Family Law Bits

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.

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.

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.

Custody disputes – hearing the voice of the child

Parents who are involved in child custody cases often want to know how the voice of the child is heard. Some parents actually want their child to talk directly to the Judge or testify as to what they want. Not only is this highly inappropriate for most circumstances, but one must question the ability of a child, even a teenager, to understand and recognize the implications of a change in actual "custody," not just sleeping over at Mom or Dad's house.

The Court has set forth two main ways to determine what is in a child's best interest in custody cases and hear the child's voice. In both cases, the child is never present at the Court hearings.

The first is an Attorney for the Child, typically obtained through the Children's Law Project. This is an appointed attorney authorized to speak directly to the child and actually represent them and their wishes in Court. The cost for this representation is determined using a sliding scale relative to the income of the parents. This is less costly than the second procedure, and is more of an actual representation of the child's wishes instead of an investigatory tool.

It is difficult to determine at what age it is appropriate to utilize an attorney for the child, but typically a teenager capable of making mature long-term decisions, or one that has been through some traumatic event that is spurring the complaint for change of custody, is best suited for this option.

The second tool available is the appointment of a Guardian Ad Litem ("GAL.") This is a qualified third-party, which can be an attorney or social worker, who actually performs an investigation of the allegations each party is making. The GAL visits both parents' homes, meets with them, the child, other members of the child's household, friends and family members who can offer relevant information, teachers, and medical professionals.

After the investigation is completed, which typically takes a few months, the GAL submits a thorough written report to the Court, outlining who they spoke to and what was said. Based on the totality of the situation, the GAL provides a list of specific conclusions and recommendations relative to custody, visitation, therapy, and other requested matters. While not insurmountable, the GAL reports carry heavy weight with the Court. In a hodgepodge of "he said she said," the GAL can be the one qualified person who offers a neutral, educated opinion as to what is really happening, what services for the family need to be implemented, and what is in the child's best interest.

The results of having an Attorney for the Child or GAL involved in a case can produce some surprising insight into how the other parent feels, what the child wants, or how someone is perceived by others. Parties to a custody matter should always consult with an attorney relative to their rights, the rights of the child to be heard, the rights of the other parent, and what tool is right for you given the specific circumstances under which you are involved in the dispute.

by: Melissa R. Gillis, Esq.

Custody battles - always messy, never neat

There’s no doubt about it; custody battles are nasty. A viscous battle of “he said, she said” ensues, and each parent has their own idea of what the children want, who they want to live with and why the other parent should be kept away.

There really are three main types of custody battles. The first is when something tragic has happened while in the care of one parent, ie, physical, sexual abuse, or gross neglect. The second is where the child begins to refuse to see or visit with the other parent for a variety of reasons, most often when the child is a teenager.

The third, and certainly the most damaging to the child is when parents just can’t get over their resentment for each other, and harbor such contempt that they begin to feel all would be better of if the other parent would just go away and leave them alone. Of course, when minor children are involved, the only way to do that is to cut the other parent out of the children’s lives altogether. Or maybe one parent wants to hurt the other so bad as revenge for a bad breakup that they go after most parent’s jugulars; their children. Sensitivity and irritation by smaller issues and conflicting parenting styles become blown so far out of proportion that one parent starts to believe the children are actually not safe or well cared for by the other.

And so it begins.

In order to strengthen their respective positions, parents often engage in the inappropriate activity of directly asking the children who they want to live with, what happens when the child visits the other parent and prodding for incriminating information. I believe that some parents are so clouded by their own emotions that they actually don’t see the harm to their children in asking question after question, giving them the third degree about where they went, who the other parent saw, what was said; all in an attempt to find the one golden nugget of information that could skew a custody battle their way. They never stop to consider the guilt the child feels in having to choose one parent over the other. For anyone considering this type of strategy, think again. Rest assured that in the long run, no matter what the outcome, the children will suffer the most.

Judges and lawyers alike will tell people to explore all alternatives before embarking on a long, costly and very stressful custody battle. Aside from the kids, the relationship between the parents becomes even more strained, forever damaging their ability to be civil towards each other. Like it or not, Moms and Dads need to work together for the benefit of their children. The most common settlement possibilities are more visitation to one parent, less consecutive overnights, and/or entering into individual or family therapy.

So, if you find yourself in the middle of this type of situation, what should you do? First and foremost call a Domestic Relations attorney. Once you retain the attorney, come up with a plan to defend the accusations, open yourself up to a Guardian ad Litem or Attorney for the Child, and accentuate the positive about yourself and your relationship with your child.

By: Melissa R. Gillis, Esq.

Revising a custody agreement – standards to be met

Custody disputes are never easy for the parties, as both parents presume they have the best interests of the child in mind.

When a complaint for modification is filed seeking to modify a custody arrangement, (legal, physical or both,) the burden to be met is that there is a material change in circumstances.

Recently, my client was the physical custodial parent and dad (non custodial) was seeking to expand the amount of visitation he had with the child from a limited schedule of afternoon visits to a schedule which included overnights.

Dad argues Mom is too controlling and keeps the child from him out of spite. Further he believes that the child is now older and therefore should be able to spend overnights with him. Mom is concerned about Dad's ability to parent the child, as he has not been consistent in parenting and has had supervised visits with the child for several years. Further, Dad does not communicate well with Mom and has filed to complete his Parent Education Classes, (as per the Standing Orders.)

Dad files a Complaint seeking to modify the custody and visitation schedule. After much consideration and research of the ALI-ABA guidelines, case law, treatises and the expert opinions on parenting schedules, the strongest argument that Dad should not be allowed his relief boiled down to Dad failed to meet his burden to show there was a material and substantial change in circumstances, and further, the alteration of the schedule is not in the best interest of the child.

A trial judge in a divorce litigation has broad discretion to fashion a visitation arrangement that is in the best interests of the children. Austin v. Austin, 62 Mass.App.Ct. 719, 722 (2004), fur.app.rev. granted on other grounds, 443 Mass. 1107 (2005). Pursuant to G.L. c. 208, s. 28, the initial judgment can only be modified if a "material and substantial change in circumstances have occurred" and an alteration is necessary in the best interest of the children. Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 777-778 (2005). Thus, a judge is limited in her discretion to modify a previous judgment. Cooper v. Cooper, 62 Mass.App.Ct. 130, 134 (2004). Any incidental alteration does not justify a change in a visitation or custody arrangement. The change must be both material and substantial and of sufficient magnitude to warrant an adjustment.

Rosenthal v. Maney, 51 Mass.App.Ct. 257, 261-262 (2001). Once a custody order is in place, it should not be subject to successive efforts to undermine or alter it in various ways. Otherwise, there can be no element of finality to any custodial order. See Keith v. Keith, 66 Mass.App.Ct. 1111, 1111 (2006).

There is an increasing recognition of the psychological impact that divorce has on children. Thus, courts recognize the importance of maintaining stability and continuity. "Stability is itself of enormous benefit to a child and any unnecessary tampering with the status quo simply increases the risk of harm to the child." Custody of Kali, 439 Mass. 834, 842-843 (2003). Therefore, it is critical that probate and family court judges act with care before altering visitation just because one of the parties desires a change.

In this case, the husband has not demonstrated the existence of any substantial and material change. The fact that the daughter has aged a little bit is merely an incidental alteration. For example, in Keith, the court held that the trial court erred in modifying a visitation schedule by awarding a father overnight visits. The court reasoned that the child's change from part-time to full time elementary school was not a substantial change that warranted such modification. The court rejected the father's argument and held that increase in educational responsibility as a child advances in school was an obvious and natural occurrence that cannot be considered a development of any importance; particularly after less than one and one-half years after the earlier judgment.

In my present example, the father can try to claim that a new arrangement would better serve the interests of the children based simply on the fact that the children's needs and interests change as they age. However, if that were the sole fact that could justify an annual modification, courts would then become perpetually involved in litigation over the alteration of visitation arrangements. This is precisely why the standard of "material and substantial" is so high. Cooper, 62 Mass.App.Ct. at 134.

Granting the father's modification will not be in the daughter's best interests because the father could be encouraged to return to court on successive occasions merely because his daughter has grown slightly older. Indeed, he is currently not compliant with a court order, but then seeks to have the court assert its authority over the mother. The father's method of seeking modifications to obtain his own way, but defying a court order, causes unnecessary instability in the custodial relationship and imposes an additional burden on the both the courts and the mother. See Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 781 n.22 (2005).

Additionally, granting unsupervised overnight visits is entirely inconsistent with the child's best interests. In this case, the parties cannot effectively communicate. Therefore, the introduction of unsupervised overnights will introduce yet another element of disagreement which is likely to generate opportunities for further conflict. This is problematic because the father has not even taken the appropriate parenting classes (where, presumably, he would learn strategies to effectively communicate with the mother). That result directly contradicts a desire to maintain stability and continuity. The best interest of the daughter in this case is stability, not conflict.

A modification of a visitation order, absent an agreement of the parties, should not be entertained after such a short period of time unless there are findings that articulate a significant change and demonstrate why alterations in visitation serve the children's best interest. Compare, McMahon v. McMahon, 1 Mass.App.Ct. 647,648-649 (1973) (finding that mother's unjustified anxiety about father's care that caused friction and obstruction of visits justified a change designed to reduce tensions.) Hinds v. Hinds, 329 Mass. 190, 191-192 (1952) (Father's disruptive actions with malevolent intent warranted change in custody.) Here, the father fails to articulate why the introduction of unsupervised overnight visits would benefit the daughter at this time. Rosenberg v. Merida, 428 Mass. 182, 191 (1998).

Even if the mother could be faulted by her approach to dealing with the father in this circumstance, any failure on her part to appropriately communicate with the father is not, in itself, a reason to expand the father's visitation time. The welfare of the children is the controlling consideration in a custody issue and an established arrangement should not be changed as a means to discipline either party. Stevens v. Stevens, 337 Mass. 625, 627 (1958).


by: Julie A. Dialessi-Lafley, Esq.

Custody – Physical & Legal – what’s the difference?

Legal custody refers to the parent’s right to make major decisions on behalf of the children and is distinct from physical custody, which determines where the children spend their time.

Joint legal custody means that both parents, by law, will have decision-making responsibility in major child-related issues such as education, medical treatment, religious training, recreational activities and the like. Joint legal custody is the favored designation in Massachusetts and across the country— the underlying concept being that children are entitled to the active involvement of both parents in a post-divorce context. Indeed, this is the presumption at the level of temporary orders unless the parent opposing it can show solid reasons why it is not appropriate. Symbolically, the designation “joint legal custody” seems to acknowledge for the noncustodial parent his or her continuing rights and responsibilities with respect to the children.

Practically, there is some evidence that noncustodial parents who are joint legal custodians tend to remain more involved in the development of their children and tend to meet child support obligations with more consistency. Again, joint legal custody does not imply that the children spend 50 percent of the time with each parent but rather that each parent must consult with the other one about major issues involving the children.

In general, joint legal custody is awarded to (or agreed to by) both parents, and physical custody remains with one parent, with whom the children primarily reside. Historically, it has been the mother who has been the primary caretaker. While the past several years have seen an increase in father’s caretaking, it is still true that in the majority of situations, physical custody, particularly for young children, continues to remain with the mother.

The standard, however, will always fall to what is in the best interest of the child(ren). Under this type of arrangement—joint legal custody with physical custody in one parent—the noncustodial parent typically has a set “visitation” schedule with the children. The most common schedule is every other weekend, alternate holidays, and as much time as is feasible during the summer school vacation with the noncustodial parent.

“Visitation” has increasingly become a term offensive to both parents, and more and more attorneys are attempting to characterize the concept as “father’s access schedule” or “mother’s time with the children.” Frequently, the term “parenting schedule” is used to symbolize the co-parenting of the parties or parenting time during a scheduled visit.

While the pattern I have sketched above (joint legal custody with physical custody to the mother and a fairly equal sharing of children during nonschool time) is common, it is not the only pattern. Sole custody to one parent with limited visitation for the other is an option. Another option that is becoming more popular is shared physical custody. Under this arrangement, the children have fairly equal periods of residing with each parent, such as three days at one home, four days at another or alternating weeks.

Is still widely debated whether a shared custody arrangement is really in the best interest of the children. Proponents of this approach focus on the benefit to the children of having equal access to each parent. On the other hand, critics argue that children need a “home base” and that transition between homes every few days or weeks causes too much disruption in the children’s lives.

When proposing shared physical custody, it is especially important to consider what arrangements will be necessary for day care, school and social activities of your children, and to have a plan for meeting those needs, especially if you have not been the primary caregiver. Courts generally attempt to keep children in their current home, school and neighborhood to minimize the impact a divorce inevitably has on them. Shared physical custody, while becoming increasingly more popular, requires very careful planning and extraordinary good will and cooperation on the part of both parents to succeed.

Every divorce agreement or judgment in a divorce involving children will contain a parenting plan that addresses the following: the child’s education, the child’s healthcare, procedures for resolving disputes regarding child-rearing decisions, the parenting schedule, including holiday, nonschool and visitation schedules if applicable.

Custody (or child-related) issues are the areas in divorce law that are never written in stone and are modifiable based on a change of circumstances and the “best interests” of the child. Custody is also the area in which the parents themselves are most qualified to work out schedules and sharing arrangements because lawyers and judges, as third parties to the family, really cannot tell you what will work best for you and your children.

Custody, frankly, is also the area in which lawyers and judges most loathe to see disputes. A contested legal battle for the custody of children unfortunately and invariably tends to bring out the worst in everyone and wreaks havoc not only with the parents, but with the children themselves. While litigation is sometimes unavoidable, my own view is that every alternative (including mediation and joint counseling) should be explored before litigating a custody issue.

There is an excellent book dealing with issues of children in divorce, Surviving the Breakup: How Children and Parents Cope with Divorce, by Judith S. Wallerstein and Joan B. Kelly. It is now available in paperback and in local libraries. It provides useful information on how children within particular age groups respond to divorce.

By: Julie A. Dialessi-Lafley, Esq.