by Jessica Dubin
In E.K. v. S.C., 97 Mass. App. Ct. 403 (2020), the Appeals Court established a new removal inquiry that applies when an out-of-state, non-custodial parent seeks custody of a child living in Massachusetts and requests permission to move the child to the state where that parent resides. Previously, case law had addressed only the standards applicable to requests to remove a child out-of-state by a parent living in Massachusetts, and had established three different inquiries depending on the child’s custodial status.
The parties in this case were never married and had one child. As part of the judgment of paternity, the court awarded the parties shared legal custody of their child, primary physical custody to the mother, and parenting time of one weeknight per week and every other weekend to the father. Approximately six years later, the father filed a Complaint for Modification seeking sole legal custody and permission to move the child to New Hampshire, where the father already lived. He alleged that the mother was acting contrary to the health, education and welfare of the child by unilaterally stopping the child’s medication, withdrawing him from a special needs school program without the father’s consent, and maintaining uninhabitable living conditions. After a bench trial, the judge found for the father.
The Appeals Court’s Decision
After concluding that the trial judge’s detailed findings of fact supported her conclusion that a material and substantial change of circumstances had occurred warranting a change in custody, the Appeals Court turned to the novel question of what removal inquiry should apply when a non-custodial parent seeks to relocate a child out-of-state to the state where that parent resides. The Court set forth a three-part inquiry:
- First, the judge must analyze whether a parent’s move out-of-state was motivated by a desire to deprive the custodial parent of time with the child. If the judge finds that the intent of the move was not to interfere with the custodial parent’s relationship with the child and that the move was not designed to establish a basis to request a change in physical custody, then the judge should proceed to the second inquiry.
- Second, the judge must determine whether the out-of-state parent is rooted in the community where that parent seeks to move the child. Factors analyzed as part of this inquiry may include the parent’s employment, financial situation, housing, family composition, and social and emotional benefits of that parent’s circumstances. If the judge finds that the parent is rooted in the community, this may be considered a “real advantage” to that parent. Once the out-of-state-parent demonstrates a “good, sincere reason” for the move, the judge should proceed to the third inquiry.
- If the first two inquiries favor the out-of-state parent, then the judge must determine the best interests of the child, including the impact the proposed move would have on each parent and the resultant effect on the child. The factors to be considered in this analysis include: “(1) whether the quality of the child’s [life] will be improved, including any improvement that ‘may flow from an improvement in the quality of the custodial parent’s life;’ (2) any possible ‘adverse effect of the elimination or curtailment of the child[ ]’s association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [child’s] emotional, physical, or developmental needs’; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.” Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015), quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).
Applying the “clearly erroneous” standard of review, the Appeals Court affirmed the trial judge’s findings that the father’s move to New Hampshire occurred long before any custody modification proceeding was contemplated and that he was firmly rooted in his community. Accordingly, the Court concluded that the father’s decision to move to and remain in New Hampshire provided him with a real advantage. Proceeding to the best interests of the child analysis, the Court held that the trial judge’s findings addressed all of the Murray factors and were supported by the record. The Court accepted the judge’s final determination that the father had the better ability to address the child’s significant needs.
Four different removal inquiries now exist. Which inquiry will apply depends on the facts of each particular case. The four inquiries that exist after E K. v. S.C. are as follows:
- when a parent who lives in Massachusetts has sole physical custody and seeks removal to another state, that request is analyzed using the real advantage standard pursuant to Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985);
- when a parent who lives in Massachusetts has shared physical custody and seeks removal to another state, that request is analyzed using the best interests of the child standard pursuant to Mason v. Coleman, 447 Mass. 177, 184-185 (2006);
- when a parent who lives in Massachusetts seeks removal to another state and no prior custody order exists, a judge must first perform a functional analysis regarding the parties’ respective parenting responsibilities to determine whether those more closely approximate sole or shared custody, and then apply the corresponding Yannas or Mason standard, pursuant to Miller v. Miller, 478 Mass. 642, 643 (2018); and
- when a non-custodial parent who lives outside of Massachusetts seeks removal to the state where the parent resides, the request is analyzed using the three-pronged inquiry outlined above pursuant to E.K. v. S.C.
 Although beyond the scope of this article, the Appeals Court also resolved these procedural issues: (i) motions for reconsideration continue to be subject to the requirements of Standing Order 2-99 even though such motions were deleted from the Standing Order in 2012; (ii) although the trial judge should not have issued a temporary order changing custody without contemporaneous findings of fact, her failure to do so should not result in reversal on technical grounds when the mother failed to demonstrate prejudice from the delayed findings of fact; and (iii) the trial judge did not abuse her discretion in denying the mother’s motion to reopen evidence.
Jessica Dubin is a partner at Lee & Rivers LLP where she concentrates her practice on all aspects of family law. Jessica is a member of the Boston Bar Association’s Council and Family Law Section Steering Committee, and serves on the Board of Editors of The Boston Bar Journal.
In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.
Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.
Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order. Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.
At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth birthday. Id. at 660.
Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.
“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).
The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . . .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.
Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence. However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).
Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.
Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.
Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.
by Elizabeth Sillin and Colin Korzec
On January 8, 2019, the Massachusetts Supreme Judicial Court issued Ciani v. MacGrath, 481 Mass. 174 (2019), which clarified certain provisions of the Massachusetts spousal elective share statute, G.L. c. 191, § 15. Specifically, Ciani held that the surviving spouse’s elective share of the deceased spouse’s real estate is a life estate in possession, not simply an income interest for life. A right to partition (and sell) the real property is now borne – a right that may severely disrupt the estate plan of the testator. Additionally, the SJC again urged the Legislature to update the elective share statute due principally to the fact that the statute is “woefully inadequate to satisfy modern notions of a decedent spouse’s obligation to support the surviving spouse or modern notions of marital property,” Bongaards v. Millen, 440 Mass. 10, 21 (2003).
Raymond Ciani died testate in 2015 survived by his wife, Susan, and his four adult children from a prior marriage. Raymond did not make any provisions in his will for Susan. Susan timely filed for her elective share of Raymond’s estate in accordance with G.L. c. 191, § 15.
Raymond died with personal property valued at just under $40,000 and with multiple parcels of real estate valued at just under $638,000. Susan brought partition actions seeking to force the sale of real estate in order to monetize her interest therein. Raymond’s children claimed she did not have a right to force the sale, and that she had the right only to receive income produced by the real estate.
The Massachusetts elective share provisions are found in G.L. c. 191, §§ 15 and 16 (the Elective Share statute). The Elective Share statute was enacted to prevent spousal disinheritance, either by inadvertence or design. It provides a mechanism by which a surviving spouse can waive the provisions of a deceased spouse’s will and take instead a statutorily prescribed share of the decedent’s estate.
The Elective Share statute provides a formulaic approach to determining the amount of the surviving spouse’s claim. The formula depends on whether the deceased had issue and/or kindred, as well as on the dollar amount of the deceased’s estate. The Elective Share statue provides, in part:
[I]f the deceased left issue, [the surviving spouse] shall thereupon take one third of the personal and one third of the real property . . . ; except that . . . . if [the surviving spouse] would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased. G.L. c. 191, § 15.
The dispute in this case centered on the nature of a Susan’s interest in a Raymont’s real property where the income-only limitation applies, i.e., where Susan’s share of Raymond’s personal and real property, taken together, exceeds $25,000 in value. Susan contended that she held a life estate in an undivided one-third of each parcel of real property and that Raymond’s children were tenants in common subject to her life estate. Raymond’s children contended that Susan’s interest in real estate is limited to an income interest for life, not a life estate. The issue was one of first impression. The judge in the Superior Court reported the ruling to the Appeals Court and the SJC granted direct appellate review.
The Ciani Decision
The SJC construed the Elective Share statute by first looking at its plain language and then whether the legislative history supported the Court’s interpretation. The SJC declared:
[W]e read the statute this way: the first clause (“only the income during his or her life”) limits the surviving spouse to an interest in the “income only,” and the second clause (“the personal property to be held in trust and the real property vested in him or her for life”) describes how that limitation is to be achieved for each type of property — the personal property is to be held in trust and the real property is to be vested in the surviving spouse for life.
Ciani, 481 Mass. at 180-81.
Next, the SJC considered the legislative history of the elective share concept to test its statutory interpretation. Id. at 183-85. The first iteration of the Elective Share statute simply provided for a widow’s right to waive the provisions made for her in her husband’s will and afforded her a life estate in a prescribed portion of her husband’s real property. In 1833, the statute was revised to afford the widow a limited claim to a deceased husband’s personal property. The statute was reworked in 1854 to allow the spouse to take instead an intestate share of his estate, along with a $10,000 limitation on the personal property. Around 1861, the concept of the income-only interest in the personal property was introduced. Subsequent revisions around 1900 brought the statute to what it largely looks like today, including the expansion of the statute to include surviving husbands. An additional revision in 1964 adjusted the $10,000 figure to the current $25,000. Id.
The SJC found that the history of the statute demonstrated that the Legislature consistently and intentionally treated personal and real property differently from the outset. Id. The income-only limitation initially applied only to the decedent’s personal property. It was not until 1900 that the real property limitation was enacted. And even then, the SJC held, the real property limitation was characterized as “vested” and not as an “income only” limitation. Id. at 186. The fact that the Legislature did not enact an analogous provision for the management of the real property, but instead instructed that the excess of the surviving spouse’s share thereof would be “vested,” supported the Court’s conclusion that the Legislature intended for the surviving spouse to take an ownership interest in the excess. Id. The fact that the Legislature simultaneously anticipated that the surviving spouse’s share would be “set off” for the duration of his or her life also supported the conclusion that the Legislature intended to convey a life estate. Id.
Ultimately, the SJC found that (i) Susan holds an estate in possession, for life, in her share of the real property, and (ii) Raymond’s children hold an estate in possession, absolutely, in the remaining property, as well as an estate in remainder in Susan’s share. As a result, the parties are tenants in common as to their estates in possession and each has a right to a partition. Instead of simply having the right to live in the house, Susan has the right to force a sale of the property and realize a monetary sum upon the sale. Indeed, Raymond;s children also now have the right to partition as well – possibly forcing Susan out of the house in which she wishes to continue to live. This right has the potential to disrupt a well-intended estate plan by allowing the forced sale of the family residence over the objections of certain members of the family.
Postmortem – My Kingdom for a Postnuptial
The Court noted parenthetically that the Elective Share statute, which has been around in some form since 1783, is “unwieldy and perplexing to apply” and “decidedly gendered” and “in desperate need of an update” by the Legislature to conform with modern notions of spousal support obligations and marital property. Ciani, 481 Mass. at 187 n.12. Indeed, as the Court noted, a similar appeal to the Legislature was made in 1984 in Sullivan v. Burkin, 390 Mass. 864 (1984), some 35 years ago. Id. Several attempts have been made over the years by various bar association committees to address the spousal elective share. To date, no consensus has emerged in Massachusetts about modernizing the elective share law. Until such time as it does, estate planners must continue to take advise clients as to the pitfalls of the current law and to give further consideration to prenuptials or postnuptials as part of the estate planning process.
Elizabeth Sillin, Esq. is a partner at Bulkley, Richardson and Gelinas and is a member of the Massachusetts Ad Hoc Elective Share Study Committee. Colin Korzec is a National Estate Settlement Executive at U.S. Trust, Bank of America Private Wealth Management and was also a member of the Massachusetts Ad Hoc Elective Share Study Committee.
Care and Protection of Walt: Breathing New Life into the Decades-Old Policy of Foster Care as the Last Resort.Posted: February 2, 2018
by Ann Balmelli O’Connor
To many, the Supreme Judicial Court’s holdings in Care and Protection of Walt, 478 Mass. 212 (2017)—that the Department of Children and Families (“DCF”) must comply with the law, that courts must ensure that DCF complies with the law, and that where parents or children are harmed by DCF’s breach of its legal obligations, a court may enter orders to remediate the harm —must seem unremarkable. But to attorneys who represent parents and children in state-intervention child custody cases, the decision is a welcome step towards realizing the law’s expectation that removing a child from his parents will be DCF’s “last resort.” Walt at 219.
Since 1954, the commonwealth’s policy has been to remove a child from his parents “only when the family itself or the resources available to the family are unable to provide the necessary care and protection[.]” Id. at 219, citing G.L. c. 119, § 1. When a court awards custody of a child to DCF, the court must determine whether or not DCF made reasonable efforts to “prevent or eliminate the need” to remove the child from his parent(s). G.L. c. 119, § 29C. There are four exceptions to DCF’s reasonable efforts obligation; unless an exception applies, DCF must make reasonable efforts before removing a child. Id. But for many years, juvenile courts routinely have excused DCF’s failure to make reasonable efforts for reasons beyond the statutory exceptions. Walt was one of those cases.
In Walt, DCF made no effort to avoid removing a three-year-old child from his parents because the investigating social worker believed Walt was at immediate risk of harm in the home. A trial judge, citing that risk, excused DCF’s failure to make reasonable efforts to avoid removing Walt. An Appeals Court single justice deemed that ruling error and, because DCF’s breach of its duty to make reasonable efforts had harmed Walt and his father by hindering their reunification, the single justice entered orders for visits and services in order to facilitate Walt’s return to his father’s custody. The single justice reported the issues to a panel of the Appeals Court, and the SJC transferred the case on its own motion.
On appeal, DCF argued that the trial judge only needed to determine whether DCF made reasonable efforts at an initial (usually ex parte) hearing on DCF’s request for emergency custody, not at a later 72-hour hearing. And at the ex parte hearing in Walt, the judge had determined that DCF did make the required efforts. The SJC rejected DCF’s argument and held that G.L. c. 119, § 24 plainly requires that the determination be made at both hearings. Walt at 223-224. The Court noted that the wisdom of requiring that the matter be revisited at the later (adversarial) hearing was illustrated in Walt, where the social worker’s ex parte claims regarding reasonable efforts were shown at the 72-hour hearing to have been “simply not true.” Id. at 225.
DCF next urged that the Court create an “exigent circumstances” exception to § 29C, which would excuse DCF from its duty to make reasonable efforts to avoid removing a child where a parent subjected the child “to serious abuse or neglect or an immediate danger of serious abuse or neglect.” Id. at 226. The Court declined to read that exception into § 29C, since the Legislature did not include it. The Court noted that “a judge must determine what is reasonable in light of the particular circumstances in each case, that the health and safety of the child must be the paramount concern, and that”—regardless of whether or not DCF made reasonable efforts—“no child should remain in the custody of the parents if his or her immediate removal is necessary to protect the child from serious abuse or neglect.” Id. at 225, 228.
DCF also claimed that the single justice exceeded his authority in ordering DCF to provide multiple father-son visits each week, permit Walt’s father to participate in special education meetings, and explore housing options for the family. The SJC disagreed; because DCF had violated its legal obligation to make reasonable efforts to avoid removing Walt, the single justice properly exercised his equitable authority in ordering DCF “to take reasonable remedial steps to diminish the adverse consequences of its breach of duty.” Id. at 228. Because the single justice acted long after Walt had been removed from his parents, he correctly entered orders designed to facilitate reunification. The Court observed that a juvenile court judge has the same authority. Id. at 228, 231.
As to the order for visitation, or “parenting time,” the Court stated that DCF’s schedule of one-hour visits every other week “imperil[ed] the father-son bond that was essential” to reunification Id. at 230. Accordingly, the single justice properly ordered a schedule “that would enable that bond to remain intact.” Id. (citations omitted). Equity likewise warranted the order that Walt’s father be permitted to remain involved in his education. Finally, because the parents would likely have difficulty obtaining housing benefits because Walt was in DCF’s custody—and housing “was likely a prerequisite to family reunification”—the single justice properly ordered DCF to explore housing options for the family. Id. at 230.
DCF has been removing children from their homes at higher rates over the past several years, and the foster care system is overwhelmed. Too often, DCF has removed these children without offering, let alone providing, any services or other assistance to their families. With this decision, the SJC has helped to ensure that DCF will follow the law, so that separating families and placing children in an overburdened foster care system truly will be the agency’s last resort.
Ann Balmelli O’Connor is the Attorney-in-Charge of the Appellate Unit of CPCS’s Children and Family Law Division. Attorney O’Connor, a former Assistant General Counsel for DCF, represented the child’s father in Care and Protection of Walt.
The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire CountyPosted: October 26, 2017
by Hon. Linda S. Fidnick
Voice of the Judiciary
Traditional adversarial litigation can be ineffective in meeting the needs of families who are experiencing divorce or separation. Litigation may be an ultimately productive method for resolving conflicts between strangers — someone wins, someone loses, and the parties never see one another again. How profoundly different family cases with children are! Parents usually come to court at a complicated and painful time. Anger, mistrust, fear, grief — powerful emotions grip them. Yet, despite the demise of their personal relationship, parents must (and should) continue as parents. The more effectively they can work together, the easier it is for their children. Typically parents will need to continue to address one of the many unanticipated, yet inevitable, changes to their lives or the lives of their children after the case has concluded. Unfortunately, the traditional court process gives them no tools to resolve their disputes on their own.
The Hampshire Division of the Probate and Family Court is committed to finding better ways to help families through the court process. Our initiatives include a parent education program for divorcing parents that was expanded to include “For the Children” for never-married parents; “Only One Childhood,” an educational program for mid-conflict parents; a mediation program; and a program that provides attorneys for children. These programs have inestimably benefited the many families of Hampshire County. In this article I discuss a recent program developed by the Hampshire Probate and Family Court that has shown much promise: the Family Resolutions Specialty Court.
Starting in 2014, a group of Hampshire County-based professionals, including among others, Mike Carey, the Register of Probate, Pam Eldridge, Chief Probation Officer, Noelle Stern, Judicial Case Manager, Hon. Gail Perlman, former First Justice, Kathy Townsend, mediator, and Marsha Kline Pruett, Professor at the Smith College School for Social Work, began to meet and talk about ways to provide families with an alternative to the traditional court process within the court itself. The Family Resolutions Specialty Court (“FRSC”) is the result. Loosely based on a process that was developed in Australia’s family court, the FRSC has the following goals: to reduce conflict in cases involving children, to keep court proceedings child-focused, to give parents tools via mediation and the assistance of a clinically trained child specialist to address the problems facing their own family, and finally, to increase all parties’ satisfaction with the court process. We hoped that the FRSC would be more humane and more efficient than traditional family litigation, and ultimately give parents the ability to communicate well enough to obviate the need for repeated returns to court. We also created an FRSC Advisory Board comprised of a wide variety of professionals in the community. FRSC is available in most cases involving children. It has been used in initial divorces, complaints for modification, and complaints for contempt, whether the parents have counsel or are self-represented.
FRSC serves traditional and non-traditional families of all socio-economic backgrounds with children of all ages. FRSC is voluntary. Initially, both parents must opt in to the program. Either parent may opt out at any time. If a parent opts out, the case returns to the traditional court process and a different judge is assigned. Once the parties opt in, a probation officer completes an intake and screening. This initial assessment includes meeting with the parties and counsel to explain how FRSC works. If a significant history of domestic violence exists or one or both parents do not have the capacity to participate meaningfully, the family will be screened out. Once the family is screened in, its members are assigned a support team consisting of the family consultant (a mental health professional who remains involved with the case until resolution), an attorney for the children, a probation officer, and a mediator.
The family consultant conducts a guided interview to assess the family’s strengths and challenges and discusses various parenting arrangements. What is unique about this step is that the first in-depth conversation about the parenting plan comes to the parents from a mental health and developmental perspective, rather than a legal one. The parents are then referred to mediation. During this confidential process, issues requiring resolution are identified and parents are provided with tools to resolve future conflicts informally.
Next, a court conference is held. The parents, their counsel, the children’s attorney, the family consultant, the probation officer, and I attend. We sit at a table with the parents near me and facing each other. The parents bring photographs of the children. I ask each parent what his or her hope is for the outcome for themselves, for the children, and, importantly, for the other parent. Although parents are encouraged to speak directly to me, rather than by representations of counsel, attorneys are critical to the FRSC. Lawyers help participants understand their rights and obligations, identify relevant issues, ensure complete disclosures, and counsel clients to participate in a meaningful way. We use a problem-solving approach. The rules of evidence are suspended. Information is shared freely. The process is open and transparent. If a participant raises a concern that information is being withheld or misrepresented, he or she can request that the case be transferred back to the traditional court process.
At the court conference, we identify the resolved and contested issues, the information needed to determine the outcome of the contested issues, and outline the next steps. As a community-based court, we discuss whether referrals to parent education, substance abuse treatment, family counseling, or early childhood intervention may be helpful to the family. If so, the probation officer is key in referring members of the family to appropriate community agencies. The FRSC team members work with the family between conferences. The parents may choose to meet with the mediator, the family consultant, the probation officer, or attorney for the child in any combination and as often as needed. Court conferences are scheduled at appropriate intervals until all issues are resolved. The goal is resolution by agreement. However, if necessary, I will make a decision, either on a temporary basis or as a final judgment, if the parents are unable to agree.
Because of the attention to the case by all professionals involved from the very beginning, even the most complex case concluded in seven months, half of the time standard in the traditional track. This has been one of the unexpected, but greatly appreciated by the litigants, benefits of participating in FRSC.
The following are some comments of parents from their exit surveys:
“I now have much more contact with my children than when we began. . . . We have been able to agree on many issues that we did not agree on before.”
“FRSC helped ensure my child was enrolled in a high-quality pre- [kindergarten] program which has transformed our entire family’s quality of life and gave our child a strong foundation at a time when he was most vulnerable to instability.”
“This process was very beneficial to myself as a parent and was minimally stressful. . . . It has helped me to learn to never speak poorly of her dad in front of her . . . We fight almost never now and seem to be more understanding towards each other. . . . I would STRONGLY recommend this process to anyone getting divorced who have children. I hope this becomes the standard.”
“I have learned a tremendous amount through the programs associated with FRSC both as a parent and individual. . . . [FRSC] has helped to make me the best father I can possibly be. . . . We still have a long way to go but I am hopeful that in eliminating much of the negativity that typically surrounds divorce, it will allow us to become great co-parents. Truly life changing. I hope this continues and that all divorces with children can be done in this manner.”
Thus far, FRSC has succeeded in every aspect of its purpose. Children have a voice from the very beginning, which focuses their parents on the primacy of continuing to raise healthy children despite the marital or relationship dissolution. For those separating and divorcing parents who choose the process, they were able to come to closure in half the time (or less) than allotted for cases under our time standards. The families who have benefited from FRSC have been from all walks of life in our county: people from all manner of socio-economic, religious, health status, gender-identified, and educational backgrounds have benefited from it. Our hope is that the FRSC model will be the default process for all families experiencing divorce and separation throughout the Commonwealth.
Judge Fidnick is the First Justice of the Hampshire Probate and Family Court.
by Holly A. Hinte
It is the public policy of the Commonwealth that dependent children be maintained, as completely as possible, from the resources of their parents. The Court’s authority to award child support is defined by statute and applies in a variety of cases including divorce, paternity, and abuse prevention cases to name a few. Broadly speaking, child support is an amount paid from one party to another for the support of the dependent child. Unlike alimony orders, such amount is neither taxable to the payee nor deductible by the payor.
In order to receive certain federal funding, each state must establish guidelines for child support and review them once every four years to ensure that their application results in the determination of appropriate award amounts. 42 U.S. Code § 667; 45 CFR § 302.56. In Massachusetts, the Guidelines are promulgated by the Chief Justice of the Trial Court and used by the judges of the Probate and Family Court in determining the appropriate level of child support.
As required by said federal regulations, in March 2016, the Chief Justice of the Trial Court, Paula M. Carey, convened a Task Force, consisting of judges, practitioners, and economists, to review the 2013 Guidelines and the current economic climate. This review lasted over a year and included public forums, discussions, reports, and feedback from the public, the bench and the bar.
The new 2017 Guidelines were published and became effective on September 15, 2017. For the first time, the Task Force’s comments are included within the actual text of the Guidelines. There are also new forms and worksheets to be used by practitioners and the court. All of the new documents are available on the court website: www.mass.gov/courts/selfhelp/family/child-support-guidelines.html.
Compared to the 2013 Guidelines, the 2017 Guidelines contain edits made for clarification purposes, substantive changes, and in-depth instructions and commentary. Some of the notable changes are as follows:
Child Support for Children Between the Ages of 18 and 23
The 2017 Guidelines now apply in all cases in which child support is awarded, no matter the age of the child, which is a marked difference from the prior guidelines and prior federal regulations which only required application of the guidelines up to age 18. This has always been a conflict, as under the Massachusetts statutory scheme, the Court has the discretion to award child support for a child over 18 to 21, if said child is domiciled with, and principally dependent upon, a parent, and the Court has the discretion to award child support for a child between the ages of 21 to 23 so long as the child is domiciled with, and principally dependent upon, a parent, and enrolled in an educational program (undergraduate only).
The 2017 Guidelines address this conflict by providing instructions for handling child support for children between the ages of 18 and 23, including providing factors to consider when determining whether or not to enter such an order. Additionally, in recognizing the unique factors present with children between the ages of 18 and 23, the 2017 Guidelines reduces the base amount of child support in this age-range by twenty-five percent (25%). Such presumptive order may be deviated from if appropriate.
Contribution to Post-secondary Educational Expenses
In addition to the concerns regarding child support for children between the ages of 18 and 23, there was also a lack of clarity and uniformity as it related to contributions to post-secondary educational expenses of a child. The prior guidelines did not address such contributions despite statutory authority giving the Court discretion to order a party to contribute to such expenses.
The Task Force recognized the concerns voiced by the public, the bench and the bar- namely, many parents cannot afford to pay college expenses from their income while also meeting other expense obligations, often being forced to incur substantial loan liability. As such, the 2017 Guidelines include a new section addressing such contributions.
In determining whether or not to order such contribution, the 2017 Guidelines provides a list of factors the Court must consider including cost, the child’s aptitudes, the child’s living situation, the available resources of the parent and the child, the availability of financial aid, and any other relevant factors.
If it is determined to order such contribution, the 2017 Guidelines cap such contribution at 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst (as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges). While such cap is not an absolute limitation, any order requiring a parent to contribute more than 50% requires written findings that a parent has the ability to pay the higher amount.
The Task Force makes clear that this limitation is not meant to apply in situations where: (1) children are already enrolled in college (prior to September 15, 2017) or (2) parents are financially able to pay educational expenses using assets or other resources.
If the Court exercises its discretion and orders child support for a child over the age of 18 along with contribution to post-secondary educational expenses, the Court is to consider the combined amount of both orders and the impact of such on the obligor.
Attribution and Imputed Income
The 2017 Guidelines distinguish “imputation of income” and “attribution of income” in a more coherent and refined manner. Imputed income is undocumented or unreported income. Attributed income is a theoretical amount assigned to a parent after it is found that the parent is capable of working and is unemployed or underemployed. In addition to the clarification of the types of income, the 2017 Guidelines provide new factors the Court is to consider when determining whether or not to attribute income.
Holly A. Hinte is an associate at Lee & Rivers, LLP, a boutique domestic relations law firm in Boston and a member of the Boston Bar Association & Massachusetts Bar Association.
by Ruthanne Withers
In its recent decision, Morales v. Morales, 464 Mass. 507 (2013), the Massachusetts Supreme Judicial Court (“SJC”) clarified the standard used in child support modification cases. Previously, a litigant had the burden of proving that a “material and substantial change in circumstances” had occurred since entry of the prior child support order. Pursuant to the SJC’s decision in Morales, which reaffirmed the relevant statutory standard, a litigant must now show that an “inconsistency” exists between the prior order and the order that would result from the application of the Child Support Guidelines (“Guidelines”).
Due to changes in federal law regarding the collection and enforcement of child support orders, Massachusetts child support statutes were amended in 1994. One of the most notable amendments was the change in the standard used to modify child support orders. Before 1994, a litigant had the burden of proving that a “material and substantial change in circumstances” had occurred since entry of the last child support judgment. See, e.g., G.L. c. 208, §28, as amended by St. 1993, c. 460, §§60 to 62. Under current law, a child support order “shall be modified if there is an inconsistency between the current order and the order that would result from application of the child support guidelines.” See, e.g., G.L. c. 208, §28.
Mr. and Mrs. Morales were divorced by order of the Probate and Family Court in May, 2008. The Judgment of Divorce Nisi (“Judgment”) ordered Mr. Morales to pay child support of $172 weekly for the parties’ son. In May 2009, Ms. Morales filed a Complaint for Modification to modify the child support order due to her ex-husband’s increase in pay and promotion at work. After a two-day trial, the Probate and Family Court dismissed Ms. Morales’ Complaint for Modification on the grounds that she had not proven a “material and substantial change in circumstances” since entry of the May 2008 Judgment.
After the Appeals Court affirmed the lower court’s decision, Ms. Morales filed an application for Further Appellate Review, which was granted by the SJC. In March 2013, the SJC issued its decision and clarified the standard for modification of child support orders. Morales v. Morales, supra. The SJC concluded that the “trial judge, in ruling on the mother’s modification complaint, erred by applying a standard requiring a material and substantial change in circumstances (material and substantial change standard) rather that the standard set forth in G.L. c. 208, §28…”. Morales at 508.
The SJC’s decision is significant because there has long been a conflict between the modification standard cited in court decisions and the statutory language defining the standard for modification of child support orders. The inconsistency standard will simplify the judicial process, ease congestion in the courts, and reduce the amount of litigation involved in child support modification cases. Family law practitioners handling child support modification cases should not notice much change in terms of their approach to the subject as the Guidelines are still used for litigants whose combined incomes fall below $250,000. The most significant change will be that a client will no longer have to prove a “material change” has occurred since the last order. If the previous child support order is different from what it should be under the Guidelines, then the order shall be modified. However, it should be noted that if the original order deviated from the Guidelines, the new standard may not apply, and a client will have the burden of proving that a material change has occurred in order to modify the existing order.
Lower and moderate income litigants who are seeking to either increase or decrease a child support order, and who often do not have the financial resources to hire an attorney or engage in protracted litigation, will benefit the most from the clarified standard. Showing an objective “inconsistency” between a prior order and a proposed new order, instead of proving a subjective “material and substantial change in circumstances,” affords greater access to the courthouse because it is a simplified standard that the general public can easily grasp. In these tough economic times, when nearly 70% of litigants in some Probate and Family Courts are pro se, it is more important than ever to provide greater ease and access to justice for all Massachusetts litigants, especially those trying to navigate an often complex judicial system by themselves.
Ruthanne Withers is an Associate with the Attleboro law firm of Coogan, Smith, McGahan, Lorincz, Jacobi & Shanley, LLP. From 2005 through 2013, Attorney Withers was employed with the Family Law Unit of Community Legal Aid in Worcester. She represented the wife in the Morales v. Morales case.