockets, you may be tempted to record your spouse’s bad behavior.

In a word: don’t.

Massachusetts laws on recording interactions between persons are possibly the strictest in the nation. While many states have “two-party consent” laws, meaning that both (or all) people on a recording must know they are being recorded and consent to it, the Commonwealth takes it a step further. Recording private conversations falls under Massachusetts statute chapter 272, section 99, also known as the wiretap statute.

Explicitly instituted as a measure against organized crime, the statute is of theoretical interest to law students because it addresses both police and civilian conduct with regard to recording in the same law. For civilians, there is an explicit ban on recording wire communications (i.e. phone conversations) and a ban on any audio recording by other means without consent.

While a subsequent court ruling (Commonwealth v. Jackson) would allow secret recording in public situations where there is not a reasonable expectation of privacy, there is continued debate over what constitutes ‘secret’ recording and ‘public’ space.

The penalty for violating the wiretap law is a fine up to $10,000, imprisonment of two-and-a-half years, or some combination of jail time and a fine. Using the contents of an illegal recording, even if one did not make the recording, is also banned and severely punishable. However, the statute only addresses protections for the privacy of oral communication captured on oral recordings. There is no mention in the statute of still photography or soundless video, however, which presents itself as a loophole.

Given that the penalties for an illegal recording are so severe, and that a family law court will not look favorably on “spying” against a spouse, it is safest not to record your spouse at all. Separate from the strict penalties that follow from the wiretapping statute, there are other complex legal issues involved, including marital privilege that protects communications between spouses.

As in all family law matters, it is best to consult with a lawyer about gathering evidence of your spouse’s ill-treatment of you. Call our office today to set up an appointment with one of our highly qualified family law attorneys.

Child Custody And The Holidays

The winter holidays may be the most wonderful time of the year, but they are also a top contender for the most stressful time of the year. Regardless of family structure, holiday gatherings and visits can be contentious. Under the stress of cleaning and cooking and visiting in-laws, even close-knit nuclear families, amicably divorced co-parents, or happily mixed step-families might experience some tension and conflict around this time of the year.

Given the stress of preparing for holidays, and the emotions invested in family celebrations, it is more important than ever for there to be good channels of communication about scheduling. When child custody agreements are involved, communication is even more important, especially if custody arrangements or their enforcement have been contentious issues in the past.

Many shared custody agreements drawn up as part of the divorce settlements will specify holiday visitation and custody rights for each parent. For example, one parent may have the children for Thanksgiving and New Year’s, with the other parent having Christmas and the surrounding days. In the next year, the parents might swap time periods, following an alternating schedule laid out in the custody agreement.

Changes happen, however. A flight back from a visit to grandma might be delayed by snow. A family wedding might be scheduled for the days after Christmas. A teenager with a mind of her own might want to go to a friend’s cookie-decorating party close to mom’s house an hour away, even though dad has custody for that date. What’s to be done?

If ex-spouses have a cooperative relationship as co-parents, these slight changes to the schedule might be handled between the two as an oral agreement. However, it is never a bad idea to get a one-time change to holiday custody arrangements in writing. Getting any changes in writing is especially important when respect for the custody agreement (such as timely drop-off of children at the other parent’s residence, frequent requests to “swap” custodial weekends, and the like) has been an issue in the past.

If you find that your ex-spouse frequently wants to make exceptions to the custody agreement, it may be time to get legal counsel involved. In a worst-case scenario, you might have to bring legal force to your requests that the custody agreement be respected. On the other hand, however, both parties might amicably agree it is time to update the custody agreement to better reflect your family’s changed needs.

Our experienced family law partners can help you sort out issues of holiday custody.  Call today to discuss how to guarantee happier holidays for your family.

An Amicable End to Marriage

There are options available for couples who wish to bring an amicable end to their marriage.. Two of these processes, which aim to dissolve a marriage through teamwork and mutual respect, are collaborative divorce and mediation. For a couple looking for alternatives to litigation, each has its own pros and cons.

Collaborative divorce originated in the Midwest in the 1990s. In just thirty years, however, it has become a recognized method in the United States, the United Kingdom, and throughout the British Commonwealth. In a collaborative divorce, attorneys for each partner meet to discuss custody issues, alimony, and asset division. The “collaboration” between the attorneys, each working in the best interest of  their respective client, is intended to produce a divorce settlement that both parties can agree on and benefit from.

Mediation has a much wider public profile and a longer history of practice. In meditation, the couple meets together with a mediator, who does not necessarily have to be a lawyer. Psychologists, marriage and family therapists, and social workers sometimes also function as family law  mediators. In the course of ten hour-long sessions or so, the couple works together, with the mediator as a moderating influence, to nail down the details of their own divorce.

When choosing which of these methods to pursue, or whether litigation may actually be the best option, couples have to carefully examine their personal circumstances and goals for the divorce process. To generalize, however, if you have serious doubts about your ability to work in a constructive and cooperative manner with your spouse, but still wish to avoid litigation, collaborative divorce may be an option for you.

Whether your interactions with your soon-to-be-ex are just disagreeable, or whether you have been subjected to spousal abuse, collaborative divorce may benefit you by keeping you out of unpleasant or unsafe interactions with the other party. Moreover, while mediators do not necessarily have knowledge of the law, you do not need to worry about the legal knowledge of a lawyer admitted to the bar. Once details are settled, your lawyers can even help file the divorce petition with the courts and handle any issues that may arise beyond that point.

Involving not only one, but two, lawyers, collaborative divorce tends to be much more expensive than mediation. However, when significant assets are involved or one partner is hiding assets to avoid their equitable distribution, the experience of a lawyer more than pays for itself. In the collaborative divorce process, spouses have less direct involvement and less direct control over the negotiations. Even though lawyers are sworn to work in the best interest of their client, some people are more “hands-on” in their approach and would prefer to know all the details of a particular negotiation session for their own peace of mind.

Call our office today to discuss whether collaborative divorce is the right fit for your family situation.

What is a ‘gray divorce’ and how is it different from the typical divorce?

A ‘gray divorce’ refers to a split that happens between an older husband and wife, often after many years of marriage. The ‘gray’ in ‘gray divorce’ refers to the color of the divorcing couple’s hair. With more and more couples over fifty, or even over sixty-five, choosing to part ways, the phenomenon has also earned the names of ‘silver splitter’ and ‘diamond divorces.’ While it might be unsettling to think that forty years of marriage is no guarantee for many more, it is necessary to think about the particular issues that arise when senior citizens divorce.

Contrary to what the media would have you believe, gray divorces do not typically come about as part of a man’s midlife crisis. Rather, they are an outgrowth of advancements in medicine and changes in society. With people living longer than ever before, it is getting harder to “grin and bear it” in a lackluster marriage, and people are less tied to ideas of how senior citizens “should” spend their retirement.

With children grown and living on their own, gray divorces do not involve acrimonious custody disputes. However, for well-established couples, there will be extra concern for the division of property and alimony awards. With couples approaching retirement, or already retired, issues of income and savings are critical to both parties’ well-being.

If you or someone you love are involved in a ‘gray divorce’ situation, call our office today to speak with skilled family law attorneys about the best course of action.

My soon-to-be-ex-spouse is a bad influence on our children.

How can I get full custody of my children?

A judge will be unlikely to respond to the argument “My ex is a bad influence” or “My ex doesn’t know what is best for the children.” Judges hear these arguments all day, every day, during acrimonious divorce proceedings. What a parent needs to prove the former partner is not a fit parent is plenty of evidence.

The aim of divorce courts in deciding custody arrangements is to further the best interest of the child or children. For young children, this might mean keeping them with their primary caregiver. Otherwise, the court looks for a parent’s involvement with children, ability to provide financially, and ability to provide a stable environment for children. The more involved you are with your children, and the more ‘upstanding’ you are as a citizen, the more likely you are to receive at least some custody.

Importantly, courts will also consider the circumstances of the divorce. Massachusetts allows for both no-fault (no grounds) and at-fault (on grounds) divorces. The grounds for divorce in Massachusetts include, among others, adultery, total abandonment of a spouse, cruel and abusive behavior, and criminal conviction with a sentence of five years or more.

If you have evidence of disturbing patterns of behavior towards yourself and/or your children at the hands of your (soon-to-be) ex-spouse, this could form the grounds for an at-fault divorce or for you to receive primary custody.

Whatever the circumstances, if you are considering divorce, or are currently undergoing a divorce without a lawyer, call our office to discuss your options.

Massachusetts Cases Provides Guidance for Child Custody Issues in Same-Sex Divorces

Massachusetts was a leader in its early recognition of same-sex marriages. Logic dictates that the Commonwealth will also have more experience with same-sex divorce and family law matters, including child custody and support issues in cases involving the dissolution of a same-sex marriage. Three Massachusetts cases do, in fact, reflect that experience.In a 2006 same-sex divorce case (A.H. v M.P., 447 Mass. 828), one partner never adopted the child of her partner, although she was well aware of the importance of pursuing a formal adoption. Her former partner was the child’s primary caregiver. The court determined that she had no legal right to parenting time and had no support obligations as a “de facto” parent. The result in this case indicates how critical it is for one partner in a same-sex marriage to adopt the other partner’s biological child if the first partner desires to continue to have a parental relationship with that child in the event of a dissolution of a marriage.

A Massachusetts court had previously considered the rights and responsibilities of a “de facto” parent. In a 1999 case (E.N.O. v. L.L.M., 429 Mass. 824), the court determined that an adult who has no biological relation to a child, but who has participated in the child’s life as a member of his family, may be entitled to parenting time and visitation rights following dissolution of the relationship. The “de facto” parenting standard is thus a function of the facts of each specific case. A same-sex parent who does not actively participate in a child’s upbringing while a marriage is intact will have little opportunity to continue any relationship with that child after the marriage dissolves.

A more positive result came in a 2012 case (Della Corte v. Ramirez, 81 Mass. App. Ct. 906), in which the court verified that a child born within a same-sex marriage is the legitimate child of both partners. At least under Massachusetts law, adoption is not required to confer legal parentage on the non-biological parent. Other states might treat this situation differently, however, and formal adoption is still a failsafe approach to ensure both partners’ rights to a legal parental relationship with a child.

Child custody and support issues in dissolutions of same-sex marriages will likely evolve over the next several years. Partners who expect to have a continuing relationship with their children in the event of a divorce should not assume, however, that the law will favor their rights. The best course of action is to consult with an experienced family law attorney to verify that both partners’ parental rights are in their strongest position early in the relationship. If you have questions about child custody in a same-sex divorce, please call our office to speak with an experienced family law attorney.

[Read more…]

Ways to Discover Hidden Assets During a Divorce

Despite complications to the marriage, most people enter the divorce process believing their soon to be ex-spouse is an honest person. However, this is not always the situation. The fact is, dishonesty is a common reason for seeking a divorce. Regardless, even if you have no reason to suspect your former partner is a liar, there is still good cause to be curious and concerned about their finances heading into a divorce.

Once a divorce begins, many people will do whatever it takes to conceal and hold on to what they believe is their money. Moreover, some will even create secret accounts, or perform other financial actions, during the course of the whole marriage. Discovering these hidden assets, during a divorce, is the only way to ensure you receive a fair settlement.

You should never rely entirely on your spouse’s financial affidavit. The good news is an experienced divorce attorney has many tools at their disposal often including a forensic accountant or other investigators and can uncover most everything during the discovery process. [Read more…]

Child Custody Laws in Massachusetts – What You Need To Know.

Divorce is described as one of the most stressful events in a person’s life. Add children to the mix, coupled with questions of custody, support, and visitation, and emotions and stress can reach a breaking point. Wading through this difficult time calls for the help of a professional such as a divorce & family law attorney who also understands laws specific to Massachusetts.

Before you meet with an attorney, here are few pieces of information about child custody in Massachusetts that you’ll need to know in order to develop questions pertaining to your situation.

Two primary forms of child custody in Massachusetts

Physical custody determines where a child will live during certain periods of time.

Legal custody determines which parent has authority to make major decisions as in the doctor the child sees, the school the child attends, and even in which faith to raise the child. [Read more…]

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