Our attorneys have years of combined experience in the practice of divorce and family law, a legal service area that, in addition to divorce, can include guardianship actions, domestic violence proceedings, and cases involving custody, visitation and support of minor children between unmarried individuals (also known as "paternity" cases). Regardless of the specific proceeding, divorce remains the core reference point for domestic relations practitioners where most family law cases overlap with one of the four primary issues found in a typical divorce case:
A paternity case, for example, is generally analogous to the child custody and support components of a divorce case. Similarly, a judge's ruling in a guardianship or the visitation portion of a domestic violence case involving children will be heavily influenced by the "best interest of the child" standard that dictates child-related decisions in a divorce case. In short, the four primary elements of a typical divorce case provide a basic roadmap for the typical family law litigant – regardless of the particular legal proceedings with which they might be involved.
In any family law case involving minor children, the court must determine which parent the children will reside with, how major decisions affecting the children will be made made, and the frequency, duration and conditions dictating the non-custodial parent's parenting time. Although the precise legal standards can differ for legal proceedings involving non-parents seeking custody (such as a petition for guardianships or grandparent vitiation), in the cases involving parents, a judge generally has wide discretion to enter orders pertaining to custody and parenting time consistent with the "best interests of the child"...
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The law recognizes two forms of custody: legal custody and physical custody. A parent with legal custody has the right to participate in major decisions affecting a child's life, such as serious medical or educational decisions. A parent lacking legal custody generally does not have the right to request confidential records relating to a child from schools or doctors, and can sometimes encounter difficulty with tasks as simple as picking the child up from school without the other parent's written permission. In Massachusetts, there is a presumption in favor of married parents having joint (shared) legal custody of a child. Thus, divorced parents generally share access to their child's confidential records, with each parent having an equal say in major issues affecting the child's life. For unmarried individuals, there is no presumption in favor of joint legal custody, however, in cases in which a father demonstrates a strong interest in his child's life, it is very common for the court to award or encourage a mother to agree to shared legal custody with the father.
The parent who is award physical custody of a child by a court (the "custodial parent") is the parent with whom the child lives most of the time. The custodial parent has primary responsibility for day-to-day decisions affecting his or her child, and is responsible for most of the everyday costs and expenses associated with the child's upbringing. Accordingly, the custodial parent generally receives weekly child support from the non-custodial parent. In most cases, the court will grant non-custodial parent the right to have visitation (or "parenting time") with the child.
When should you hire an attorney in a custody dispute?
If you spend a day watching self-represented individuals argue custody and visitation issues in Probate and Family Court, a certain pattern emerges: one parent accuses the other of misbehaving around the children, only to have the accused parent deny the allegation and accuse the first parent of an equally serious misdeed. A judge's day is full of such ambiguous "he-said/she-said" scenarios. In a typical custody and visitation dispute that does not involve allegations of physical or sexual abuse, the attorney must break out of the "he-said/she-said" construct by developing and delivering clear, persuasive evidence of a parent's conduct to a judge. A skilled family law attorney understands the tools and techniques available for developing evidence, the specific legal standards that dictate custody cases, and the idiosyncratic "unspoken rules" that make a particular argument more or less likely to succeed when presented to a judge.
Meanwhile, in custody cases involving allegations of physical or sexual abuse against a parent, a competent attorney is essential to navigate the complex intersection between criminal proceedings, Department of Children and Families investigations, and the Probate and Family Court. Unlike financial issues, which can be preserved on paper and often revisited at a later date, issues relating to custody and visitation can be extremely time-sensitive. Knowing how and when to address immediate child-related issues and events is crucial. If a serious incident has occurred involving your child and the other parent, you may not have much time. Consult an attorney immediately.
In most cases, a parent who is granted primary physical custody of a child will be entitled to some form of financial support from the non-custodial parent. Congress has promulgated basic, minimum child support standards that each of the states must follow since the late-1980's. These federal standards require that each state develop and publish a mathematical formula that determines the state's presumptive, "standard" child support order in a given case. Accordingly, each state now publishes its own "Child Support Guidelines" that dictates how much money the typical non-custodial parent will pay a typical custodial parent based on the gross income of each party and the number of children they have...
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Massachusetts last revised its Child Support Guidelines on January 1, 2009. Most observers agree that the most significant change in the 2009 Guidelines was the de-emphasis on the custodial parent's income in the determination of weekly child support. Under the previous Guidelines, a custodial parent with significant income was arguably "penalized" for working - their weekly child support would be substantially reduced in proportion to his or her own earnings. The 2009 Guidelines place a much greater emphasis on the non-custodial parent's income. As a result, a custodial parent who sees his or her gross annual income rise or fall by more than $10,000 might only see a $5 or $10 per week change in his or her child support under the Guidelines.
When should you hire an attorney in a child support dispute?
Experienced family attorneys are typically cautious when discussing whether they can be helpful to an individual in a typical child support proceeding. The starting point, in every case, is to acknowledge that judges give great weight to the Massachusetts Child Support Guidelines, and only deviate from the Guidelines in unusual circumstances. That said, factual scenarios do exist that make a judge less likely to follow the "Guideline order" in certain cases. Moreover, when one parents owns his or her own business, has a second job, or is unemployed or underemployed, it raises the question: how should the court calculate the parent's income?