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Probate & FamilyCourt Lawyerfor the DayTraining

Hon. Edward M. Ginsburg,

Jocelynne D. Welsh, et al.

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Program Materials

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M A R C H 2 4 , 2 0 1 7

S E M I N A R

Probate & Family Court Lawyer for the Day Training

C O C H A I R S

Hon. Edward M. Ginsburg Massachusetts Probate and Family Court (Ret.); Community Legal Aid, West Newton

Jocelynne D. Welsh, Esq. Probate and Family Court, Commonwealth of Massachusetts

F A C U L T Y

Thomas J. Barbar, Esq. Deutsch Williams Brooks DeRensis & Holland, PC, Boston

Paige D. Firment, Esq. Worcester

Joshua R. Fishbein, Esq. Department of Revenue, Commonwealth of Massachusetts

Noreen A. Mullen, Esq. Suffolk Probate and Family Court, Commonwealth of Massachusetts

Christina Paradiso, Esq. Community Legal Aid, Worcester

Sheriece M. Perry, Esq. Trial Court Law Libraries Administrative Office, Boston

Gayle Stone-Turesky, Esq. Stone, Stone & Creem, Boston

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About the Faculty HON. EDWARD M. GINSBURG is a retired associate justice of the Middlesex County Probate and Family Court. He is an adjunct faculty member at Boston College Law School and Suffolk University Law School and a frequent present-er for MCLE programs. Upon his retirement, Judge Ginsburg founded Senior Partners for Justice, and he is a mentor with the Legal Assistance Corporation of Central Massachusetts.

JOCELYNNE D. WELSH is administrative attorney for the Probate and Family Court Department and since 1985 has worked with five chief justices in that capacity. She has clerked for many of the judges as needed, and until recently sat one day a week at Suffolk Probate and Family Court acting in a quasi-judicial role on requests for administrative processing of uncontested Rogers reviews and extensions. She served as liaison to the Probate and Family Court’s pro se committee and its education committee, and is currently liaison to its guardianship committee and the Revamp Category E and F Working Group. She was a member of the SJC committee to study racial and ethnic bias in the courts, a former MBA family law section steering committee member, and former pres-ident of MAWL, the Massachusetts Association of Women Lawyers. She is cur-rently a member of the Boston Bar Association family law section. She is a graduate of Northeastern University and Suffolk University Law School.

THOMAS J. BARBAR is a principal in the family law department of Deutsch Williams Brooks DeRensis & Holland, PC, in Boston, concentrating in the fields of probate and domestic relations. He has also appeared and tried cases in the U.S. District Court in several international jurisdiction/Hague Convention cases. Prior to joining Deutsch Williams Brooks DeRensis & Holland, PC, Mr. Barbar was a sole practitioner practicing probate and family law, residential real estate, and civil litigation. He is a former cochair of the Massachusetts Bar Associa-tion’s family law section council and is a former chair of the MBA's law practice management section council. He is also a member of the MBA's executive man-agement board and the budget and finance committee. Mr. Barbar is a member of the Boston Bar Association (family law committee and trust & estates com-mittee). He holds a bachelor’s degree from Villanova University and a J.D. from New England Law | Boston.

PAIGE D. FIRMENT is a sole practitioner in Worcester whose practice is lim-ited to the area of domestic relations. She is a graduate of Pennsylvania State University and Western New England College School of Law. Ms. Firment is a fellow in the American Academy of Matrimonial Lawyers. She has participated in a number of continuing legal education programs for MCLE, including the Family Law Trial Advocacy program, and for the Worcester County Bar Associ-

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ation and Community Legal Aid. Ms. Firment is a former president of the board of Community Legal Aid and has volunteered for the Worcester Probate Court Lawyer for the Day program since its inception.

JOSHUA R. FISHBEIN is regional counsel in the Boston office of the Massa-chusetts Department of Revenue, Child Support Enforcement Division, where he manages the litigation unit and represents the Department of Revenue in mat-ters involving child support before the Probate and Family Court. Mr. Fishbein graduated from Tulane University and Tulane Law School. He has participated as a continuing legal education panelist locally as well as at national conferences and web seminars and is a member of the Greater Boston Family Law Inn of Court.

NOREEN A. MULLEN is operations supervisor for the Suffolk County Probate and Family Court in Boston. She is also coordinator of the Lawyer for the Day program for the court. Previously, she was community outreach manager for the Robert Kavin Resource Center for Pro Se Litigants. Ms. Mullen is a graduate of Suffolk University Law School and Albertus Magnus College.

CHRISTINA PARADISO is a senior supervising attorney in the family law unit of Community Legal Aid (CLA). She handles complex divorce, custody, sup-port, visitation, and abuse prevention matters at the trial and appellate level, and supervises all family law work at CLA. Before joining CLA, Ms. Paradiso was a staff attorney at the Massachusetts Department of Revenue, Child Support En-forcement Division, where she was also a special assistant district attorney for nonsupport crimes. In that capacity, she successfully prosecuted many high-profile cases. Ms. Paradiso has participated as a lecturer, panelist, and author in continuing legal education programs. She graduated from Boston University School of Law in 1996 and Boston University in 1992.

SHERIECE M. PERRY is the senior manager of the Department of Support Services for the Massachusetts Trial Courts. Within this position, Ms. Perry pro-vides state-wide oversight of the court service centers, law libraries, and judicial response. Prior to this appointment, Ms. Perry developed and managed the Ed-ward W. Brooke Courthouse Court Service Center. She has spent time as a pri-vate practitioner handling family law, probate law, and real estate law, and was a staff attorney at the Volunteer Lawyers Project. Ms. Perry has taught at Bunker Hill Community College as an adjunct faculty member and has led various train-ings. She has also served as faculty and presented at the first and second Legal Services Conferences and the Probate and Family Court Lawyer for the Day Trainings hosted by Massachusetts Continuing Legal Education. Ms. Perry au-thored a chapter on guardianship of minors in guardianship and conservatorship practice under the Massachusetts Uniform Probate Code. She serves as execu-tive vice president of the Massachusetts Black Lawyers Association and is also a member of Massachusetts Black Women Attorneys. Ms. Perry has served as an

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attorney-mentor in the Massachusetts Bar Association’s Tiered Mentoring Pro-gram. She graduated from George Washington University and Suffolk University Law School.

GAYLE STONE-TURESKY is a partner at the firm Stone, Stone & Creem in Boston, where she concentrates her practice in the area of domestic relations and probate law. Ms. Stone-Turesky currently serves as public administrator for Middlesex County and as cochair of the legislative committee for the Boston Bar Association’s family law section. She also served on the BBA Council and chaired the solo and small firm section as well as the family law section. Ms. Stone-Turesky is a member of the Divorce Center and the Massachusetts Family and Probate Inns of Court and a past member of the family law council of the Massachusetts Bar Association, where she was editor of the family law section for the MBA Section Review magazine. In 2013, Boston magazine listed her as one of its “Super Lawyers” in the area of family law. In 2007, she was appointed to the Probate & Family Court’s child support guidelines task force. Ms. Stone-Turesky graduated with honors from Simmons College in 1977 with a bachelor of arts in government and psychology and received her law degree from New England Law, graduating cum laude in 1980. While at New England School of Law, Ms. Stone-Turesky was managing editor of the New England Journal on Prison Law.

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Table of Contents Section 1: Guardianship & Conservatorship ....................................... 1

Sheriece M. Perry

Presentation Slides .......................................................................................... 3

Section 2: Alimony & Child Support .................................................. 37 Gayle Stone-Turesky

Presentation Slides ........................................................................................ 39

Section 3: Paternity ............................................................................... 51 Christina Paradiso

Massachusetts General Laws: Chapter 209C ................................................ 53 M.G.L.A. 209C § 1 ................................................................................... 55 M.G.L.A. 209C § 2 ................................................................................... 57 M.G.L.A. 209C § 6 ................................................................................... 59 M.G.L.A. 209C § 9 ................................................................................... 61 M.G.L.A. 209C § 10 ................................................................................. 65

Custody of Odette .......................................................................................... 69

Smith v. McDonald ....................................................................................... 73

Massachusetts General Laws: Chapter 208 ................................................... 91 M.G.L.A. 208 § 31A ................................................................................. 93

Section 1 GUARDIANSHIP & CONSERVATORSHIP

Sheriece M. Perry, Esq. Trial Court Law Libraries Administrative Office, Boston

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Lawyer of the Day Training: Guardianship and ConservatorshipSheriece M. Perry, Esq.Senior Manager of Support Services Massachusetts Trial [email protected](617) 878-0338

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Suggested steps to screen clients Guardianship of minors:

Where is the minor living? Where was the minor living before? Where are the minor’s parents? Why are the parents unable to care for the minor? Why does petitioner need guardianship of the minor? Are there other alternatives besides guardianship?

Guardianship of Adults: Does petitioner have a valid Medical cert. or CTR? Where is the respondent living? Why does the petitioner need guardianship? Is petitioner the health care proxy or have POA? Does petitioner need to admit respondent to skilled nursing facility or administer anti-

psychotic medication? Conservatorship:

Does the respondent own real/personal property? Does respondent need to file a lawsuit? Why does the petitioner need control over respondent’s estate? Does petitioner have a valid Medical cert. or CTR? Where is the respondent living? Is petitioner the health care proxy or have POA?

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Terminology

“Petitioner” is the term used to refer to an individual filing for guardianship over a ward or incapacitated person.

“Ward” is the term used to refer to the minor child subject to a guardianship.

“Incapacitated person” is the term used to refer to a person that does not have the legal capacity to make their own decisions.

“Respondent” is a generic terms that refers to any subject of a guardianship.

“Guardian” is the term used to refer to a petitioner that has been appointed by the Court as the guardian over a respondent and/or the respondent’s financial affairs.

“Mental retardation” has been removed from all Massachusetts statutes and replaced with “intellectual disability.”

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What is Guardianship?Two Types of Guardianship

Of a Minor (a child under 18) Absence of parent(s). Death of parent(s). Parent is unable or

unavailable to care for the child.

Parent is unfit. Guardianship may be

unnecessary if: Caregiver has parental

authorization. Parental absence is short

term. Guardian is like a parent

Of a Person Incapacitated or

Intellectually Disabled Person

Mental illness

Guardianship removes some of the IP’s autonomy and decision-making ability

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What is Conservatorship?

Conservatorship is control over an incapacitated person’s finances.A individual can petition to be guardian

and conservator over a minor or an adult.Typically, an individual petitions to be

guardian and conservator over a minor or adult at the same time.

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Guardianship and Conservatorship

A Guardian/Conservator must be appointed by a Probate Court.

A Guardian may be nominated by a minor age 14 or older, or IP.

Guardianship grants the guardian authority to care for, and to make decisions on behalf of, a minor child (the ward), or on behalf of an incapacitated adult (IP).

Conservatorship grants the conservator the authority to make decisions regarding the protected person’s finances.

The Court must approve any resignation or order any removal of a guardian/conservator.

All interested parties must receive notice.

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Guardian’s Financial Powers

Guardian may become the representative payee and collect the respondent’s social security benefits from the Social Security Administration.

Guardian can learn of assets and income, but will not have authority to spend or distribute any assets or income.

Due to Guardian’s financial powers, guardian is required to file a bond for temporary and permanent guardianship. Surety is required on the bond unless the Court determines that it is in

the respondent’s best interest of to waive surety or to require additional sureties. “Surety” is a guarantor of payment or performance if another fails to pay or perform.

Surety is routinely waived on all guardianship bonds. Mass. Gen. Laws c. 190B, §§ 5-208, 5-307.

Guardian can collect up to $5,000 per year for a minor ward. (Welfare and SSI usually do not apply) Mass. Gen. Laws c. 190B, §5-102.

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Duties of Guardian

A Guardian of a minor or an IP:is responsible for a respondent’s support,

care, education, health and welfare;shall act in respondent’s best interest; andshall exercise reasonable care, diligence and

prudence.Mass. Gen. Laws c. 190B, §§ 5-209, 5-309, 5-

313.

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Duties of Guardian

A Guardian of an IP must:preserve an incapacitated person's right of freedom

of religion; exercise authority only as necessitated by the

incapacitated person’s mental and adaptive limitations; andencourage the incapacitated person to participate in

decisions, act on his or her own behalf; and develop or regain the capacity to manage personal affairs

Mass. Gen. Laws c. 190B, §§ 5-209, 5-309, 5-313.

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Immunities of Guardian

Guardian is not personally liable for the respondent’s expenses.Guardian is not liable to third persons for

the acts of the incapacitated person by reason of the relationship. Mass. Gen. Laws c. 190B, § 5-309.

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Guardianship of Minor: Grounds

Court may appoint permanent guardian of a minor if:Parents are dead or incapacitated;Parents consent;Parental rights have been terminated by a court order;Voluntary surrender signed by parents; orCourt finds parents (jointly, or the surviving parent)

unavailable or unfit to have custody. Mass. Gen. Laws c. 190B, §§ 5-204 and 5-206.

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Guardianship of Incapacitated Person: Grounds Person must be “Incapacitated”:

An individual, who for reasons other than advanced age or minority,

has a clinically diagnosed condition that results in an inability to receive and evaluate information or

make or communicate decisions, to such an extent that the individual lacks the ability to meet

essential requirements for:physical health, safety, or self-care,

even with appropriate technological assistance. Mass. Gen. Laws c. 190B, § 5-101.

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Guardianship of Incapacitated Person: Grounds Or person must be “Intellectually Disabled”:

An individual with significantly sub average intellectual functioning (usually IQ of 70 or less) with limitations in two or more of the following adaptive skills: communication, self-care, home living, social skills, community use, self-direction, health and safety, functioning academics, leisure, and work.

Mass. Gen. Laws c. 190B, § 5-101.

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Why Guardianship for an Incapacitated Person? Person becomes incapacitated or is intellectually disabled; Person unable to make decisions regarding his/her own

health, safety, self-care; Decision-making vacuum;

In MA, no statute authorizing medical providers to look to family members to make medical decisions (case law allows it in emergencies) and no indication of who should be given priority;

Adult does not have a health care proxy or durable power of attorney;

Decisions need to be made; Disagreement among family members regarding course of

treatment; or Need to make extraordinary medical decisions (e.g., anti-

psychotics, discharge to nursing facility, amputations); Designed to balance protection of the individual with his/her

independence and self-reliance to the extent possible.

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Examples of When Guardianship May be Necessary for an IP Elderly parent with degenerative health condition –

cannot consent to treatment or placement in nursing facility;No Health Care Proxy or Durable Power of Attorney

Family member who suffered traumatic brain injury –cannot consent to participation in ongoing medical care and rehabilitation;

Disagreement among family members Disabled child turning 18 – parents can no longer make

decisions without court authorityChild entitled to public education through age 22

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When is Guardianship Unnecessary for an IP?

Person has physical or other disability but retains decision-making ability.

Person has Health Care Proxy and Durable Power of Attorney and there is no disagreement over care plans.

Person is making “poor” decisions or decisions with which family disagrees, but person is competent to make decisions.

Person retains ability to make decisions but only with assistance (technological, medical, etc.).

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When is Conservatorship necessary?

Need authority to bring a tort action on the “protected person’s” behalf.

Protected person owns property that needs to be conveyed or sold.

Protected person is beneficiary of an estate (example: a parent dies and leaves a life insurance policy for the minor child).

Individuals interested in petitioning to be a conservator should be referred to the private bar for representation.

Guardianship Process

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Who May File Petition

Anyone interested in the respondent’s welfare, including:the minor, orthe IP.

Mass. Gen. Laws c. 190B, §§ 5-206, and 5-303.

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Proper Venue

The county in which:the respondent resides at the time the petition is

filed;a will nominating a guardian was or could be

probated; oran incapacitated person is admitted to a facility

pursuant to a court order.

Mass. Gen. Laws c. 190B, § 5-105.

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Priorities

The Court shall appoint as guardian a person nominated by:

parental or guardian appointment, the minor (age 14 or older),the health care proxy or power of attorney of IP,

orthe will of a minor's parentthe will of an IP’s spouse or IP’s parent.

Mass. Gen. Laws c. 190B, § 5-207.

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Fee waiver

No filing fees for guardianship petitions. $255 Filing fee for conservatorship petition. Cost of service of process varies. $25 for each certified copy of Letters of Appointment. Petitioner is eligible for a fee waiver if s/he receives cash

public assistance. Petitioner is also eligible if s/he has a net income of less

than 125% of the poverty guidelines or is otherwise unable to pay any fees.

Filing fee for conservatorship is NOT waived by Court.

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Who May Not Be Guardian

Court shall not appoint as guardian any person who is currently being investigated or has charges pending for:

committing an assault and battery that resulted in serious bodily injury to the respondent, or;neglect of the respondent.

Mass. Gen. Laws c. 190B, § 5-107.

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Appointment of Counsel for Any Respondent

Court must appoint counsel for the respondent if:the respondent, or someone on his/her

behalf, requests appointment of counsel; orthe Court determines that the respondent’s

interests “are or may be inadequately represented.”

Anyone can file a “Request for Counsel.” Mass. Gen. Laws c. 190B, § 5-106.

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Appointment of Counsel for Parent of Minor Child in Initial PetitionCourt must appoint counsel for the parent of a

minor child if:the parent is subject to a proceeding where someone

other than a parent seeks to have himself or herself appointed as the child’s guardian; and

the parent cannot afford to pay for an attorney A parent must file an “Application for

Appointment of Counsel For Parent of Minor Child.”

Guardianship of V.V., 470 Mass. 590 (2015). Mass. Gen. Laws c. 190B, § 5-106.

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Appointment of Counsel for Parent of Minor Child in Removal Petition Court may appoint counsel for the parent of a minor

child: the parent is subject to a proceeding where he or she seeks to

regain custody of the child; the parent cannot afford to pay for an attorney; and the parent presents a meritorious claim for removal

A parent must file an “Application for Appointment of Counsel For Parent of Minor Child.” Some other logistics have been worked out

L.B. et al. vs. CJ P&F Court., 474 Mass. 231 (2016). Mass. Gen. Laws c. 190B, § 5-212.

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GAL or FSO investigation

Court may appoint a Guardian Ad Litem, or order a Family Service Officer (sometimes called a Probation Officer), to investigate the condition of the respondent and make appropriate recommendations to the Court.Mass. Gen. Laws c. 190B, § 5-106.

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Respondent’s Right to Attend Hearing

Respondent (including minor 14 and older) has right to:Be present;Be represented by counsel;Present evidence;Cross-examine all witnesses; andRequest that the hearing be closed.

Mass. Gen. Laws c. 190B, § 5-106.

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Objections

An interested person may file an objection to temporary or permanent guardianship.File an “Appearance and Objection.”Mass. Gen. Laws c. 190B, §§ 5-203, 5-

304. If objections arise, case becomes

contested.

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Steps to Obtain Guardianship

File Petition for Guardianship/Conservatorship with Court For Temporary Guardianship (optional)Give 7 days’ notice of hearing on Verified Motion for

Appointment of Temporary GuardianHearing for Temporary GuardianshipTemporary guardianship lasts 90 days Provide Post-Appointment Notice

For Permanent GuardianshipService of Process for Permanent GuardianshipSchedule and attend hearing for Permanent Guardianship (if

not already scheduled)Reporting to the Court

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Service of Process

Notice Requirements

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Notice requirements for Temporary Guardianship/Conservatorship 7 days notice before the hearing. Court may shorten or waive the notice

requirements in an “immediate emergency situation.” Serve copy of Verified Motion for Appointment of Temporary Guardian.

IN HAND to: Incapacitated person Minor aged 14+ (if minor did not provide notarized consent)

by regular, first class mail to: Parents of minor ward All interested parties, (everyone named in the petition) U.S. Veteran’s Administration, if applicable, Department of Developmental Services, if respondent is

intellectually disabled. Proof of mail is required for pro se litigants but not for attorneys Mass. Gen Laws c. 190B, §1-401; Mass. R. Probate Ct. 29B.

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Post-Appointment Notice of Temporary Guardianship/Conservatorship

Petitioner must serve a “Notice of Appointment of Temporary Guardian” on all interested parties by regular mail. Interested party has right to file a motion to

vacate temporary guardianship.A motion to vacate temporary

guardianship is heard de novo. Mass. R. Probate Ct. 29B.

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Notice Requirements for Permanent Guardianship/Conservatorship 14 days notice before the hearing. Serve copy of Petition and copy

of citation (“Notice and Order”). IN HAND to:

Incapacitated person;Minor 14+ (if minor did not provide notarized consent); andParents of minor child.

by regular, first class mail to:all interested parties, (everyone named in the petition);U.S. Veteran’s Administration, if applicable; andDepartment of Developmental Services, if respondent is

intellectually disabled. Proof of mail is required for pro se litigants but not for attorneys. Mass. Probate Ct. 29B.

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Service by Publication

If an interested party is parts unknown, or cannot be identified (for example, minor child’s father), the Court will provide instructions for publication of a notice in a newspaper selected by the Court.A fee waiver (if the petitioner is eligible)

will cover the cost of publication in a Massachusetts newspaper.

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Permanent Guardianship/Conservatorship: Return of Service

File the following with Court:original Notice and Order with signed and

completed return of service;

In cases with service by publication, also file:original uncut tear sheet from newspaper; andreturned, undelivered, certified mail to all

interested parties or signed green cards.

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Limitations on Guardianship

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Nursing Facilities

No guardian has the authority to admit an IP to a nursing facility without specific court order. The Court must first determine that the

admission is in the person’s best interest.There is a new law that allows a guardian

to admit an IP to a nursing facility for 60 days or less. Mass. Gen Laws c. 190B, §5-309

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Nursing Facilities

A court appointed guardian may admit an IP to a nursing facility, without prior court approval, for 60 days or less if:A physician recommends such admission;IP and any interested person does not object;On or before the date of admission, a written notice of

intent has been filed by the guardian with the court;A copy of the written notice has been served, prior to

filing, IN-HAND on the IP and provided to the nursing facility, and counsel for IP; and

IP is represented by counsel, or if not already represented, counsel is appointed by the Court forthwith.

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Commitment to a Psychiatric Facility

A Probate Court cannot admit the respondent to a psychiatric facility.Commitment proceedings must be brought

in the District Court. Mass. Gen. Laws c. 190B, § 5-306A.

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41

Mental Illness and Treatment with Antipsychotic Drugs

Respondents who are mentally ill are sometimes treated with antipsychotic drugs. Treatment with antipsychotic drugs

requires special court authority.

42

Substituted Judgment

The Court authorizes treatment to which the respondent would consent, if not incapacitated.Rogers v. Commissioner of Dep’t of Mental

Health, 390 Mass. 489 (1983). Counsel is provided for respondent. Mass. Gen. Laws c. 190B, § 5-306A.

23

43

Health Care Proxy

Guardian cannot revoke a Health Care Proxy. The decision of the health care agent

takes precedence over that of a guardian (absent court order to the contrary).Mass. Gen. Laws c. 190B, § 5-309.

44

Court Appointment of Guardian: Monitoring by CourtGuardian of Minor must file an “Annual Report of

Guardian of Minor.”Guardian of an IP must file a “Care Plan/Report”

within 60 days of appointment, and annually thereafter.

Court can issue a “Notice of Non-Compliance” for failure to file timely reports.

Guardian must notify the Court if the IP becomes capable of exercising rights previously limited.

Mass. Gen. Laws c. 190B, §§ 5-209, 5-309.

24

45

Termination of Permanent Guardianship

Guardianship terminates upon:Death of guardian, IP, or ward;Resignation of guardian (with Court approval);Removal of guardian by Court, upon filing of

petition by respondent or any person interested in the welfare of the respondent;Determination that IP is no longer incapacitated;

orAdoption, marriage or attainment of majority of

minor ward. Mass. Gen. Laws c. 190B, §§ 5-210, 5-310.

46

Termination of Permanent Guardianship

Forms for IP:“Medical Certificate for Termination of Guardianship

and/or Conservatorship” “Petition for Removal – Resignation – Termination of

Guardian and/or Conservator” for Adults“Petition to Expand – Modify – Limit the Powers of a

Guardian and/or Conservator” Forms for Minors:“Petition to Resign as Guardian of Minor”“Petition for Termination of Guardianship of Minor”

25

Guardianship of Minors

48

Minor must nominate his Guardian

A minor, 14 and older, must nominate his/her guardian.Petition cannot be filed without the minor’s

notarized nomination and consent.Mass. Gen. Laws c. 190B, §§ 5-206.

26

49

Required Forms to File

Petition for Appointment of Guardian of Minor* Affidavit Disclosing Care or Custody Proceedings* Notarized Waiver and Consent to Petition for Guardianship of

Minor (if possible) Notarized and Verified Consent or Nomination by Minor Military Affidavit (required in Suffolk County)* Public Assistance Affidavit* Guardianship Intake Sheet (varies by County)* Fee Waiver (Affidavit of Indigency and Court Determination re:

Costs and Fees), if applicable* Bond* If necessary:

Verified Motion for Appointment of Temporary Guardian for a Minor * Requires petitioner’s signature

50

Possible Substitute for Guardianship: Caregiver Authorization Authorizes a designated caregiver with whom the minor

resides to exercise “concurrent parental rights” re: the health care and education of minor. No notice to other parent.

Parental decision supersedes caregiver’s decision. Valid for up to two years; can be re-authorized. No Court involvement. Signed by parent, two witnesses and notary; signed by

caregiver. Possible uses: step-parents, informal kinship care, live-

in nanny, or child temporarily living with relative or non-parent.

Mass. Gen. Laws c. 201F; effective April 14, 2009.

27

Guardianship of Incapacitated Persons

5252

Required Forms to File

Petition for Appointment of Guardian for an Incapacitated Person* Medical Certificate or Clinical Team Report Note: Court can waive requirement of Medical Certificate or

Clinical Team Report upon filing a statement that it is impossible to obtain, supported by affidavit. Standing Order 1-09.

Military Affidavit* Bond* Fee Waiver (Affidavit of Indigency* and Court Order re: Costs and

Fees, with Supplement to Affidavit of Indigency) (if applicable) For Temporary Guardianship:Verified Motion for Appointment of Temporary Guardian*

Motion for Alternate Service (if necessary) & Affidavit* * Requires petitioner's signature

28

Conservatorship of Incapacitated Persons

5454

Required Forms to File Petition for Appointment of Guardian of Conservator for Disabled Person or

Single Transaction* Medical Certificate or Clinical Team Report

Note: Court can waive requirement of Medical Certificate or Clinical Team Report upon filing a statement that it is impossible to obtain, supported by affidavit. Standing Order 1-09.

Note: No Medical Certificate or Clinical Team Report is required for Conservatorship of minors. Mass. Gen. Laws c. 190B, §§ 5-401

Military Affidavit* Bond Affidavit Disclosing Care or Custody Proceedings*

Required for Conservatorship of minor only For Temporary Guardianship:

Verified Motion for Appointment of Temporary Conservator* Motion for Alternate Service (if necessary) & Affidavit* * Requires petitioner's signature

29

55

Getting a Medical Certificate or Clinical Team Report

Cost must be paid by petitioner or respondent’s estate.Petitioner could file a motion for the

Commonwealth to pay.Medical Certificate is only valid for 30 days

from date of examination.Clinical Team Report is valid for 180 days

prior to the date of filing.

56

Medical Certificate

Completed and signed by a physician, licensed psychologist, psychiatric nurse, or nurse practitioner.

Medical Certificate includes:Description of person’s cognitive and functional limitations;Evaluation of person’s mental and physical condition; Prognosis for improvement and treatment recommendations;

andDate of examination.

See Unif. Prob. Ct. Prac. XXII.

30

5757

Clinical Team Report

Completed and signed by:a licensed physician,a licensed psychologist, ANDa licensed social worker

experienced in the evaluation of intellectually disabled persons.

Time starts calculating from the oldest date of examination.

Mass. Gen. Laws c. 190B, § 5-303. See “Instructions for completing the Clinical Team Report

for Guardianship or Conservatorship.”

5858

Impoundment

Guardianship court files are open to the public.Clinical Team Reports, Medical Certificates,

Physician’s Affidavits and fee waivers are impounded by the Court and kept separately.

A person can file a “Request of Interested Party to Access Impounded Medical Information.”

If a petition for guardianship is denied, the entire file is impounded.

Mass. Gen. Laws c. 190B, § 5-303(b)(12).

31

59

Assents

Interested persons can sign the back of the petition to indicate their assent.Interested persons can also sign a

separate assent.

Finding the Forms and the Law

32

61

Guardianship Forms

Forms available on line:http://www.mass.gov/courts/forms/pfc/

pfc-upc-forms-generic.html

62

Governing Statute

Massachusetts Uniform Probate Code.Effective July 1, 2009.Mass. Gen. Laws c. 190B.Statute and interpretive comments can be

found at: http://www.massprobatecode.com/article-v/

http://www.malegislature.gov/Laws/GeneralLaws/

33

63

Standing Orders

Standing Orders of the Probate Court, available on line at:

http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/

64

Rules

• Rules and Guidelines:• General Rules of the Probate Court• MA Rules of Professional Conduct• Supplemental Rules of the Probate

Court

• West’s Massachusetts Probate Law and Rules

34

65

Uniform Practices

Uniform Probate Court Practices, available on line at:http://www.mass.gov/courts/case-legal-

res/rules-of-court/probate/pfc-practices/

66

Case Law

• Be careful of older MA case law that predates MUPC

• Look to other UPC States (CT, ME, etc.)• Be careful of MA changes to UPC

35

67

Court Service Centers

• Current locations:• Boston, Brockton, Greenfield, Lawrence, Springfield,

Worcester• Serves as a resource center to self represented litigants

in Probate, Housing, BMC/District, Superior and Juvenile Courts

• Collaborates with local legal services and community organizations to improve the service self-represented litigants receive, such as LOD and workshops/clinics.

• Offers computer access, reference materials, resources, child play space, area for trainings, and a large space for one-on-one work with self represented litigants.

o

THANK YOU

36

Section 2 ALIMONY & CHILD SUPPORT

Gayle Stone-Turesky, Esq. Stone, Stone & Creem, Boston

37

ALIMONY AND CHILD SUPPORTLAWYER FOR THE DAY TRAININGGayle Stone-Turesky, EsquireStone, Stone & Creem

ALIMONYG.L. c. 208, Section 17

Pendency of action: Alimony

39

ALIMONY DEFINITION • ALIMONY is defined as the payment of support from a spouse,

who has the ability to pay to a spouse in need of support for a reasonable length of time, under a court order

QUESTIONS TO ASK THE LITIGANTGO OVER SECTION 34 FACTORS SUCH AS:

Length of the marriage

•Short term – 5 years or less, alimony will be ½ the number of months of the marriage

•Short-Mid Term – 10 years or less, alimony will be 60% of the number of months of the marriage

•Long-Mid Term – 15 years or less, but more than 10 years, alimony will be 70% of the number of the months of the marriage

•Long Term – 20 years or less, but more than 15 years, alimony will be 80% of the number of months of the marriage

•Very Long Term – Longer than 20 years, alimony can be for an indefinite length of time

40

Health of the parties and the children born to the marriage • Age and health of the parties

• The ages and number of children

• Where the children attend school

• Educational costs

Contribution to the Assets and Liabilities of the Marriage• Acquisition of the assets

• Preservation of the assets

• Appreciation of the assets

41

Contribution to the Home • What was the litigant’s contribution to the home?

• What was the litigants contribution to the children?

• Who did what and when?

Lifestyle During the Marriage • Spending habits • Homes • Cars• Vacations • Clothing allowance • Extracurricular activities

42

Education and Employment• Educational background

• Training and expertise

• Current employment

• Vocational skills

Financial Arrangements Who earned the income?

Who paid the bills?

Who was in charge of the finances?

Who balanced the check book?

Inquire of the litigant as to the financial fabric of the family.

43

When and How to Seek Alimony• Divorce

• Motions for Temporary Support

• Trial

• Modifications

• Contempts and Arrearages

• New Alimony Statute

Helpful Advice for the Litigant • Motion Session

• Notice/marking motions with the Court

• Constable and Service

• Proposed Orders

• Motion for Fees Pendente Lite

• Deviations under the new Alimony Act

44

Terminating Alimony• Age of the parties

• Cohabitation

• Death

• Remarriage

• Complaints for Modification/Motion to Terminate

Affidavits and Orders • Affidavit in support of Motion for Temporary Orders

• Proposed Order

• Financial statements

• Supporting documentation

• Outstanding bills , foreclosure or otherwise

45

Case Law• Chin v. Merriot, 470 Mass. 570 (2015)

• Doktor v. Doktor, 470 Mass. 547 (2015)

• Zaleski v. Zaleski, 469 Mass. 230 (2014)

• Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014)

• Holmes v. Holmes, 467 Mass. 653 (2014)

Child Support G. L. c. 208, § 28 and G. L. c. 119A• Divorce • Paternity• Guardianships• Separate Support• Modification• Motions for Temporary Orders • Contempt • Complaint in Equity• Abuse Prevention Orders • Interstate Child Support action (G. L. c. 209D)

46

Child Support Guidelines • The Guidelines apply to all child support orders and judgments

entered after January 1, 2009. Revised Guidelines in August of 2013.

• There is a rebuttable presumption that these guidelines apply in all cases establishing or modifying a child support order.

• The guidelines were established to encourage joint parental responsibility for child support in proportion to or as a percentage of income.

• All parents have a duty to support their children.

Child Support Guidelines Worksheet • There are apps to go on your phone and Ipad.

Things that are inputted into the Worksheet:• Income of both parties• Cost of Health Insurance, Dental and Vision, • Cost of Child Care • Prior orders of Support, including spousal support

47

Income • All gross income

• Attribution of income

• Public Assistance

• Vocational skills

• Job search/under employed

• Ability to earn income commensurate with experience

Financial Statement • Long verses short form

• Detail the income• Detail the assets • Detail the liabilities • Day Care • Health Insurance

• Use the footnotes as advocacy • Think about deviations

48

Affidavits • Assist in drafting Affidavits in Support of Motion for

Temporary Orders

• Assist in drafting Affidavits in Opposition of Motion for Temporary Orders

• Proposed Orders/Service

Things to Consider • Uninsured Medicals

• Keeper of the Records Subpoena

• Extra-curricular Activities

• Mediation programs within the Court

• Drafting Motions for Temporary Support

• DOR – require they go to the DOR office

• Wage Assignments

49

Section 3 PATERNITY

Christina Paradiso, Esq. Community Legal Aid, Worcester

51

MASSACHUSETTS GENERAL LAWS

Part II. Real and Personal Property and Domestic Relations (Ch. 183–210)

Title III. Domestic Relations (Ch. 207–210)

Chapter 209C. Children Born Out of Wedlock (Refs & Annos)

53

M.G.L.A. 209C § 1

§ 1. Declaration of purpose; definition; responsibility for support

Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents or such other person or agency as is authorized to file a complaint by section five, to have an acknowledgment or adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visit-ation rights ordered by a court of competent jurisdiction. For the purpose of this chapter, the term “child born out of wedlock” shall refer to any child born to a man and woman who are not married to each other and shall include a child who was conceived and born to parents who are not married to each other but who subsequently intermarry and whose paternity has not been acknowledged by word or deed or whose paternity has not been adjudicated by a court of compe-tent jurisdiction; and a child born to parents who are not married to each other whose paternity has been adjudicated by a court of competent jurisdiction, in-cluding an adjudication in a proceeding pursuant to this chapter or prior law. Every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one. Each person charged with support under this section shall be required to furnish support according to his financial ability and earning capaci-ty pursuant to the provisions of this chapter.

Credits

Added by St.1986, c. 310, § 16. Amended by St.1998, c. 64, § 205.

M.G.L.A. 209C § 1, MA ST 209C § 1

Current through the 2016 2nd Annual Session and Chapter 1 of the 2017 1st Annual Session

55

M.G.L.A. 209C § 2

§ 2. Paternity; acknowledgment or adjudication; statistical information of parties; transmission to registrar

Paternity may be established by filing with the court, the clerk of the city or town where the child was born or the registrar of vital records and statistics an acknowledgment of parentage executed by both parents pursuant to section 11 or pursuant to an action to establish paternity filed pursuant to this chapter; pro-vided, however, that if a judgment or finding of paternity has been issued by a court or administrative agency of competent jurisdiction under the law of anoth-er state or foreign country or if both parents executed a voluntary acknowledg-ment of parentage in accordance with the law of another state or foreign country, such judgment, finding or voluntary acknowledgment shall be accorded full faith and credit and paternity shall not be relitigated. Upon receipt of an ac-knowledgment of paternity, the clerk of such city or town shall forward the orig-inal acknowledgment to said registrar as provided in chapter 46. Upon receipt of an acknowledgment of parentage or upon an adjudication of paternity under this chapter, the court shall transmit to the registrar of vital records and statistics a certified copy of the acknowledgment or order establishing paternity, together with such statistical information as said registrar may require, upon such form and in such format as designated by said registrar, which shall include the name, residence, date of birth, place of birth and social security number of each of the parties and the child, the sex of the child, and such additional information as the commissioner of public health deems useful for statistical and research purpos-es. Actions to establish support obligations or for custody or visitation rights may also be filed pursuant to this chapter.

Credits

Added by St.1986, c. 310, § 16. Amended by St.1993, c. 460, § 68; St.1998, c. 64, § 206.

M.G.L.A. 209C § 2, MA ST 209C § 2

Current through Chapter 50 of the 2016 2nd Annual Session

57

M.G.L.A. 209C § 6

§ 6. Presumption of paternity; mandatory joinder

(a) In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if:

(1) he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce; or

(2) before the child’s birth, he married or attempted to marry the mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child was born during the at-tempted marriage or within three hundred days after its termination; or

(3) after the child’s birth, he married or attempted to marry the mother by a mar-riage solemnized in apparent compliance with law, although the attempted mar-riage is or could be declared invalid, and

(i) he agreed to support the child under a written voluntary promise, or

(ii) he has engaged in any other conduct which can be construed as an acknowl-edgment of paternity; or

(4) while the child is under the age of majority, he, jointly with the mother, re-ceived the child into their home and openly held out the child as their child; or

(5) he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother, having re-ceived actual notice thereof, has failed within a reasonable time, to object there-to; or

(6) with respect to a child born before April 13, 1994, with his consent and the consent of the child’s mother, he is named as the child’s father on the birth cer-tificate as provided in section one of chapter forty-six.

(b) Notwithstanding the provisions of subsection (a), a husband or former hus-band shall not be required to be joined as a party if non-paternity of the child has previously been adjudicated in a proceeding between the husband and the moth-er of such child in a court or administrative agency of competent jurisdiction.

59

(c) Notice to a party joined as herein provided shall be sufficient if the summons is mailed to the last known address by a form of mail requiring a receipt and, if actual notice shall not be made as aforesaid, by publishing a copy of the notice once in each of three successive weeks in a newspaper designated by the court.

Credits

Added by St.1986, c. § 310, § 16. Amended by St.1993, c. 460, § 71; St.1998, c. 64, § 216.

M.G.L.A. 209C § 6, MA ST 209C § 6


60

M.G.L.A. 209C § 9

§ 9. Judgment or order for support; health insurance; financial statement; determination of amount; notice

Effective: November 4, 2012

(a) If the court finds that a parent is chargeable with the support of a child, the court shall make an order in accordance with subsection (c) requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a par-ent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an edu-cational program, excluding educational costs beyond an undergraduate degree. Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent’s ability to pay under subsection (c) and any support provided by the par-ent during such period. An order or judgment of support pursuant to this chapter shall be entered notwithstanding the default of the defendant or his failure to appear personally upon a showing that notice was served in accordance with the applicable rules of court. For good cause shown, the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in ac-cordance with rule 60(b) of the Massachusetts Rules of Domestic Relations Pro-cedure. When the court makes an order or judgment for maintenance or support of a child, said court shall determine whether the obligor under such order or judgment has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the child for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the sup-port judgment or order a requirement that the obligor exercise the option of ad-ditional coverage in favor of the child or obtain coverage for the child. An order may be entered requiring a parent chargeable with support to reimburse the mother or the department of transitional assistance or the office of Medicaid or the executive office of health and human services for medical expenses attribut-able to the child or associated with childbirth or resulting from the pregnancy.

61

(b) Upon demand by either party, including the IV-D agency, the other party shall be compelled to provide a financial statement, except that the IV-D agency shall not be compelled to provide a financial statement for a recipient of public assistance, and, provided further, if no party makes such a demand, the court may require a financial statement of each party.

(c) In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice of the trial court. There shall be a rebuttable presumption that the amount resulting from application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into considera-tion the best interests of the child, the court determines that a party has over-come such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. In the event that no child support guidelines are in effect, the court shall make such order as is in the best interests of the child, taking into consideration the financial ability and earning capacity of the parents of the child.

(d) It shall not be a defense that the parent from whom support is sought has ceased to have custody or the right to custody of a minor child for whom support is sought, or that the custodial parent is interfering with the other parent’s right of visitation.

(e) If the child on whose behalf an order of support is sought is a recipient of benefits pursuant to chapter 117, 118 or 119 and the department of transitional assistance, the department of children and families, the division of medical as-sistance or any other public assistance program has not been made a party as required by section 5, the court shall notify the IV-D agency of the order or judgment of support.

(f) In determining the amount to be paid, the court, in addition to applying the standards established by the chief justice of the trial court, shall determine whether the obligor is responsible for the maintenance or support of any other children of the obligor even if a court order for such maintenance or support does not exist. If the court determines that such responsibility does, in fact, exist and that such obligor is fulfilling such responsibility, such court shall take into consideration such responsibility in setting the amount to be paid under the cur-rent order for maintenance or support.

62

Credits

Added by St.1986, c. 310, § 16. Amended by St.1988, c. 23, § 69; St.1989, c. 287, § 60; St.1989, c. 341, § 94; St.1992, c. 286, § 258; St.1993, c. 460, §§ 73, 75, 75A; St.1995, c. 5, §§ 82 to 84; St.1995, c. 38, §§ 167, 168; St.1996, c. 199; St.1998, c. 64, §§ 222 to 226; St.2008, c. 176, § 112, eff. July 8, 2008; St.2011, c. 93, § 41, eff. July 1, 2012; St.2012, c. 224, § 219, eff. Nov. 4, 2012.

M.G.L.A. 209C § 9, MA ST 209C § 9


63

M.G.L.A. 209C § 10

§ 10. Award of custody; criteria

Effective: August 8, 2014

(a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to an-other suitable person as hereafter further specified as may be appropriate in the best interests of the child.

In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental rela-tionship with the child or has exercised parental responsibility in the best inter-ests of the child.

In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.

(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custo-dy, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.

(c) If either parent is dead, unfit or unavailable or relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.

(d) If a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court. Such custody may also be ordered if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court.

65

(e) In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of im-minent bodily injury. “Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or be-tween a parent and child: (a) attempting to cause or causing serious bodily inju-ry; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265. For the purposes of this section, if the child was conceived during the commission of a rape and the parent was convicted of said rape, under sections 22 to 23B, inclu-sive, of chapter 265 or section 2, 3, 4 or 17 of chapter 272, said conviction shall be conclusive evidence of a serious incident of abuse by the convicted parent.

A probate and family court’s finding by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable pre-sumption that it is not in the best interests of the child to be placed in sole custo-dy, shared legal custody, or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this sec-tion, an “abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.

For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admis-sible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the pro-bate and family court that a pattern or serious incident of abuse has occurred.

If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best in-terests and provides for the safety and well-being of the child.

66

If ordering visitation to the abusive parent the court shall provide for the safety and well-being of the child, and the safety of the abused parent. The court may consider:

(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;

(b) ordering visitation supervised by an appropriate third party, visitation center or agency;

(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;

(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;

(e) ordering the abusive parent to pay the costs of supervised visitation;

(f) prohibiting overnight visitation;

(g) requiring a bond from the abusive parent for the return and safety of the child;

(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and

(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.

Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.

Credits

Added by St.1986, c. 310, § 16. Amended by St.1993, c. 460, § 76; St.1998, c. 179, § 6; St.2014, c. 260, § 17, eff. Aug. 8, 2014.

M.G.L.A. 209C § 10, MA ST 209C § 10


67

61 Mass.App.Ct. 904 Appeals Court of Massachusetts.

CUSTODY OF ODETTE.1

No. 03–P–343. |

June 11, 2004.

Synopsis

Background: Mother appealed from an order of the Probate Court awarding joint custody of minor child to her and father, the unmarried parents of child.

Holding: The Appeals Court held that finding that mother and father had not demonstrated inability to communicate and cooperate concerning major deci-sions affecting minor child was insufficient to support order awarding joint cus-tody.

Order awarding joint custody vacated, and matter remanded.

Attorneys and Law Firms

The case was submitted on briefs.

Janis E. Martin & Christopher R. Whittingham, New Bedford, for the mother.

Opinion

RESCRIPT.

The mother appeals from a July 31, 2002, order awarding joint custody to her and the father, the unmarried parents of a daughter born on June 25, 2000.

We take our facts from the findings of the judge. An abuse prevention order issued on July 19, 2000, and was extended until August 1, 2001. The mother agreed to modify the order so that contact for the purpose of arranging visitation would not be a violation of the order. After genetic testing sought by the father indicated that the probability of paternity was greater than ninety-nine percent, the parties acknowledged paternity. On April 17, 2001 (inadvertently described in the findings as 2000), a temporary order issued permitting the father to con-tinue to have three two-hour visits per week and requiring him forthwith to at-tend and complete an anger management program. The order required the visits to be supervised until the father enrolled and completed the anger management program and also required his brother-in-law or his sister to be present at the

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time of the picking up and dropping off of the child. If the father were more than ten minutes late, all visits subsequent were to be supervised.

The father completed an anger management program, and on August 14, 2001, the parties entered into a stipulation, made an order of the court, providing for specified hours of visitation,2 for vacating of the abuse prevention order, and for child support. On February 2, 2002, the parties entered into another stipulation, also made an order of the court (inadvertently described in the judge’s findings as issued in 2001), which increased visitation to include overnight visits on al-ternate weekends.

The judge stated that the parties, in a stipulation on the date of trial, agreed on all issues except the issue of legal custody and Christmas visitation.

The judge also found that the parties had established a suitable parenting plan addressing the child’s medical needs3 as well as a reasonable visitation schedule. He found the father “is capable of caring for [the child] as well as making major decisions concerning her well-being, and there is no evidence ... to suggest that he is an unfit parent.” The judge also stated that the parties do not have any fun-damental differences in the major areas of child rearing.

The following finding is the primary focus of this appeal.

“17. Despite limited communication and differences between the parties, they have not demonstrated an inability to com-municate and cooperate concerning major decisions affecting [the child].”

The statute permitting joint custody, G.L. c. 209C, § 10(a ), as inserted by St.1986, c. 310, § 16, provides, in relevant part, as follows:

“In awarding the parents joint custody, the court shall do so only if the par-ents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests” (emphasis supplied).

There is no agreement as to joint custody. The mother’s testimony sets forth serious problems between the parties. The father’s testimony indicates that the mother “had kicked me in and out so many times” and that “there was definitely tension” between them. When asked why he was reluctant to have a significant amount of communication with the mother, the father answered that it was a result of the restraining order. “I don’t want to leave myself vulnerable to have another false accusation....”

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In view of the evidence from both the mother and the father indicating limited communication and differences, a matter also found by the judge, we consider that the statute requires more than a finding that the parties have “not demon-strated an inability to communicate and cooperate concerning major decisions affecting [the child].” To support an award of joint custody the statute requires a positive finding that they have such an ability.

In the absence of such a finding, and in light of the evidence which strongly suggests that there is hostility between the parties, see R.H. v. B.F., 39 Mass.App.Ct. 29, 43, 653 N.E.2d 195 (1995), S.C. sub nom. Custody of Vaughn, 422 Mass. 590, 664 N.E.2d 434 (1996), we consider it necessary to remand the matter to the Probate and Family Court to determine whether the evidence per-mits such a positive finding. The judge in his discretion may hear additional evidence.

Accordingly, the order awarding joint legal custody is vacated, and the matter is remanded to the Probate and Family Court for further proceedings consistent with this opinion.

So ordered.

All Citations

61 Mass.App.Ct. 904, 810 N.E.2d 814

Footnotes

1 A pseudonym.

2 Mondays and Wednesdays from 4:00 P.M. until 7:00 P.M. and Saturdays from 10:00 A.M. until 4:00 P.M.

3 The mother challenges the finding that the parties have stipulated regarding the medical needs of the child. The father testified that he has procured insurance for the child.

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458 Mass. 540 Supreme Judicial Court of Massachusetts,

Worcester.

Stephen D. SMITH, Jr. v.

Danielle McDONALD.

SJC–10670. |

Submitted Oct. 7, 2010. |

Decided Dec. 14, 2010.

Synopsis

Background: Father brought action against mother to establish paternity. The Probate and Family Court Department, Worcester Division, Lucille A. DiLeo, J., entered judgment. Mother appealed.

Holdings: Following sua sponte transfer, the Supreme Judicial Court, Cowin, J., held that:

[1] judge lacked statutory authority to compel mother who had moved out of state to return child to state without altering physical custody;

[2] there was no error in award of visitation to father;

[3] judge could not award joint legal custody without an explicit and supportable finding that parents had cooperated in the past and would be able to do so in the future; and

[4] analysis used for determination if relocation was in child’s best interests would not apply on remand.

Affirmed in part, vacated in part, and remanded.

Marshall, C.J., concurred and filed opinion in which Spina, J., joined.

Attorneys and Law Firms

Barbara J. Katzenberg, for the mother.

Julie A. Rougeau (Leila Wons & William Hickey with her), Franklin, for the father.

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Christina L. Paradiso & Edward M. Ginsburg, for Legal Assistance Corporation of Central Massachusetts, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.1

Opinion

COWIN, J.

A child was born to the defendant, Danielle McDonald (mother), and the plain-tiff, Steven D. Smith, Jr. (father), who were not married. When the child was six months old, the mother moved with the child from Massachusetts to New York. Subsequently, as part of the proceedings at issue in this case, the plaintiff was determined to be the legal father of the child. A judge of the Probate and Family Court ordered the child returned to Massachusetts, gave sole physical custody to the mother, and awarded visitation rights and joint legal custody to the father. The mother challenges various provisions of the judgment. The evidence sup-ports the judge’s determination that the best interests of the child require a meaningful opportunity for a father-child relationship, and the judge acted with-in her discretion in developing a plan to increase contact between the father and the child. However, the judge’s order to return the child to Massachusetts ex-ceeded her statutory authority, and the judge’s decision to award joint legal cus-tody was not supported on this record. Given the current circumstances of the parties, the case requires further action by the judge in the Probate and Family Court, and we remand for that purpose.2

1. Background and prior proceedings. We set forth the following facts drawn from the findings of the Probate and Family Court judge, reserving some facts for later discussion. The mother and father met and conceived the child in late 2006. The parties never married. Their relationship ended within a few months, but they remained in contact during the pregnancy and discussed visitation and child support. The mother did not want the father present at the birth, but told him that he would be listed on the birth certificate. The child was born on Au-gust 29, 2007. The father began paying voluntary child support of $400 every two weeks, and visited the child for a few hours each week, in sessions super-vised by the mother. At the time, the mother lived in Milford and the father lived in Bellingham, approximately fifteen to twenty minutes away.

Early in 2008, the visitation arrangement deteriorated. The father discovered that he was not on the child’s birth certificate, and on February 21, 2008, he filed a complaint and motion for temporary orders in the Probate and Family Court. He sought to establish paternity, formalize child support, and obtain both unsuper-vised visitation rights and a requirement that the parents notify each other before taking the child to another State.3 He visited the child at the mother’s home in

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Milford on February 27, 2008, but did not inform the mother of the court action until March 1, 2008, when they spoke by telephone. During his last visit, the father did not observe any signs that the mother was about to move.

On February 28, 2008, the mother vacated her apartment in Milford. On March 1, 2008, she moved to Batavia, New York, approximately 400 miles from the father’s home in Bellingham. The mother did not tell the father of the move when they spoke on the telephone that day. He learned that the mother and child had moved when, several days later, service of the complaint on the mother was attempted at her Milford apartment.

After receiving this information, the father sought and obtained an ex parte tem-porary order that the mother and child return to Massachusetts immediately. The order was stayed pending trial. Prior to trial, the parties filed a stipulation for voluntary acknowledgment of parentage affirming the father’s paternity. The parties do not dispute that the father paid voluntary child support until trial be-gan in July, 2008. During trial, the father added a request for joint legal and physical custody.

The trial judge entered a judgment in December, 2008, and findings of fact and conclusions of law followed. The judge found that, while the father was dedicat-ed to developing a relationship with his offspring, the mother believed the father did not deserve time with the child. The mother refused to give the father unsu-pervised time with the child, was “hostil[e]” in her communications, hindered the father’s efforts to obtain more visitation, and intentionally concealed her plan to relocate.

With respect to the relocation, the judge determined that the mother had moved without permission of the father or the court. Applying the test set forth in Yan-nas v. Frondistou–Yannas, 395 Mass. 704, 711–712, 481 N.E.2d 1153 (1985) (Yannas ), the judge found that the mother had not shown that moving to New York offered a “real advantage” to the mother or the child. The mother claimed she had relocated because her own mother lived in Batavia and because the costs of living were lower there. The judge found, however, that her real purpose was to deprive the father of a relationship with the child. Furthermore, the mother had not demonstrated that she had gained any economic, social or emotional advantage from the move. The judge concluded that the relocation to New York was not in the best interests of the child, the mother, or the father. The move “significantly impacted bonding” between the father and child at a “critical age” when the child needed consistent contact with both parents; deprived the mother and child of support systems in Massachusetts; and reduced substantially the father’s visitation with the child.

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The judge ordered the child returned to Massachusetts within sixty days, and prohibited future removal absent permission of the other parent or the court. The judge awarded the mother sole physical custody and gave the parties joint legal custody. The father was ordered to pay child support in the amount of $260 per week and provide health insurance for the child. The judge ordered that the fa-ther have a schedule of “parenting time” with the child that gradually increased over several months, progressing to overnights after two months and weekends after four months, as well as holidays and increasingly long summer vacations.

After the judgment entered, the mother sought and obtained a stay of the order to return to Massachusetts from a single justice of the Appeals Court. The same single justice later vacated the stay effective May 11, 2009, and the mother and child moved back to Massachusetts.4 The mother appealed from the judgment of the Probate and Family Court, and we transferred the case sua sponte.5

2. Legal framework. The best interests of the child is the “touchstone inquiry” in child custody, visitation, and relocation cases. Custody of Kali, 439 Mass. 834, 840, 792 N.E.2d 635 (2003); Yannas, supra at 710–711, 481 N.E.2d 1153. On the basis of the evidence presented, the judge must identify the parenting and living arrangement that “can best satisfy the child’s welfare and happiness.” Opinion of the Justices to the Senate, 427 Mass. 1201, 1204, 691 N.E.2d 911 (1998). While “the feelings and the wishes of the parents should not be disre-garded, the happiness and the welfare of the child should be the controlling con-sideration.” Vilakazi v. Maxie, 371 Mass. 406, 409, 357 N.E.2d 763 (1976), quoting Jenkins v. Jenkins, 304 Mass. 248, 250, 23 N.E.2d 405 (1939). At the same time, the court must not pursue blindly some “optimum” arrangement for the child and must give due regard to the adequacy of the status quo. Custody of Kali, supra at 843, 792 N.E.2d 635.

The statute governing nonmarital children,6 G.L. c. 209C, establishes a compre-hensive scheme for determining paternity and for establishing child support, visitation, and custody rights for children born outside of a marriage. The statute declares that nonmarital children “shall be entitled to the same rights and protec-tions of the law as all other children.” G.L. c. 209C, § 1. A putative father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication, or by filing a voluntary acknowledgment of paternity executed by both parents. G.L. c. 209C, § 2.7 Once paternity is established, however, the father, if not unfit, has a constitutionally protected right to parent and maintain a relationship with his child. See C.C. v. A.B., 406 Mass. 679, 685–686, 550 N.E.2d 365 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651–652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The court may award custody and visitation rights to an adjudicated father, G.L. c. 209C, §§ 1, 10, and may order an adjudicated father to provide financial support and health insurance for a child, G.L. c. 209C, § 9.

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Prior to a legal determination of paternity, the child’s mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. See G.L. c. 209C, § 10 (b ).8 In modifying custody, the court may award sole custody to either parent or joint custody to both parents “as may be appropriate in the best interests of the child.” See G.L. c. 209C, § 10 (a ). Joint custody may be awarded, however, only if the parents previously have made a formal custody arrangement approved by the court, or if the court finds the parents have demonstrated an ability to cooperate in raising the child.9 Moreover, the statute provides a framework for the court’s “best interests” analysis by requiring the court to preserve the child’s relation-ship with the “primary caretaker parent” when possible, and by mandating con-sideration of preexisting parental and living arrangements.10 These statutory re-quirements “neither replace the ‘best interests of the child’ standard nor limit the factors that a judge may consider in determining what custodial arrangements are in the best interests of the child.” Custody of Kali, supra at 843–844, 792 N.E.2d 635.

General Laws c. 209C does not address the relocation of nonmarital children outside the Commonwealth. Relocation of children of divorced parents is gov-erned by G.L. c. 208, § 30, which requires a parent with physical custody to obtain either the consent of the child’s other parent or a court order before mov-ing the child outside the Commonwealth.11 The court may authorize relocation of the child “upon cause shown,” meaning that the removal must be in the child’s best interests. Yannas, supra at 711, 481 N.E.2d 1153. While a statute governing divorced children is not applicable directly to nonmarital children, the legal equality of nonmarital children pursuant to G.L. c. 209C, § 1, dictates the same rule apply for children in comparable circumstances. Accordingly, when a nonmarital child has two legal parents, the parent12 with custody may not move the child outside the Commonwealth without the permission of the other parent or of a court. See Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 775, 857 N.E.2d 32 (2006).13

When a parent has sole custody of a child and seeks to relocate with the child outside the Commonwealth over the other, noncustodial parent’s objection, the analysis articulated in Yannas, supra at 710–712, 481 N.E.2d 1153, applies whether the parents are separated, divorced or were never married.14 The Yannas analysis recognizes that “the best interests of a child are ... interwoven with the well-being of the custodial parent,” and that moving may afford benefits to the custodial parent that, in turn, benefit the child. Id. at 710, 481 N.E.2d 1153, quoting Cooper v. Cooper, 99 N.J. 42, 54, 491 A.2d 606 (1984). Accordingly, the court should first consider whether the custodial parent can “establish[ ] a good, sincere reason” for the move, demonstrating that the move offers a “real advantage.” Yannas, supra at 711–712, 481 N.E.2d 1153. If so, the judge must balance the relative advantages to the custodial parent from the move, the poten-tial impacts on the child’s development and quality of life, and any effects on

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the relationship between the noncustodial parent and the child. No single factor is determinative, id., and “the best interests of the child[ ] always remain the paramount concern.” Id. at 710, 481 N.E.2d 1153. See Williams v. Pitney, 409 Mass. 449, 455–456, 567 N.E.2d 894 (1991) (describing proper application of Yannas test).

3. Discussion. Determining what parenting and living arrangements will be in a child’s best interests “presents the trial judge ‘with a classic example of a discre-tionary decision.’ ” Youmans v. Ramos, 429 Mass. 774, 787, 711 N.E.2d 165 (1999), quoting Adoption of a Minor (No. 2), 367 Mass. 684, 688, 327 N.E.2d 875 (1975). The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit. See Custody of Zia, 50 Mass.App.Ct. 237, 243–244, 736 N.E.2d 449 (2000). The judge’s findings of fact will be left undisturbed unless clearly erroneous. Custo-dy of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). Absent clear error, we review the judge’s determination of the child’s best interests only for abuse of discretion. Mason v. Coleman, 447 Mass. 177, 184, 850 N.E.2d 513 (2006).

The judge’s duty in parenting disputes is to craft a system of parenting that, tak-en as a whole, furthers the welfare of the child. Here, the judge concluded essen-tially that the child’s best interests were promoted by contact with his father. That conclusion was supported by the judge’s findings. The judge found that the child was deprived of adequate opportunities to bond with the father and that this deprivation was aggravated both by the child’s relocation to New York and by the mother’s refusal to permit unsupervised visitation. The judge found also that the father sought actively to have a significant role in his child’s life, and that such a relationship would be beneficial to the child. Those findings were plainly permissible on this record.

Having concluded that the father and child needed “adequate alone time,” the judge was faced with the question how to achieve that goal where the parties lived over 400 miles apart. The judge’s solution was to order the child returned to Massachusetts while retaining sole physical custody in the mother, and to award the father joint legal custody and frequent visitation. However sensible that parenting arrangement might be in the abstract, it exceeded the judge’s stat-utory authority. Although probate judges have broad equitable powers to act in the best interests of children under their jurisdiction, E.N.O. v. L.M.M., 429 Mass. 824, 827–828, 711 N.E.2d 886 (1999), those powers are not unlimited. In the circumstances of this case, the judge lacked authority to order the child re-turned to Massachusetts without altering physical custody.15 Moreover, the judge’s award of joint legal custody was unsupported by her findings and thus was not permitted by the statute.

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a. Order to return to Massachusetts. The judge, as noted, concluded that the mother was required to obtain the consent of the father or the court before relo-cating with the child to New York. As a result, the judge employed a Yannas analysis to determine whether living in New York was in the child’s best inter-ests, concluded that it was not, and ordered the child returned to Massachusetts. Because the judge also ordered the mother to retain sole physical custody, the mother effectively was ordered to return to Massachusetts as well. In the cir-cumstances of this case, the mother was not required to obtain permission to relocate when she did, and consequently the judge’s approach was erroneous.

In past cases evaluating a parent’s relocation outside Massachusetts with a child, the child had two legal parents between whom custodial rights had been allocat-ed at the time of relocation. See, e.g., Mason v. Coleman, supra at 183, 850 N.E.2d 513 (father with joint legal and physical custody refused to allow ex-wife to relocate with children to New Hampshire); Wakefield v. Hegarty, supra at 773, 775, 857 N.E.2d 32 (adjudicated father with joint legal custody of non-marital child refused to allow mother to relocate with child to Virgin Islands). Because the child in question had two legal parents, permission to relocate was required in order to protect the rights of the other parent to develop a relation-ship with the child. See Wakefield v. Hegarty, supra at 775, 857 N.E.2d 32. When a parent violated that requirement by relocating without the necessary consent, a judge properly could order the parent to return to the Commonwealth with the child. See Cartledge v. Evans, 67 Mass.App.Ct. 577, 578, 855 N.E.2d 429 (2006) (removal request denied, and mother who relocated with child to Connecticut while removal request was pending before court was ordered to return to Massachusetts with child).

Permission to relocate, however, is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to deter-mine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2, the mother is the child’s only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child. The court cannot reverse the parent’s lawful relocation or require the legal parent to meet the standards of a Yannas analysis by demonstrating a “real ad-vantage” resulting from the move.

Here, the child had only one legal parent when the mother relocated to New York on March 1, 2008. Because the father’s paternity had not been adjudicated or voluntarily acknowledged, he had no legal rights vis-à-vis the child. The mother was free to move with the child wherever she wished. She was not re-quired to seek permission to relocate, nor was it appropriate to apply the first step of a Yannas analysis and require her to demonstrate that the relocation con-ferred a “real advantage.” Because the mother had relocated lawfully with the child, the mother could not be ordered subsequently to return to Massachusetts.

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The judge’s analysis in this case was marred from the start by her faulty assump-tion that the mother was obligated to seek consent of the father or the court to relocate to New York with the child. In awarding custody, the judge had to take as a given the residences of both parents at the time she rendered her decision. The judge had only three permissible options: she could award sole custody to the mother and have the child reside in New York, award sole custody to the father and have the child reside in Massachusetts, or award joint custody and have the child reside part of the time at each of the parents’ residences. Taking into account opportunities for visitation and the limitations enumerated in G.L. c. 209C, § 10 (a ),16 the judge had to select the one custody arrangement of those three that was in the child’s best interests. Although the judge’s “fourth option” might have been ideal for the child, it exceeded her authority.

The judge’s erroneous analysis requires that we vacate the order to return the child to Massachusetts. The orders regarding custody and visitation were en-twined inextricably with the erroneous order to return to Massachusetts and must be vacated as well. The judge’s Yannas analysis was not the appropriate framework in which to evaluate the best interests of the child, and it is not clear that, had she not employed that approach, she would have developed the same plan regarding “parenting time” and custody. While a remand is therefore re-quired, we briefly address the mother’s other objections to the judge’s orders.

b. Visitation schedule. As stated, the judge ordered a gradually increasing schedule of “parenting time” for the father, including holidays and, over time, overnights and weekends. When one parent has sole physical custody of a child, the other parent is ordinarily entitled to reasonable visitation. See C.P. Kin-dregan, Jr. & M.L. Inker, Family Law and Practice § 48:1, at 496–497 (3d ed. 2002). That presumption applies equally to parents of nonmarital children. See Normand v. Barkei, 385 Mass. 851, 851–852, 434 N.E.2d 631 (1982). It arises from the general principle that having contact with both parents benefits a child. See Felton v. Felton, 383 Mass. 232, 234, 418 N.E.2d 606 (1981). See also Piz-zino v. Miller, 67 Mass.App.Ct. 865, 871, 858 N.E.2d 1112 (2006) (noncustodial parent “has an independent interest in continued, meaningful involvement with the upbringing of his or her child”).

The mother claims the judge erred in awarding the father “extensive and lengthy visitation that quickly accelerated to overnights and weekends.” The mother notes that the judge did not address certain issues raised at trial, namely that the child continued to breast feed and nursed frequently, ate an exclusively vegetari-an diet, wore cloth diapers, slept with the mother, and had never been away from the mother for more than three hours. She objects also that the judgment does not require that the mother supervise any of the father’s “parenting time.” She argues that, given the manner in which her child has been raised, the judge’s visitation schedule will “destroy” the child’s prior living arrangements and is contrary to the child’s best interests.

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There was no error in the judge’s decision to award visitation to the father. Maintaining preexisting living arrangements is preferred only when that ar-rangement is meeting a child’s needs. See Custody of Kali, 439 Mass. 834, 843–844, 792 N.E.2d 635 (2003). The judge was warranted in concluding that the existing arrangement, in which no substantial father-child relationship was pos-sible, did not meet those needs. A gradually increasing schedule of visitation was a reasonable approach to ensure bonding without disrupting abruptly the child’s life.

The mother’s specific objections are without merit. While the judgment does not provide for the mother to be present during visitation, the judge found that the mother’s past supervision had impeded father-child bonding. It was within the judge’s discretion to permit the father to spend time unsupervised with his child. We discern no error in the judge’s failure to discuss the mother’s particular ap-proach to child-rearing. The judge is not required to address every issue raised by the parties at trial, and a lack of explicit findings does not mean the issue was not considered. Furthermore, the judge could conclude reasonably that any dis-ruptions from visitation were outweighed by the benefits to the child of develop-ing a relationship with the father.

Although we conclude that visitation was properly awarded to the father, the schedule ordered by the judge was premised on the erroneous order to return the child to Massachusetts and on the circumstances that existed between the parties at the time of the order nearly two years ago. On remand, the judge is to recon-sider the question of visitation as set forth in part 4, infra.

c. Failure to award back child support. Pursuant to a voluntary agreement, the father paid child support until trial began in July, 2008, but did not pay support thereafter until the judgment in December, 2008.17 The judgment awarded the mother prospective child support, but did not require the father to pay any past child support. According to G.L. c. 209C, § 9 (a ), if the judge finds a parent chargeable with support, the judge, “[u]pon the petition of a party,” shall also order past support, taking into account any past support provided by that par-ent.18 The mother argues that the judge was obligated to award retroactive child support for the period between July, 2008, and December, 2008. That argument should have been presented to the judge. See Bercume v. Bercume, 428 Mass. 635, 642, 704 N.E.2d 177 (1999). According to the record, the mother did not request that the judge award child support and the evidence would not have alerted the judge that she was entitled to any past child support. During trial, the mother filed no petition or motion for past child support, and she did not move for reconsideration or modification of the child support order after the judgment. The judge’s support order was permissible in the circumstances. We also see no reason to vacate the support order, as it was not premised on the erroneous order to return to Massachusetts.

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d. Joint custody award. As earlier mentioned, the judge ordered that the parties have joint legal custody. Pursuant to G.L. c. 209C, § 10 (a ), a court may award joint custody, whether legal or physical, only if the parties have made an agree-ment approved by the court to share custody, or if “the court finds that the par-ents have successfully exercised joint responsibility for the child ... and have the ability to communicate and plan with each other.”19 The statute recognizes that involving both parents in decision making is in the child’s best interests “only if the parties demonstrate an ability and desire to cooperate amicably.” Mason v. Coleman, 447 Mass. 177, 182, 850 N.E.2d 513 (2006). Joint custody is inappro-priate for parents whose relationship to date has been “dysfunctional, virtually nonexistent, and one of continuous conflict.” Carr v. Carr, 44 Mass.App.Ct. 924, 925, 691 N.E.2d 963 (1998). See Custody of Kali, supra at 837 n. 5, 792 N.E.2d 635; Custody of Zia, 50 Mass.App.Ct. 237, 244 & n. 10, 736 N.E.2d 449 (2000).

In awarding joint custody absent an approved custody agreement between the parties, to comply with G.L. c. 209C, § 10 (a ), the judge’s findings must sup-port the conclusion that the parties can cooperate in making decisions for the child and have done so in the past. Custody of Odette, 61 Mass.App.Ct. 904, 905, 810 N.E.2d 814 (2004). The judge is not, of course, required to parrot the statutory language. An explicit written finding, while preferable, may be unnec-essary when the record indicates an entirely amicable relationship and readily “supports an inference that the requisite findings are implicit in the judge’s or-der.” K.J.M. v. M.C., 35 Mass.App.Ct. 456, 458, 624 N.E.2d 571 (1993). How-ever, when the record reflects a hostile and tumultuous relationship between the parties, positive findings are required that support an inference that joint deci-sion-making authority is appropriate for the future. Custody of Odette, supra.

We do not, however, construe G.L. c. 209C, § 10 (a ), in such a way that a par-ent who renders cooperation impossible will be rewarded invariably with sole custody. If a judge finds that an irresponsible, hostile parent has stymied delib-erately any attempts by the other parent to participate in the child’s life, such a finding may support an award of sole custody to the other parent, where that custodial arrangement will not be detrimental to the child. See Hernandez v. Branciforte, 55 Mass.App.Ct. 212, 220–221, 770 N.E.2d 41 (2002) (mother’s unilateral removal of child to Italy was part of reason for giving sole custody to father, because removal reflected “abject breakdown in communication ... as-crib[ed] to the mother’s defiance” and mother’s “failure to place the welfare of her son above her own”). See also In re Paternity of C.T.E.-H., 323 Mont. 498, 502–505, 101 P.3d 254 (2004) (awarding primary residential custody to father when mother had “exclud [ed him] from the child”).

The mother argues that the award of joint legal custody was improper in this case because the judge failed to make a “positive finding” that the parents can exercise joint responsibility. Custody of Odette, supra. We agree that the judge’s

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order was insufficiently supported by her findings. Rather than suggesting that the parties would be able to exercise joint responsibility for the child’s welfare, the findings suggest the contrary. The judge found that the mother and father have clashed over child-rearing since before the child’s birth. In addition to long-standing disagreements about the father’s role in the child’s life, the parties have been unable to agree upon or comply with a regular visitation schedule. The judge concluded that the mother moved to New York with the purpose of separating the child from the father, and that she would “actively interfere” with any extended visitation ordered by the court. Aside from the voluntary child support arrangement that existed prior to trial, there is no evidence of coopera-tion between the parties. In light of the history of hostility between the parties, the judge could not award joint legal custody without an explicit, and supporta-ble, finding that the parties had cooperated in the past and would be able to do so in the future.

4. Proceedings on remand. In light of the erroneous analyses and orders in this case, we must remand the entire matter to the judge for reconsideration. We rec-ognize, of course, that the present circumstances of the parties and the child are substantially different from when the judge first made her decision. Unfortunate-ly, the order to return the child to the Commonwealth produced an anomalous situation: although the mother and child now reside in Massachusetts, they re-turned here only under the threat of contempt pursuant to an unlawful order. In further proceedings in this case, the judge must attempt to remedy, to the extent possible, the wrong done to the mother, while still maintaining the child’s best interests as the paramount concern.

Presently, the child has two legal parents and all the parties reside in Massachu-setts. If this were a typical case, the relocation approach detailed in part 2, supra, would apply: any relocation by the mother to another State would require either the father’s consent or permission from a court utilizing a Yannas analysis. That approach creates deliberate barriers to relocation in order to protect the child’s existing living arrangements. In the aberrant circumstances of this case, howev-er, it is unfair to impose such barriers upon the mother. Had there been no im-proper court order, the mother and child would have been free to remain in New York. The mother’s compliance with that order should not be used to her detri-ment should she wish to return there. Instead, she should be afforded the free-dom to choose where she will live that was denied to her previously.

Accordingly, a special exception to the usual procedure is warranted in this case. At the outset of proceedings on remand, the mother must inform the judge whether she wishes to live in Massachusetts or New York or elsewhere, and the judge must accept that choice. The judge must treat the mother’s chosen resi-dence as a given, and fashion a new plan for custody and visitation accordingly. We reiterate that this exception to what would ordinarily be an analysis directed

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to the best interests of the child obviously comes about by virtue of the unusual circumstances of this case.

In all other respects, the judge’s analysis on remand should be a typical one and must give due regard to the interests of both parents, no matter where, or with whom, the child lives. If the parties have complied with the judge’s visitation requirements, and if the father has in fact interacted positively with the child, the best interests of the child may now favor an entirely different custody and visita-tion arrangement. We leave those considerations to the judge’s discretion in light of the proper legal standards.

5. Conclusion. The order to return the child to Massachusetts, the award of par-enting time, and the award of joint legal custody are vacated, and the case is remanded to the Probate and Family Court for further proceedings consistent with this opinion. The remainder of the judgment is affirmed.

So ordered.

MARSHALL, C.J. (concurring, with whom Spina, J., joins).

On or about March 1, 2008, Danielle McDonald, the sole legal parent of her five month old son, moved from Massachusetts to upstate New York, to be closer to her mother and stepfather in a community she felt would be more affordable. Approximately nine months later, after the mother had found housing and part-time employment in her new domicil, a judge in the Probate and Family Court ordered the child returned to Massachusetts on a judgment establishing Stephen Smith’s paternity. There was no question that the mother, who retained sole physical custody of the child, was a fit, indeed a good, parent. There was no question that the father had had minimal contact with the child since February, 2008.

This appeal arises, as the court rightly concludes, because the judge impermissi-bly ruled, for reasons that were irrelevant under the paternity statute, G.L. c. 209C, that the mother needed the court’s or the putative father’s permission be-fore she could relocate with the child to New York. See ante at 550. As a result of the judge’s disregard of the paternity statute, what should have been a routine custody and visitation matter under G.L. c. 209C, § 10, became a prolonged, expensive, and stressful legal ordeal for the parties and significantly disrupted the child’s stability. I concur in today’s decision vacating the judgment, but write separately to clarify the analytical underpinnings of the court’s holding.

This matter begins and ends with statutory interpretation. The paternity statute, which governs here, furthers the Legislature’s expressed intent that nonmarital children be “entitled to the same rights and protections of the law as all other children,” G.L. c. 209C, § 1, while simultaneously recognizing that, as a matter

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of law, married and unmarried parents are not similarly situated. Among other things, the statute makes unmistakably clear that the mother is the sole legal parent of a nonmarital child from the moment of the child’s birth until the estab-lishment of the putative father as a legal parent, which in this case did not occur until the child was ten months old. See G.L. c. 209C, § 10 (b ) (“Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock” [emphasis added] ).1 The statute places on a putative father who wishes to exercise parental rights the obligation to take affirmative steps to establish paternity. G.L. c. 209C, § 2. This obligation pertains regardless of whether the mother has told a man that he “is” the father of the child, has accepted money from him as “child support,” or has in any other manner represented to the man that he is the father.

Here, the critical and determining fact before the judge, and before us, in apply-ing the provisions of the paternity statute is that the mother, an unquestionably fit parent, moved to New York with the child at a time when, as the child’s only legal parent, she was free to do so without the court’s or the putative father’s permission, even if the move disrupted arrangements she had previously made for visitation between the child and the putative father. At the time she relocated with the child, neither the putative father nor the Commonwealth had any legal authority to interfere with or review the mother’s decision. These facts should have been enough to put an end to the father’s legal quest to force the mother to return with the child to Massachusetts. Once it was established that the mother had relocated prior to an adjudication of paternity, the judge had no grounds to examine the reasons for or sincerity of the mother’s move. After paternity was established, the judge was obligated to take as a given that the mother and the child resided 400 miles apart from, and in another State than, the father, and to fashion custody and visitation orders pursuant to the three factors set out in G.L. c. 209C, § 10 (a ), again respecting and not disturbing the mother’s decision to relocate. See Custody of Kali, 439 Mass. 834, 843, 792 N.E.2d 635 (2003) (“If the parenting arrangement in which a child has lived is satisfactory and is rea-sonably capable of preservation, it is ordinarily in the child’s best interests to maintain that arrangement, and contrary to the child’s best interest to disrupt it. 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”). Seen in light of the mother’s legitimate New York residence and the provisions of G.L. c. 209C, § 10 (a), the distance separating the parties had relevance only as a factor in devising a reasonable long-distance visitation order, a type of order with which our Probate and Family Court judges are familiar and competent to fash-ion.

The judge, however, as the court details, failed to follow the statutory scheme. See ante at 550. She made impermissible findings concerning the mother’s rea-sons for moving to another State with the child2; she made irrelevant findings about the mother’s choices in caring for the child3 ; and she made findings about

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the importance of the child bonding with the father that privileged a need to bond over the child’s need for stability.4 See id. at 542–543. The judge then ana-lyzed these impermissible and irrelevant findings under the “real advantage” test set out in Yannas v. Frondistou–Yannas, 395 Mass. 704, 711–712, 481 N.E.2d 1153 (1985) (Yannas) to conclude that the mother “failed to articulate a sincere, good reason for relocation.” Id. at 543. The Yannas factors apply to prevent one legal parent from unilaterally relocating with a child to another jurisdiction, thereby affecting the parental rights of the other legal parent. That analysis is triggered only where the rights of two legal parents have been established prior to removal or attempted removal of the child from Massachusetts. See, e.g., Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 775–776, 857 N.E.2d 32 (2006) (applying Yannas test where paternity of unmarried father had previously been established and mother had not yet relocated). In such circumstances, not pre-sent in this case, maintaining the status quo strikes an appropriate balance among the interests of all family members involved. See Yannas, supra at 712, 481 N.E.2d 1153 (in considering request under G.L. c. 208, § 30, to move child to another jurisdiction, “[e]very person, parent and child, has an interest to be considered”). This is not a removal case, and Yannas is inapposite. Neither the judge nor the parties has cited to a single case, from any jurisdiction (and I am not aware of any from my own investigation), that gives a judge authority to pull a parent and child unwillingly back to a State where the parent had a prior and unilateral right to leave.

The court concludes, and I concur, that the judge had no authority to issue an order during the pendency of litigation for the child (and hence the mother) to move back to Massachusetts. See ante at 550. As the court acknowledges, a per-son having sole parental rights is “free to move with the child wherever she wishe[s].” Id. at 549–550. As a matter of law, it should make no difference to a parent’s freedom to relocate that another party subsequently files to establish parental rights. See G.L. c. 209C, § 10 (a ), (b ). There is no statutory basis or reason in fairness for the mother to remain in Massachusetts on the filing of a complaint for paternity, which may be filed for any number of extraneous rea-sons and may be denied. See Paternity of Cheryl, 434 Mass. 23, 32, 746 N.E.2d 488 (2001) (“A man may acknowledge paternity for a variety of reasons, and we cannot assume that biology is the sole impetus in every case”). The paternity of a nonmarital child is not certain and is not infrequently in dispute. In contrast, the motherhood of a nonmarital child is established at birth. We may presume that the Legislature took these elementary facts into account in crafting a statuto-ry scheme that gives primacy to the stability of a nonmarital child by vesting sole legal parentage in the mother unless and until there has issued a legal de-termination of paternity or a voluntary acknowledgment of paternity. The Legis-lature’s policy choices may mean that a responsible and well-meaning litigant like the plaintiff in this case is disadvantaged where he elects not to establish paternity upon or soon after the birth of the child. Our role, however, is to faith-fully construe the statute.

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I concur that the judgment must be vacated and the case remanded to the Probate and Family Court for further proceedings as to custody and visitation in light of the “special exception” set out by the court. Ante at 555.

All Citations

458 Mass. 540, 941 N.E.2d 1

Footnotes

1 Chief Justice Marshall participated in the deliberation on this case and authored the concur-ring opinion prior to her retirement.

2 We acknowledge the amicus brief of the Legal Assistance Corporation of Central Massa-chusetts.

3 The temporary orders were eventually allowed, but not until July, 2008.

4 The record does not indicate when the mother and child returned to the Commonwealth. Because the mother and child now reside in Massachusetts only as a result of a court order, their residence within the Commonwealth does not render moot the mother’s objections to the order requiring the child (and the mother, in order to retain custody) to return to Massa-chusetts. Even were the issue moot, the matter is one of public importance, has been fully briefed and argued by the parties, and is likely to recur. See Commonwealth v. Washington W., 457 Mass. 140, 142 n. 3, 928 N.E.2d 908 (2010); Lockhart v. Attorney Gen., 390 Mass. 780, 782–783, 459 N.E.2d 813 (1984).

5 Although the mother and child were living in another State at the time of trial, neither party challenged the jurisdiction of the Massachusetts court to adjudicate the situation.

6 Although the statute refers to these children as “children born out of wedlock,” the term “nonmarital child” is preferred. See Woodward v. Commissioner of Social Sec., 435 Mass. 536, 543 n. 12, 760 N.E.2d 257 (2002).

7 General Laws c. 209C, § 2, states in relevant part:

“Paternity may be established by filing with the court, the clerk of the city or town where the child was born or the registrar of vital records and statistics an acknowledgment of parentage executed by both parents pursuant to [G.L. c. 209C, § 11,] or pursuant to an action to establish paternity filed pursuant to this chapter....”

8 General Laws c. 209C, § 10 (b ), states:

“Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock. In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.”

9 General Laws c. 209C, § 10 (a ), states in relevant part:

“In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to [G.L. c. 209C, § 11,] or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of pro-ceedings pursuant to this chapter and have the ability to communicate and plan with each

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other concerning the child’s best interests.”

A formal custody agreement between the parents “shall be approved only if the court finds it to be in the best interests of the child.” G.L. c. 209C, § 11 (b ). The requirement of court approval ensures that the parents’ wishes cannot prevail over the best interests of the child.


“In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.”

11 General Laws c. 208, § 30, states:

“A minor child of divorced parents who is a native of or has resided five years within this [C]ommonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this [C]ommonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the pur-poses of this ... section[ ].”

12 We use the term “parent” here and in the following paragraph to mean a legal parent, that is, a parent of a marital child, and, with respect to a nonmarital child, a mother and a father whose paternity has been established pursuant to G.L. c. 209C.

13 Similarly, while G.L. c. 208, § 30, applies only to relocation outside the Commonwealth, “[w]e apply out-of-State removal principles to in-State moves,” pursuant to common law, in cases where the move would disrupt significantly existing parenting arrangements, such as when the move is long-distance. Altomare v. Altomare, 77 Mass.App.Ct. 601, 602–603, 933 N.E.2d 170 (2010), citing D.C. v. J.S., 58 Mass.App.Ct. 351, 355–356, 790 N.E.2d 686 (2003).

14 A different analysis, more protective of the interests of the parent who is not relocating, is appropriate when the parents share joint physical custody. See Mason v. Coleman, 447 Mass. 177, 184–185, 850 N.E.2d 513 (2006).

15 Of course, had the judge awarded sole physical custody to the father, the judge could have ordered the child returned to the Commonwealth so that the father could assume custody. See, e.g., Prenaveau v. Prenaveau, 75 Mass.App.Ct. 131, 144, 912 N.E.2d 489 (2009) (reinstating order granting sole physical custody to mother in Massachusetts, and ordering children residing with father in New Hampshire at that time to be returned to Massachu-setts).

16 See notes 9 and 10, supra.

17 The parties do not dispute that in July, 2008, the father paid the mother all child support owing due to their voluntary agreement, and that he continued to set aside the same amounts during trial but did not pay these latter amounts to the mother.


“If the court finds that a parent is chargeable with the support of a child, the court shall make an order ... requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child.... Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent’s ability to pay under subsection (c ) and

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any support provided by the parent during such period....”

19 See note 9, supra.

1 The paternity statute further provides that “the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage” (em-phasis added) unless and until a court orders otherwise. G.L. c. 209C, § 10 (b ).

2 Among other things, the judge concluded that the mother “has failed to demonstrate why permitting her leave to remain in New York would be in her best interest.... Defendant testified that ordering her to move back to Massachusetts would inflict a significant finan-cial burden on her. While the Court recognizes Defendant may be affected by being or-dered to move back to Massachusetts, the problem is one of her own creation. Defendant cavalierly made the decision to move to New York without taking into account the rights of the Plaintiff or Child in having a relationship with one another....”

3 The judge found that the mother’s “move to New York was clearly to deprive the [father] of developing a relationship with Child....” She further found that the mother “has produced no evidence which would show that the move to New York would be advantageous to Child’s quality of life....”

4 The judge credited the testimony of the father’s expert that “[w]here parents live apart, for proper bonding to occur, it is optimal for the non-custodial parent to have frequent and regular contact with the child .... that there has been insufficient frequency and duration of contact between [the father] and Child for bonding to have occurred since the time of birth ... [and that] the frequency and duration of [the father’s] contact with Child remains inade-quate with Child living approximately 400 miles away.” The judge also found that health insurance for the child would be less expensive in Massachusetts than in New York.

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MASSACHUSETTS GENERAL LAWS

Part II. Real and Personal Property and Domestic Relations (Ch. 183–210)

Title III. Domestic Relations (Ch. 207–210)

Chapter 208. Divorce (Refs & Annos)

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M.G.L.A. 208 § 31A

§ 31A. Visitation and custody orders; consideration of abuse toward parent or child; best interest of child

In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child. For the purposes of this section, “abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of im-minent bodily injury. “Serious incident of abuse” shall mean the occurrence of one or more of the following acts between a parent and the other parent or be-tween a parent and child: (a) attempting to cause or causing serious bodily inju-ry; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. For purposes of this section, “bodily injury” and “serious bodily injury” shall have the same meanings as provided in section 13K of chapter 265.

A probate and family court’s finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable pre-sumption that it is not in the best interests of the child to be placed in sole custo-dy, shared legal custody or shared physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child. For the purposes of this sec-tion, “an abusive parent” shall mean a parent who has committed a pattern of abuse or a serious incident of abuse.

For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be admis-sible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine, other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding by the pro-bate and family court that a pattern or serious incident of abuse has occurred.

If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child’s best in-terests and provides for the safety and well-being of the child.

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If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:

(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;

(b) ordering visitation supervised by an appropriate third party, visitation center or agency;

(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;

(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;

(e) ordering the abusive parent to pay the costs of supervised visitation;

(f) prohibiting overnight visitation;

(g) requiring a bond from the abusive parent for the return and safety of the child;

(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and

(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.

Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic relations procedure or to affect the discretion of the probate and family court in the conduct of such hearings.

Credits

Added by St.1998, c. 179, § 3.

M.G.L.A. 208 § 31A, MA ST 208 § 31A


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