Family Law Bits

Second parent adoptions in Massachusetts - allowing gay and lesbian couples to adopt the non-biological children of their relationship.

Second parent adoptions or “co-parent” adoptions have been allowed in the Commonwealth of Massachusetts since 1993. A second parent adoption, or often referred to as a “co-parent” adoption, allows the non-biological parent of a couple’s children to now enjoy the same legal rights and responsibilities of the biological parent. The second parent adoption gives the ability of unmarried couples to jointly petition for the adoption of children of the relationship, and is most common among gay and lesbian couples, this allows the biological and non-biological parent to be granted equal legal status, as it relates to the child or children.

In a traditional adoption, the biological parents must agree to terminate their parental rights in order for the adoption to go forward. That is not the case in a second parent adoption where the parties petition jointly for the adoption of the children.
In 1993, the Supreme Judicial Court of Massachusetts ruled that there is nothing in the Massachusetts Adoption Law that would prevent a non-biological parent from co-adopting his or her partner’s child. That the ruling was made by the highest court in the Commonwealth, and the decision is binding in all counties. Although you may notice some difference in the process from county-to-county or Judge-to-Judge, in general, couples can expect to follow the same substantive procedure.

The adoption process begins with the filing of an adoption petition and supporting paperwork. It is strongly advised that the couple use an attorney to assist them with this adoption process in these cases, as once the adoption petition and the supporting paperwork are filed, a criminal background check on all the adults in the household is required and completed. Additionally, the Court may require an in-home study, wherein the home is evaluated by a social worker to determine the suitability of your family for “the proper rearing of children.” This is conducted by the Department of Children and Families (DCF) formally known as the Department of Social Services (DSS.)

This may seem intrusive, but it is usually required to complete the process. ,Although, there are private agencies that are authorized by the Department of Children and Families to conduct the home studies and may be able to be retained by private payment to complete the home study, it still requires opening your home to inspection. It should be noted that as you may guess, there is often a substantial waiting time before DCF can get into the home.

The parties may seek a waiver of the home study, however, a waiver of the home study is not taken lightly by the Court. You and your partner can obtain information, letters of support, and affidavits attesting to the fact that you and your partner function as a family and will make good parents, but this alone may not be enough to waive the home study. It may seem counterintuitive that a biological parent who joins in the adoption process with the non-biological parent would have to go through a home study. However, the Courts normally follow the adoption process in a traditional fashion.

Your attorney can advise you as to whether or not the procedures or requirements instituted by the Court in the county where you and your family reside could be or should be waived. However, the Courts will grant the waivers within their own discretion and some may not follow the same rationale as others.

Once the petition is filed, the home study is satisfactorily completed, the CORI is returned and all background checks are also satisfactorily completed, the adoption unit in the Court will likely schedule a private hearing before the Court either in the Judge’s chambers or in a closed Court room in order to finalize the adoption.

The finalization of the adoption is generally a happy event where family and friends are invited to take pictures and celebrate the adoption of the child.

A second parent adoption is important because it grants the non-biological parent full legal rights regarding his or her child or children in a same sex relationship. It puts them at the same legal status as the biological parent. The adoption in and of itself does not change the legal relationship between the two parents, but it does give recognition and protection to both parents in the relationship to the children, especially in the event of a dissolution of the relationship, as the child would now be considered the legal child of both the biological and non-biological parent. Additionally, the child is now entitled to the benefits of the non-biological parent, such as health insurance, life insurance, and other lifetime benefits. The child, by law, may inherit upon the death of the non-biological parent as a result of the adoption, and in the absence of proper estate planning on the part of the parent, would inherit under the laws of intestate succession.

In regard to the parental rights of the parties, in the event of dissolution of the relationship, both parties would be entitled to custody and/or visitation with a minor child on its face. Each would be able to seek legal and physical custody as well as an appropriate parenting plan to allow time with the child or children.

If the child that is adopted is not biologically related to either party to the relationship, once the child is adopted by one of you, you still may petition for a second parent adoption. The process is essentially the same. Be wary, however, that many international adoptions do not allow married same-sex couples to adopt a child or for unmarried couples to jointly adopt a child abroad. If the goal is for the parties to complete an international adoption, it may be that one of you would have to adopt the child in the foreign county and then jointly adopt through a second parent adoption here in the United States.

by: Julie A. Dialessi-Lafley, Esq

The impact of divorce on your children

At some point after a separation or divorce, most people enter into a new romantic relationship. In many cases, the new relationships have already begun even while the parties are still married. Naturally, even in the worst of circumstances, it is difficult to see your once partner or spouse move on to a new relationship. This difficulty is often amplified when the relationship was on going during a marriage or at the end of one. But often even more troubling is the commencement of a relationship when there are children involved.

People often overestimate the resiliency of children and underestimate the impact the introduction of a new partner will have on a child. Children of all ages feel tremendous loss when a marriage has ended or partners are no longer together. They have lived among the emotional and financial issues related to a divorce or separation during its tendency, and now once it is final they must settle into a major change of lifestyle.

Changes in housing and living arrangements often occur, the children are now sharing two different homes. They may not be able to play the sports or enjoy the extracurricular activities they used to enjoy due to a change in the financial situation. There may be a new school, and then there is sometimes a change in how they relate to each parent.

Parents should realize that children are very perceptive and learn quickly what is a good thing to talk about in front of a parent and what they should be censoring.

The above is just a short list of issues, and anyone in a divorce or separation can assure you that there is a whole laundry list of things that have changed as a result of the action.

To that end, as a practitioner, it is my position, based on what I have seen, heard, and learned, that parents often bring a new partner or relationship into the life of the child too soon after a divorce/separation. Usually, the new romance is introduced at its beginning. Parents feel they want to be honest with their children, and for their children to see they are happy and have moved on. However, most children are put into a position of having to accept another major life change when they may be overwhelmed with the changes in the life they once shared with their parents.

Relationships are very time-intense. As a single parent, your time is limited without the new relationship, and often children are brought in to share the relationship because time is a premium. Parents would rather integrate the child into time with the new interest than sacrifice time with the child. However, in essence, the parent is taking time away from the child regardless.

Parents are well advised to spend as much one-on-one time with their children as possible after a divorce or separation. The children are trying to find their place in this new life, and they need reassurance that the parent is ok and that things will be different but happy and harmonious in their new household. The healing that takes place is important to the parent and the child individually, but is necessary for them to heal together as well.

Another concern of introducing a new relationship too early is that the children will discuss it with the other parent, and that will cause difficulty in finalizing a divorce or separation that is still on going, or in the alternative, will cause anger or jealousy in the other parent if the process has been completed. Again, it is a natural reaction even in the worst of circumstances to feel those emotions, and your children maybe caught in that cross fire. The other parent may show the dissatisfaction with the relationship, ask your children questions about the person and what is going on in your household. This is not only clearly inappropriate behavior from my position as a practitioner but devastating to a child as well to be caught in that conflict.

After a divorce, parents worry about everything from being able to parent the children by themselves to being concerned they will be alone forever.

For the dad who thinks he needs a “woman’s touch” around the house or needs a woman to help with the children……you could not be further from correct. Your children need you, and need to develop a relationship with them in that nurturing and loving role without the buffer of someone else, someone new.

For the mom who feels unloved and undesirable, guess what? Your children love you unconditionally and can look you in the eye and see the beauty that is their mother.

Relationships come and go, but your children are with you forever, and spending some time relearning each other as individual and bonding is never going to be time wasted. There will be time, in the not so distant future, for you to begin that new relationship.

Put yourself in the place of your child. Imagine how difficult it may be to see someone new at the breakfast table after an overnight visit. How would it feel to see someone show affection to your mom when it is not your dad? Your children may experience jealousy of the new person and may feel neglected by the loss of your time and attention.

These factors can make a new relationship even more difficult. Please do not forget the wounds of a divorce are not limited to just the parents, and they may still be healing in your children. If you introduce a new companion too soon you may unintentionally salt those wounds.

Another concern is that children tend to get attached quickly, and if the relationship ends, aren’t you just setting them up to feel another loss. As to the relations, will it end? No one knows for sure but what do they say about that first relationship…it is often on the rebound. Give yourself enough time to get to know yourself again, bond with your kids, and adjust to a new life.

Mr. or Mrs. Perfect is out there somewhere, and if it is meant to be, it will happen……but give it time. Good things come to those who wait!

By: Julie A. Dialessi-Lafley, Esq.

A Beneficial Benefit Discussion

I often remind my clients that just because the divorce is ordered it does not mean that the work is done. Clients must revise, at a minimum, estate plan documents, such as their will, health care proxy and durable power of attorney, as well as update beneficiaries on life insurance, pension plans and retirement vehicles. Merely because you are divorced and your separation agreement or court order deals with these assets, that does not mean the result will be the one you anticipated, negotiated, and/or bargained for.

In a landmark case of Kennedy v. Plan Administrator for Dupont Savings and Investment Plan, the plan administrator distributed the benefits of its deceased employee’s retirement plan to his ex-wife. Why? Well, the employee husband participated in a retirement plan through his job and named his then wife as the beneficiary. They eventually divorced and as part of the settlement the ex-wife waived all rights to the husband’s retirement plan benefits. However, the husband never changed the named beneficiary on his retirement plan. When he died, the plan administrator paid the benefits to his now ex-wife, in accordance with the terms of the plan.

In this case, the man’s daughter sued the plan to recover the money and the Supreme Court, in a 9-0 ruling, found the plan administrator had acted correctly. The Court’s rationale was as follows:

• The plan document clearly spelled out the procedures for designating and changing beneficiaries. The deceased had the right and the opportunity to name a different beneficiary. His failure to do so was not compensable.

• The divorce decree was not a QDRO (qualified domestic relations order,) so although the ex-wife had waived her rights to the benefits in the decree, it was not binding upon the plan or the plan document. 
• The plan administrator by law is obligated to follow the terms of the plan document, and in this case, that required distribution of the funds to the ex wife in accordance with the beneficiary designation on record with the plan.

For all of the above reasons, the plan administrator was not found liable for the distribution, but that certainly did no help the daughter or other heirs of the deceased.

By: Julie A. Dialessi-Lafley, Esq.

Caregiver education and health care authorization

On January 14, 2009 the Governor signed into law “An Act Relative to Caregiver Education and Health Care Authorization.” The law went into effect on April 14, 2009. This law creates a statutory mechanism for a parent or parents to authorize another adult to exercise concurrent parental rights and responsibilities relative to a minor’s education and health care. Therefore, if you are a caregiver, a parent may give you permission to make medical and educational decisions for the child. A caregiver is defined as a person who lives with a child but who is not a parent.

By executing a duly prepared Caregiver Authorization Affidavit, a parent can convey the authority to make education and health care decisions regarding a minor in the absence of the parent or on behalf of the parent. Once the Affidavit is signed by the parent, witnessed and notarized, it is effective, however, there is very specific language that is statutorily required and must be included in the documents. The form is not filed with a Court, but a copy of this form should be delivered to the child’s school, doctor, and dentist.

You are advised to keep a list of everyone who received the form, in the event you must notify someone about the changes. Naturally, the original should be maintained in a safe place with your other estate planning documents.

Parents should feel comfortable executing this Affidavit, and they can revoke it at any time and in the event that they disagree with the caregiver. The parent’s decision shall remain final. The use of the Caregiver Authorization Affidavit may provide some families with an alternative to filing for Guardianship of a Minor. The Affidavit is valid for two years and will need to be executed again at its expiration.

by: Julie A. Dialessi-Lafley

One child, two separated or divorced parents. Who gets the tax exemption?

In many cases situations involving divorce, or those where a child is born of two parents who are not married, there is a question about who is allowed to take the child as an exemption on their income tax return. With the exemption at $3,650, and a potential tax credit of up to $1,000 per child, this is an important consideration, as the net amount could mean a significant refund to the taxpayer. The issue of who takes the dependent is hopefully determined at the time that the divorce is granted, or by a separation agreement, or by a judgment of the court.

For tax years beginning after July 2, 2008, the IRS has finalized rules that determine the dependency requirements and clarify who is permitted to take the dependent. In most cases, the dependency will be awarded to the custodial parent unless the non-custodial parent obtains a signed waiver for that tax year and attaches it to their income tax return when filed. This rule applies regardless of what the divorce decree says, so it is important within the divorce decree to not only attend to the exemption allowance, but also to the requirement of the non-custodial spouse to sign the waiver.

In some situations, there is a joint custody agreement designating that each parent basically has the right to the child for an equal period of time. If it is not agreed upon, then detailed records should be maintained so that the person claiming the dependency exemption will be in a position to defend the taking of the exemption of dependency if audited. It is often suggested that a calendar be marked with the days and nights the child is living each the parent. It will probably be nearly impossible to reconstruct the calendar years later, when the IRS challenges the dependency.

When both parents claim the dependency, it is likely that the IRS will question both parents and review both tax returns. In normal cases, the parent with the most number of nights will win, but it is important to maintain accurate records, including vacations and times that the child may be with a grandparent so you’re in a position to count the specific number of nights. However, if a parent has a night shift and therefore is not available to watch the child at night, there is a different test that will be applied by the IRS as to the dependency.

For purposes of medical deductions, both parents may be able to take the deductions on their respective returns to the extent that they paid for medical expenses for the child, even if they are not the custodial parent and may not be the parent who is permitted to take the dependency exemptions. In the event that there is a divorce already granted but is in need of a modification for any terms, it is always important to review tax related issues when considering the net result relative to the tax effect.

By: Hyman G. Darling, Esq.

Parenting coordinators: a tool to help divorcing and divorced families

Wouldn’t it be wonderful if before a child’s activity started, divorcing parents could agree whether their child should participate? How about figuring out the details of summer and school vacations?

Unfortunately, for some reason, many parties seem bent on last minute decisions or indecision. The failure to address these matters can weigh people down and prevent positive interaction.

When divorce is eminent or has occurred, there are tools available to help parents with the issues related to their children. A parenting coordinator is one such tool that is gaining in popularity.

A parenting coordinator is a professional - a psychologist, lawyer, mediator, or social worker - who helps in the post-divorce period. A Parent Coordinator “PC” deals with the issues between the parties after the divorce has taken place and the parties are trying to function with a separation agreement that details the agreements between the parties. This is in contrast to a guardian ad litem or a custody evaluator, who observes the family at its worst moments, during the emotional turmoil of a divorce, and makes recommendations to the court about issues such as custody, parenting plans, and access to the children.

Naturally, only a court has the authority to modify an agreement or enforce its terms against a contemptuous party, but a parenting coordinator can be useful in resolving issues related to interpretation and implementation of the agreement, and thereby try to keep the parties from needing or wanting the court's regular intervention. It does not usually take too long for the parties to realize that going to court to resolve disputes is an inefficient, unpredictable, and expensive way to settle issues of a divorce and parenting matters. For those enlightened parties, the use of a parenting coordinator is growing in popularity.

Legislation in Massachusetts authorize courts to make post-judgment appointments of parent coordinators BUT only if both parents agree. It also allows the court to order the method and manner in which the PC’s fees shall be paid, and it also allows the Court to outline and specify the responsibilities of parenting coordinators. Routinely, the parties and their attorneys are integral in that process and work together with the proposed PC and the court to establish the parameters of the relationship.

Parties who use this tool open mindedly and in the fashion it was designed will likely find the PC to be an effective referee. Using an impartial third party to keep the issues in perspective and help resolve conflicts prior to the intervention of a court process benefits the parties and most importantly the children.

By: Julie A. Dialessi-Lafley, Esq.

Limited Assistance Representation: a good choice in hard economic times

Although I have previously blogged on the positive aspects of the Limited Assistance Representation (“LAR”) program available to litigants in the Probate and Family Court, I felt it necessary to make the point again. With LAR, an attorney jumps into a case for a specific purpose and then withdraws, and the client pays only for that specific event.

Of course the best course of action is to have legal representation from beginning to end, but LAR recognizes this is not always practical. In these hard economic times, people should not be discouraged by the prospect of paying costly fees. For those who cannot afford to hire an attorney for an entire case, want an attorney to come in midway through, or need help drafting a memorandum or presenting in court, LAR is the way for you.

Many times I have been in court and heard the judge say to a pro-se litigant (one who represents themselves) “you need to talk to an attorney.” Those people are about to either lose their case or have it dismissed due to lack of process or omission of critical evidence. Through the LAR program, lawyers can help salvage the action and guide the litigant to success. If this sounds familiar, I urge you to contact me to discuss how the LAR program can benefit you.

By: Melissa R. Gillis, Esq.

New Year’s resolutions

Welcome to 2009. It’s a new year, a new president has been sworn in, and history is being made. Even though the economy is of concern to say the least, you may find yourself reflecting on the past year and wondering whether you can afford to shed a few pounds. I don’t mean body fat of course; I’m talking about your spouse or partner.

Some resolutions involve decisions to not tolerate disrespectful or abusive behavior, to not fight or argue anymore, or simply to move on to greener pastures. Whatever the reason, there are many legal options and avenues available to relieve the stress that home environments can bring.

Whether it be a divorce, modification of an existing order, custody issue, or legal separation, contact your lawyer to find out how new and existing laws and procedures can act as your legal weight watchers program. Once you get started, you won’t want to stop until you’ve reach the desired goal.

By: Melissa R. Gillis, Esq.

Parent education class mandated for all in MA

It has been a long standing requirement in the Probate and Family Court that divorcing parents of minor children attend and complete an approved Parent Education Class. The class is designed to educate parents about the needs of children during a divorce, the vital role parents play in children’s lives, pitfalls to avoid, how not to place children in the middle of their parents’ disputes, and how to support children when parents live apart.

The Probate and Family Court recently announced that effective November 1, 2008, a pilot program called “For the Children” has been implemented for never married parents in Essex, Hampshire and Suffolk Counties pursuant to Standing Order 6-08. The new Standing Order mandates that parties to a Complaint for Paternity, Complaint for Custody/Support/Visitation, and in any other case involving custody or support of minor children of never married parents filed on or after July 1, 2008 now need to attend, participate, and complete the five (5) hour program. Once completed, the obtained Certificate of Completion must be filed with the Court. The program is currently offered at 63 locations around the state, and in Spanish at 3 locations.

With more and more cases filed daily by never married parents where minor children are the subject of the action, I suspect that this pilot program will soon be expanded to include the other counties in the Commonwealth. I would not be surprised if the program was implemented in Hampden County within a few months.

Melissa R. Gillis, Esq.

The holidays - a time to reflect on your marriage?

Ahhhhh, the holidays. A time for love, shopping, joy, spending money you don’t necessarily have, searching for that perfect gift, and yes, sometimes stress, tension and frustration at those we promise to love the most. You guessed it; I mean those wonderful family dynamics that only take place in anticipation of getting together with Mom, Dad, Sister Sue and Uncle Joe.

It’s important, however, that through all this chaos, the feelings of irritability and stress are kept in perspective. Do not let petty arguments escalate into confrontations between you, your children, and your spouse or significant other so much that your actual relationship breaks down. Incidents of domestic violence increase around the holidays, leading to restraining orders, loss of time with your children, and a large dose of regret. Instead, when you reach the boiling point, remember the holidays are only fleeting, and this too shall pass. If you find yourself getting so kerfuffled that you think you don’t want to be with your spouse or significant other anymore, think a little more long term before reaching any final conclusions. Consider January and February, when the mayhem is gone and life is back to normal. Do you like that normal life, or are you ready to move on to the next chapter?

Unfortunately, there will be relationships that are in the midst of breaking down to the point of demise. For these folks the holidays can be the cherry on top of the crumbling sundae called togetherness. If you are one of these people, you have two choices. You can enlist the services of an attorney now, or you can wait until after the holidays. Many of my clients do not want to go to court or start an action before the holidays, and smartly so. Not only will negotiations and arguments escalate, but children are often most affected. These decisions can have long term effect that cannot easily be changed. Children see their parents’ anger and hostility at a time of year when visions of sugar plums and menorahs should be dancing in their heads. If the parties end up with “buyer’s remorse”, you may have ignited a flame you cannot put out. If you reconcile, you will have filled the holidays with bitter memories instead of sugary sweet ones.

If you are currently in the midst of a divorce or visitation action, and have a schedule in place that does not account for holiday visits, think of how the children will feel if they don’t see their Mom or Dad during the most magical time of the year. And as much as you may not like the other parent, now is also a time to consider how they will feel not having their children to share the days with. Remember, the holidays are a time for giving and sharing, not a time to be selfish and cold. If appropriate, offer to split the day or make other arrangements so fun can be had by everyone. Remember, a little kindness goes a long way. Eventually children grow up, and they remember. Exactly what those memories consists of is up to you.

Happy Holidays.

Melissa R. Gillis, Esq.