The military, if 2 people are not married, will not consider a joint reassignment. That makes it extremely difficult when the couple has a child together and they were either sharing parenting time or one parent had sole custody but the other had regular visitation rights.  In that case, when happens all the time,  the parents will have to go back to court to settle on a new custody arrangement.

These types of cases are generally call Removal cases because one parent is usually requesting that the child be removed from Massachusetts to live full time in another state.  If the parents cannot agree on a custody arrangement on their own, the court will make a determination for them.  They will look to see what is in the best interest of the child and also whether there is a real advantage in one parent moving while another parent stays.  Usually if there’s a job or military reassignment, there is definitely a real advantage to the parent for them to leave the Commonwealth.

How the court makes a decision is very complex.  Child custody lawyers for both parents will really need to convince a judge one way or the other if the parents don’t agree.  In a lot of cases, a guardian ad litem will be very useful to a judge in making his determination.

My advice for military families is that if you’re getting divorced and figuring out the parenting and custody situation, make advance plans for what happens when one parent gets deployed or reassigned.  You don’t want to deal with the issue at a later date because you will be spending twice the time, money, energy and heartache to litigate the issue and fight again.  Figure it out the first time around.

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The GAL will work the both parties’ divorce or child custody lawyer to get a list of witnesses to talk to.  In a child custody case, they will typically want to talk to the parties and see the child interact with the parents in the home.  They will want to speak to the child’s teachers, babysitters, family members, doctors, etc.  Anyone that the GAL feels will have an opinion as to how the child is raised and the interaction between the child and the parents.

After the investigation and speaking with all the witnesses, the GAL will typically write a report to the judge detailing his investigation and lastly, make a recommendation on how custody should be ordered.

A GAL is very useful in that they will do a more extensive investigation and will be able to bring in more testimony and witnesses than if the divorce or child custody attorneys can parade in during trial.  You probably don’t want the entire family, friends, neighbors, teachers and doctors to be testifying at trial during your divorce or child custody battle.

If you’re in the Boston area and you feel you might benefit from using a GAL in your case, you should speak with your attorney.  Using a GAL can be a useful litigation strategy.

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Myth: Having Joint Legal Custody means that each parent is financially responsible for half of everything the child needs.

Truth: Whether or not a parent has legal custody of a child has nothing to do with whether or not he or she has to pay support, or how much that parent will have to pay.  Legal custody dictates who gets to make major decisions for your child, like where your child will attend school.  Child Support is based on the gross incomes of both parents, and who has physical custody of the child.  Support is paid because both parents have a responsibility to contribute to their child’s financial well-being, but the court isn’t going to order a parent to pay half if he or she can’t afford that.

Further, both parents may not be responsible for all of a child’s expenses.  Child Support is about covering the necessities in a lump sum.  Things like food, clothing, rent or mortgage payments.  There are plenty of things that aren’t considered necessary expenses, or that are covered by orders separate from a Child Support order.  There may be separate provisions for healthcare expenses, or extracurricular activities.  Often times, when it comes to discretionary spending that the parents don’t agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn’t agree), the parent who disagrees may not be responsible for any portion of the purchase.

Myth: Whether or not a parent pays Child Support determines whether or not he or she has a right to see his or her child.

Truth: The obligation to support your child and the right to spend time with your child are totally separate issues.  A parent who puts his or her child at risk may be required to pay support, even though he or she is not allowed to see the child.  Likewise, a parent who cannot pay support may have an order allowing him or her frequent visits.   In the Probate and Family Courts, judges are looking at what is in the best interest of the child.  Most of the time, this is the child having both of his or her parents in his or her life, making financial contributions at a level they can afford.

Myth: You have a right as a parent to see your child.

Truth: To a certain extent, this is true, but not the way most parents seem to think about it.  As mentioned above, the Probate and Family Court is really protecting the rights of your child; your child’s right to be safe, happy, and healthy—emotionally, mentally, and physically.  Most of the time, this interest is best served when everyone who loves your child gets to play a part in his or her life.  This is why a court will order a visitation schedule.  Not because you as a parent have a right to that time with your child, but because your child has a right to that time with you.

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Nancy left that night to go back to N. Carolina after giving up her son to Tom.  She was tired as she had had a roller coaster of emotions in the past few days.  Anxiety and sadness over losing her son to Tom and his custody papers.  Joy that with the help of the police we got her son back.  And finally extreme sadness and depression over having to give up her son again.

As soon as Nancy got back to N. Carolina, I was in touch with her and I directed her to hire a child custody attorney in her home town immediately.  After Nancy hired the N. Carolina attorney, Colleen and I worked to devise a plan.  Colleen would start a custody case in N. Carolina while I scheduled another hearing on the case here in Massachusetts.  Our hope was that once a family court judge in N. Carolina took the case, we could then transfer the Massachusetts case to N. Carolina, where I believed it belonged.  Remember that the Massachusetts family court judge didn’t make any custody determinations.  He simply took “emergency custody”.  That was his code word to me that he would be willing to let the case go if there was another judge in N. Carolina supervising the case and the child.  At the end of the day, the judge here in Massachusetts just wanted to make sure that nothing happened to the child.

After about a month’s time, we finally got the order from a N. Carolina judge saying that they’ll take jurisdiction over the case.  A copy of the jurisdictional order was apparently sent to Tom’s attorney but not the order granting my client custody until the child was back in N. Carolina.  The question now was (1) whether or not the judge here in Massachusetts will dismiss the case as I had asked and relinquish his control over the case to the N. Carolina court and (2) what would Tom’s attorney do now that he knew we were coming.  And yes, Nancy and I were coming to get her son back ASAP.

The next day, Nancy came back here in town from N. Carolina.  Early in the morning, we went back to the police with our court order from N. Carolina and asked them once again to “keep the peace.”  They didn’t object this time.  We went over to Tom’s house and there was no answer.  After a long while, we decided we should probably go over to the grandmother’s house to check.  But before we all got into our cars, my phone rings and it was Tom’s attorney.  He tells me that he’s actually over at the courthouse with Tom trying to get an emergency hearing.  It turns out, he tried to have a hearing in front of the judge without telling me (which is not allowed) and the judge made him contact me to see if I could be available.  I was there at the courthouse with Nancy in less than 15 minutes.

Tom’s attorney made the argument again that the judge should keep the child here at least until the paternity tests were completed.  However, this time, not only did I ask the court to dismiss the case again, but I had with me 2 court orders from N. Carolina.  One was giving the judge in N. Carolina the case and the 2nd was giving Nancy custody of her son.  There was nothing left to say.  The judge dismissed the case and ruled in Nancy’s favor.  She could have her son back.

Now that our legal battle was over, it came down to how we were logistically going to get Nancy’s son back.  It turns out that Tom was smart and didn’t bring the child to court with him.  We didn’t know where the child was.  I demanded that they bring the child to the courthouse within an hour.  Tom’s attorney, upset that he finally lost, said in so many words, “we’ll bring him back when we feel like it.”  It was not the answer I wanted to hear.  They left the courthouse and I immediately contacted the police again.

We spent the rest of the day going to all of Tom’s relatives to try to locate the child.  After a day of searching, we were ready to issue an Amber Alert.  At around 6PM, we get a call that Tom and his attorney showed up at the police department and was ready to turn the child over.  Nancy and I were exhausted and I was just glad that we finally knew where her son was.

We raced towards the police station where Tom, his attorney and Tom’s mother was waiting with the child.  I took the son’s hand and I walked him over to Nancy.  Nothing much was said between Tom’s side and Nancy or I.  We packed Nancy into her car with her son and before she left I gave her my last piece of legal advice, “Don’t ever come to Massachusetts again.”

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My client, who I will call Nancy (not her real name), called me from N. Carolina in a panic.  I had not yet met her at this point and while I did my usual phone intake and consultation, she told me a fascinating story.  She was the mother of a 4 year old boy whom she had with the baby’s father, Tom (not his real name).  Nancy and Tom both lived in North Carolina when they were together and when the child was born.  They were never married but raised the child together for a very short time until Tom left and they broke up.  Nancy had custody, though not officially through the courts, and remained in N. Carolina.

Nancy and Tom got along as well as any set of parents raising a child would who were never married.   Nancy would periodically allow Tom to take the child for visitation and Tom would always bring their son back.  Tom eventually moved to Massachusetts to live with his own mother.

A couple of months before Nancy contacted me, she had dropped off their son here in Massachusetts for visitation with Tom.  The agreement was that their son would visit with Tom for a couple of months until the child’s birthday, which was when Nancy would come back to Massachusetts to pick up their son and go back to N. Carolina.  A couple of months passed and a few days before Nancy was scheduled to drive up from N. Carolina to Massachusetts, she gets served with paternity and custody papers from the family court here in Massachusetts.

Tom had filed for emergency custody of their son and now refuses to give him back to Nancy.  That’s when she called me.

Nancy soon came up to Massachusetts and her and I immediately went to the police department.  We explained the situation and requested that the police escort us to Tom’s home and get back the child.  The police at first did not want to get involved and they used the excuse that a family court case was pending and they can’t get involved.  After a long time with them, I eventually got the police to go with me to “keep the peace” in getting back the child.  I had managed to convince the police to do this because I explained that there is a paternity action filed and that means that Tom hasn’t yet been legally recognized as the father.  In other words, legally speaking, a stranger was holding my client’s son so the police had to act.

Though I typically do not like getting the police involved, I had to in this case.  Police intervention is drastic and often times traumatic for children.  Just think of Elian Gonzalez.  We arrived at Tom’s condo and we tried for almost 1/2 an hour knocking on the door and windows before Tom came to the door.  He saw the police and he knew why we were there.  Thankfully without much protest, he gave up the child to us and he was reunited with Nancy.

Unfortunately for Nancy, the case was far from over.  Since there was a paternity and custody hearing in 2 days, she had to stay in Massachusetts to sort this mess out.  She stayed in a hotel and spent time with her son.  Two days later, we were in court in front of a judge to determine paternity and custody.

Tom came in with his mother (the child’s grandmother) and an attorney.  I accompanied Nancy into the courtroom.  Both sides presented our case.  Tom’s lawyer tried to convince the judge that the child should stay in Massachusetts at least while the DNA test was pending and paternity could be determined.  I argued that the case should be dismissed entirely because the mother and child resided in North Carolina most of their lives and the case should actually be brought in N. Carolina and NOT Massachusetts.  In legalese, this Massachusetts court did not have jurisdiction over my client or her son.

The judge took a moment to consider and Tom commented that he thinks Nancy was using narcotics or drugs of some kind.  This was bad because this now opens a whole new can of worms.  The judge immediately ordered that both the mother and the father submit to urine drug testing in the courthouse while we waited.  The results came back a few hours later and both Nancy and Tom came back positive for marijuana in their system.

Several things I never understood was why Tom would bring up drugs if he himself was using.  Perhaps his lawyer didn’t advise him of the implications of his statements before a court.  I’m not sure.  The bad news now is that my client tested positive and now could be ruled unfit to be a parent, at least temporarily.  The good news is that Tom also tested positive.

After a grueling day in court (almost 8 straight hours), the judge made his decision.  He ruled that the child must stay in Massachusetts.  My client was devastated! (and so was I) Nancy ran out crying and I listened to the judge’s reasoning.  He wasn’t granting custody to either Tom or Nancy.  He ordered paternity tests to be performed in the meantime.  He didn’t want to make the determination of custody but was afraid that if he didn’t take “emergency jurisdiction” of the child and kept him in Massachusetts, he wouldn’t know how either parent might react considering they both tested positive for drugs.

The most heart wrenching part of that day was after leaving the courthouse, I had to go with Nancy to give her son back to Tom and his mother.  They were grinning.  We were not.  But I knew the fight was not over and after my client calmed down, I made her realize that this was just the beginning.

…to be concluded in part 2.

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Gay people are allowed to foster children but not adopt them in some states.

“Every child deserves a mother and father.  It would be nice wouldn’t it if it did work out that way. But it’s not gonna work out that way.”

“Why are they in foster care? Because their gay parent abandoned, neglected and abused them? No. Because their straight parents abandoned, neglected and abused them.”

“Gay people don’t have children by accident…Every child that’s been adopted by a gay and lesbian couple is a wanted child.”

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In a typical custody fight during a separation or divorce, both parents will want sole physical custody.  Sometimes, they will compromise and settle for joint physical custody where the child will spend 3 days with one parent, then move and spend 4 days with another parent.  Can you imagine how difficult this is for a child?  As an adult, I would find it difficult to have to uproot myself and move every 3 or 4 days, not being able to have one permanent place I call home.  If I, as an adult, find it difficult, imagine how it affects children.

Children needs stability.  Divorce and separation is already difficult enough on a child due to massive changes in routine in a child’s life.  As parents going though separation or divorce, you need to at least be able to provide stability in as many areas of the child’s life as possible.

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Physical custody is who the child lives with most of the time.  One parent can have sole physical custody or both parents can have joint physical custody.  If one parent has sole physical custody, then the other parent (noncustodial parent) gets visitation.

Legal custody is who gets to make the decisions that involves the child.  One parent can have sole legal custody or both parents can have joint legal custody.

The most common type of arrangement is when one parent has sole physical custody and both parents have joint legal custody.  The noncustodial parent get visitation and must pay child support to the parent with sole physical custody (the custodial parent).

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Confessions of an Absentee Father

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I’ve noticed that the first thing most divorce attorneys do when a new client gets retained is start to prepare a Complaint for Divorce. A Complaint for Divorce starts the process of a contested divorce (as oppose to a Joint Petition for Divorce that starts the process of an uncontested divorce). There could be many reasons why a divorce attorney might choose to initiate a contested divorce. It might be because after their consultation with the client, they realize that the other party to the marriage would never agree to come in and sign a Joint Petition and divorce together. Maybe because they want the element of surprise by filing for divorce first. Or it could be because divorce attorneys make more money litigating contested divorces because most charge by the hour (I do not).

When practicing divorce law, it’s best to remember:

• the client’s best interest comes first, not the law firm’s bottom line
• an uncontested divorce is cheaper, quicker and less disruptive to the client and family
• if there are children, you want the client to know that they are divorcing their spouse, not the family.  They will always be a family, even after the divorce

Keeping these things in mind, the right way to file for divorce is first trying to get the parties to come to an agreement and see if there’s a way to file a Joint Petition for Divorce.  Even if it doesn’t seem possible at first or the client doesn’t want to – it is the job of the attorney to find a way and to counsel the client in what’s best.  In my practice, over 90% of my divorce filings are Joint Petitions for Divorce (uncontested).  They don’t all come to me uncontested, but taking a bit of time and effort, it’s surprising how couples can come together and agree to disagree.

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