Family Law Bits

Divorce: Who Gets the Pets?

As we have all likely witnessed at the park, vet’s office, or pet food store, some people treat their pets just like furry or feathered offspring – and some may even treat their pets better than they treat their children. Today, pets can have substantial value in the divorce process and are given significant consideration in divorce proceedings. For the purposes of divorce, pets are defined as non-working domesticated animals such as dogs, cats, birds, etc. Until recently, pets have generally been considered personal property in divorce actions and have been assigned to either party as a part of the division of personal property. Recently there has been a move in the courts to consider pets as more than just personal property. In 2011 Massachusetts enacted statutes allowing for enforcement of trusts created to care and provide for animals. Also, both federal and state laws have created special protections to shield animals from abuse. In the world of family law and divorce, in 2013, a New York court granted a couple’s motion to argue over pet custody for the first time in the country’s history. Some courts outside of Massachusetts have taken a “best-interest” approach to assigning pets to one party or the other (i.e. the courts have considered which of the divorcing spouses is best able to provide care, attention, and basic needs to the pet). So who gets the dog, cat or fish? The answer to the question will depend on many factors and with “pet law” evolving throughout the country, we will see a trend toward assignment of the animal based on the companion relationship of the spouses to the pets, rather than simply treating animals as merely another piece of personal property. Currently, however, pets are still viewed by a majority of the courts, including Massachusetts, to be personal property of the marital estate. Ultimately, pets are part of the division of assets and will be assigned a value in divorce proceedings. As difficult as it may be for parties who love their dog or cat to understand, a custody arrangement with visitation/parenting time is not likely to be ordered by a court in the Commonwealth of Massachusetts under the current law. If you are getting divorced and want to understand how to keep your pet, a family law attorney can provide guidance and advice. If you are considering providing for your pet’s care in the event of your death or disability, contact an estate planning attorney to assist you. Some attorneys practice within both areas of law and you may be able to find one in your community.

Julie A. Dialessi Lafley is a shareholder with Bacon / Wilson P.C. and practices in the areas of family law and estate planning. She can be reached at [email protected] or 413-781-0560.

Image credit: Pixabay 

Confidentiality issues with a child therapist

 

 

Balancing a parent's need to know what a child says to his therapist against a child's need to trust the confidentiality of what he tells that therapist is a sticky issue. This video will help you understand the implications of your decision. Michael J. Grilli, [email protected], 413.781.0560

© 2011, Bacon Wilson, P.C. This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

Massachusetts caregiver authorization affidavit

Previously, if a parent needed to have their minor child or children reside with a non-parent, the non-parent would need a guardianship to allow the non-parent the proper authority to deal with the minor children’s health care providers and school systems. 

The drawbacks included the time and cost it took to obtain the guardianship, and also the actual replacement of the parent’s rights to make decision for their children during the guardianship. Furthermore, it required the Court to both initiate the process and to terminate the guardianship. 

Now, a new law has been enacted to allow a parent to provide a caregiver concurrent authority to make educational and health and medical related decisions for their minor child. The law provides that the parents can specify any actions that the caregiver shall not be able to take and that the parents continue to retain authority to take any and all actions relative to the children’s health care and education. In addition, the parent’s decision supersedes the caregiver’s decision if there is a dispute. 

The document remains in effect until the date specified by the parent, which shall not exceed 2-years, and the document can be revoked by the parent at any time. The enactment of this law shall facilitate providing the necessary authority for a trusted non-parent caregiver care for your children’s well-being without the necessity of involving the court and the correlating time and expense that requires.

Todd C. Ratner, Esq.

When you don't want your co-parent to become guardian

As an estate planning attorney, I am often confronted with a single parent who doesn’t want the other parent to obtain custody of their joint child(ren) upon my client’s death. Generally, unless there is good cause, one parent will usually not succeed in appointing someone other than the co-parent to be guardian.

Good cause may be found if the other parent has legally abandoned the child(ren) or is unfit as a parent. In the event that the other parent seeks custody upon your death, it is typically quite difficult to prove that parent is unfit absent significant issues such as alcohol or chemical abuse, a history of violent tendencies, or mental illness. As such, if you wish to name someone other than your co-parent as guardian for your child(ren,) you may wish to inform that person that this may lead to a custody contest.

I suggest that my clients not only insert language within their Will explaining their choice as guardian and also explaining why the other parent is a poor choice, but I also suggest preparing a letter in their own handwriting with similar language that shall be attached to the Will. 

If you do not wish for your child(ren’s) other parent to gain custody, it is wise to discuss the matter with an experienced attorney that specializes in estate planning.

Todd C. Ratner, Esq.

 

Divorced with a child heading to college: Who pays?

If you're divorced with a child heading to college, and your divorce agreement didn't spell out how that expense will be handled, you may be frightened and overwhelmed. This video reviews issues you need to consider when determining how your child's college education will be funded. Melissa R. Gillis, Esq. 413.781.0560, [email protected]

This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

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.