De Facto Parent Status & Protecting your Parental Rights Through Co-Parent Adoption

Massachusetts legalized same-sex marriage in 2003, and while that was a landmark decision, making Massachusetts the first state in the country to legalize same-sex marriage, it did little to define parenthood within these types of marriages. It wasn’t until February 2012 that the Massachusetts Appeals Court ruled children born to married same-sex couples would be presumed to be the legal child of both of the parents.

This ruling, however, only applied to couples who were married at the time of the child’s birth. This protection is not available to same-sex couples who are not married at the time of the child’s birth. Although the couple may have jointly participated in the decision to have and expected to share parental responsibility for the child, the birth mother is considered the only legal parent.

This situation can be remedied through a co-parent adoption in which the parent who gave birth and her partner petition the court to have the other parent legally adopt the child.

Problems arise most frequently when the parent who did not give birth to the child never legally adopts the child. Without going through the formal adoption process the non-birth parent has no legal rights to see the child or make decisions regarding the child’s life if the couple breaks up.

If there is a breakdown in the relationship and the non-birth parent wishes to remain in the child’s life against the wishes of the birth parent the only remedy left to is to file a Petition in Equity and seek De Facto Parent status.

A De Facto Parent was defined by the court in E.N.O. v. L.M.M., 429 Mass. 824 (1999) as:

“One who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”

While the courts have clearly recognized the role of a de facto parent in a child’s life a de facto parent is still not afforded the same rights as a legal parent. In the E.N.O v. L.M.M., the non-legal parent was eventually award visitation with the child, but was not awarded legal custody.

Legal custody is important for many reasons, but most relevant to this topic, it gives a parent the right to be involved in major life decisions relating to the care of the child, including, medical treatment, religious instruction, education and life-style.

There have various other cases dealing with this of de facto parenting, but none of them have awarded legal custody to the de facto parent. In A.H. v. M.P., 447 Mass. 828 (2006), the court reasoned that legal custody might be established in a cases where the non-legal parent can show at least as much care-taking as the birth parent.

In most marriages it is unrealistic to think that there is going to be an equal division of parenting. Many of us strive for that percentage, but the reality is that parenting isn’t the only role that needs to be filled in a marriage or partnership, and we divide tasks according to our strengths. Where one parent takes on more of the financial burdens of a household many of us wouldn’t think that makes the parent any less of parent to the child, and in a traditional heterosexual relationship this would not be the standard use in reaching a custody determination. The A.H. v. M.P., case was decided in 2006 and since that time no de facto has been able to reach this incredibly high burden and gain custody of their child.

Adoption is not only important for the non-legal parent. The birth parent should also be concerned about the ramifications of not having their partner adopt the child they decided to have together. If the non-legal parent does not adopt the child then they do not have a financial obligation to support the child, which means that if there is a break-up the non-legal parent does not have to pay child support, pay for any daycare costs, or any educational costs for the child.

While the laws on same-sex marriage and parenting have come a long way in Massachusetts there is still a considerable amount of progress that needs to be made, and if you are in a same-sex relationship the unfortunate reality is that you may need to take additional steps to prove to the world and courts that you are the child’s parents.

On a happier note, however, co-parent adoptions in the context described above, where the sperm/egg donor are anonymous, is a relatively simple process. If you are considering having a child with your partner or have already made the decision you need to know your rights so you can protect yourself and your child’s future.

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Child Custody & Removal Cases in Massachusetts

Anyone will tell you that the best thing for a child is to have both parents actively involved in their lives. It’s a common sense statement for those who have had the benefit of both parents being actively involved in their lives, as well as for those who have not.

Unfortunately, the ideal of two parents being equally involved in their child’s life after a divorce or break-up of the family unit is not always realistic. It can be unrealistic for a number of reasons, but the most difficult situation I see on a regular basis is where one parent needs or wants to move out of the state for financial reasons, like a new job, or to be with a new spouse.

These types of cases are called removal cases, and they are some of the most difficult cases for families as well as family law attorneys. The removal statute M.G.L. c.208 s. 30 states that:

“A minor child of divorced parents who is a native of or has resided five years within this commonwealth 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 commonwealth 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 purposes of this and the two preceding sections.”

The statute makes it unlawful to remove a child from Massachusetts without the consent of the other parent or by order of the court. Although the statute does not specifically address removal where the parents were never married those children are afforded the same protection as children of married parents and therefore subject to the same rules regarding removal.

They key to analyzing the likelihood of a parent’s request to remove a child from the Commonwealth hinges on the meaning of “upon cause shown”. The courts have interpreted this language to mean that there must be a real advantage to the requested move and that it be in the child’s best interest. The type of custody you have will also dictate how this matter is decided.

Removal – Custodial Parent

Where one parent has primary physical custody of the child the courts will do a two-part analysis in deciding issues of removal. The first part of the test is looking to see whether the custodial parent is requesting a move for a good and sincere reason, and whether or not that move will result in a real advantage to the custodial parent. The second part of the test, if the first part is satisfied is to decide if the move is in the child’s best interest.

Removal – Joint Custody

For parents who share joint physical custody of their child the analysis is only whether or not the move is in the child’s best interest. While on its face this analysis appears to be easier it is actually a much harder standard to meet. In this scenario the court gives much more deference to the non-requesting parent’s interest in maintaining their relationship with their child, and much less weight is given to the advantage that would accrue from the move to the parent who is requesting removal.

Removal – Unwed Parents

As I mentioned the removal analysis is based on what type of custody you have, however, one additional factor that unwed parents must be aware of is that unless you have established paternity then legally the mother is the only one who has any custody of the child and can remove the child from the state without your permission.


Whether you are an unwed parent of a child, divorced or still technically married you should not remove your child from the Commonwealth without first getting permission from the other parent. Even if it is technically legal, removing your child without permission could result in an adverse custody decision later on.

Removal cases are difficult cases to win and unlike other family law cases they go to trial frequently. If you are considering a move out of state or seeking to prevent a child from being removed you should consult a family law attorney who can review the facts of your case and help you start planning how you are going to handle your case.

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Clarified Standard for Child Support Modifications

There has been some debate between judges and lawyers since the most recent child support guidelines went into effect in 2009 about the standard that must be met before a pre-existing child support order can be modified.

Traditionally a Complaint for Modification can only be brought where there is a “material and substantial change in circumstances.” However, the language in the G.L.c. 208, §28 (2009 Child Support Guidelines) contradicted this standard, by requiring only that there be an “inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines.”

Recently the Massachusetts Supreme Judicial Court issued an opinion clarifying this inconsistency, and ruled that there does not need to be a material and substantial change in circumstance to file a Complaint for Modification of Child Support. The only requirement needed to modify a child support order is that the amount stated in the previous order does not match what the court would order today.

This is something many Massachusetts family attorneys have believed to be true for years, but this opinion will help create uniformity of practice throughout the Massachusetts Probate and Family Courts.

If you are considering filing a complaint to modify an existing child support order you should first consult the child support guidelines. It is rare, but I have seen complaints seeking a reduction in child support that weren’t well planned and eventually resulted in a higher amount of child support being awarded.

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Divorce – How Do I Get My Spouse To Leave the Marital Home?

When a couple is divorcing tensions often run high and this can make sharing a residence unpleasant in the least and dangerous in the worst circumstances. Most clients are surprised to find out that one party doesn’t have to leave the home just because there is an action for divorce pending.

The courts are cognizant of the fact that while parties are divorcing they might not want to be around each other, but often times it’s a financial necessity that they share the home in order to keep expenses at a minimum.

The courts are also reluctant to kick someone out of their home because they know that these situations usually become permanent, and absent some harm befalling the other spouse or the children it’s not fair to by default award one of the parties the marital home without a trial on the merits.

The standard that must be met before a Probate & Family Court Judge  will require one of the parties to leave the marital home is found in M.G.L. ch. 208 § 34B, and is as follows:

”the health, safety, or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such order.”

This is a reasonably high standard to meet, and is typically only done after a hearing on the merits, which requires the filing of a motion with a minimum of three days notice to the other side.

If an order to vacate the martial home is granted it is technically only good for 90 days. Often, however, the party who was forced to vacate decides voluntarily to remain living elsewhere.

If you are considering filing a motion to vacate to get your spouse out of the marital home you should at least consult a family law attorney who can review the facts of your situation to give you an idea of you have met the standard articulated above, because if you don’t meet the standard and you bring the motion anyway it’s going to make living with your spouse that much more difficult and could undermine your credibility in front of the judge.

If you are considering filing a motion like this please contact us for a free 30 minute consultation.


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What does Disney Land and the Massachusetts Probate and Family Courts Have in Common?

I think lawyers and litigants alike can agree that Massachusetts Probate and Family Courts are definitely not the most magical place on earth, but one of the things they do have in common is long lines and even longer wait times.

Thanks to a partnership between Boston College MBA program and Probate and Family Court the courts might be getting a little more magical in the near future.

The partnership is designed to evaluate and improve the operation procedures currently in place in the Probate and Family Courts. One of the suggestions currently being bantered around, according to Mass Lawyers Weekly is “amusement park style queuing”.

The hope for the project is to increase efficiency for the staff, as well as lawyers and litigants, and hopefully decrease the amount of time people have to wait to get their case heard. This might sound like a small improvement to those of you who have never spent an eight (8) hour day in the family courts waiting for your case to be heard, but trust me this type of an improvement would have a huge impact in reducing the costs of legal fees in litigation and improving the overall experience for lawyers and litigants.

While the idea of roped off lines and ticket checkers isn’t quite the type of improvement I am hoping for, I applaud the effort being made by the Massachusetts Probate and Family Courts to improve efficiency.

The courts are seeing an increasing amount of litigants trying to handle their cases themselves because of the costs associated with litigation. If the courts are able to keep the wait times and by extension the legal fees generated by waiting in a court house all day down, then hopefully more people will be able to hire attorneys to help them through the process. The court’s efficiency will also improve because they will be dealing with attorneys who already know the system (hopefully) and don’t need as much help and attention from the clerk’s office.

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New Opinion from the Supreme Judicial Court Requires Probate Judges in Massachusetts to Consider Tax Consequence of Alimony

A New Take on Divorce and Taxes

With tax season right around the corner many of us have taxes on the brain, and according to a new opinion issued by the S.J.C., so too must the Probate and Family Court Judges in Massachusetts.

The decision issued by the S.J.C on February 8, 2013 holds that a judge must consider the potential tax consequences in writing divorce judgments or considering modifications of those judgments. The decision does not require judges to do their own tax analysis, but instead holds the when a judge is provided with “appropriate evidence” relating to tax consequences that evidence must be considered.

L.J.S.  vs.  J.E.S.

“Our conclusion that a judge should consider the tax consequences of a judgment when creating or modifying divorce instruments comports with the statutory mandate to consider the parties’ income and liabilities. … Our conclusion should not be taken to mean the judge must minimize tax consequences as a result of those considerations. The judge has ‘considerable discretion’ to make those determinations. …

“… Where, as here, the tax consequences are uncertain, the judge must take that uncertainty into account and consider whether there are alternatives that will accomplish the judge’s purposes but avoid the potential that his decision will trigger adverse and unwanted tax consequences.

“Given our conclusion, a judge, in his or her discretion, should consider the possible application of I.R.C. §71(c)(2), and explore whether the objectives of the judgment can be met in a manner that does not create an uncertainty of potentially unfair tax consequences.”

How this Changes Things

This new law does not change the legal landscape much, but what it does do is bring the issue of taxes treatment and consequences to the forefront of many family law attorneys and judges’ minds. In this case the husband was looking for a modification of the original divorce judgment, but with proper planning some of these tax issues might have been avoided.

As a family law attorney I understand how expensive divorce can be, so I understand why clients are reluctant agree to allow me to hire a C.P.A. to do a tax treatment analysis, but the most recent decision issued by the S.J.C. shows just how important that analysis can be to the litigants and Judges considering your case.

Judges and lawyers are not tax professionals. We do our best, but clients would be best served by hiring a C.P.A to do a tax analysis of any potential settlement agreement or to present evidence to a judge at trial. A tax analysis can also be beneficial in maximizing the income available to a family in the future.

The economic reality for most families going through a divorce is that there are or will be two households living on the same income one household previously subsisted on, and if a family can save some money with creative tax strategies everyone will benefit.

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Same-Sex Military Families One Step Closer to Receiving Equal Benefits

New Benefits Available to Same-Sex Couples

In the last three years the military has made a number of substantial movements toward gender and same-sex equality for service members and partners of those serving in the armed forces.  Recently, Leon Panetta, as one of his last acts as Secretary of Defense, announced a list of new benefits that will be available to same-sex partners of military personnel.

New Benefits Available to Same-Sex Partners of Military Personnel who sign a “Domestic Partnership Declaration” will include the following:

  • Military id cards will be issued to the partners, which will allow them greater access to military bases and commissaries;
  • Same-sex partner will now have access and the right to visit their partners in military hospitals;
  • They will also be able to receive many survivor benefits, including life insurance payments.

Despite this most recent step in the right direction, there are still many benefits that are not available to same-sex military spouses. The right to get medical and dental insurance through your spouse, certain survivor benefits, and housing allowances are still not available to same-sex partners. The reason they are not available is because the Defense of Marriage Act (DOMA), which defines marriage as a union between a man and a woman does not recognize the legality of same-sex marriage.

DOMA is currently under review by the Supreme Court, and could potentially be overturned if the Court finds it unconstitutional under the equal protection clause of the Fourteenth Amendment. Oral arguments are schedule for March and a decision is expected in June 2013.

Since DOMA took effect in 1996 it has created many problems for same-sex partners and their families, and especially for those families with partners serving in the military. The issue I see most often is that a service member’s retirement pension is not assignable in a divorce. Especially with the economic downturn in recent years often times the largest asset in a marriage is one of the spouse’s pension. There are creative ways to distribute the remaining assets so that the spouse not legally permitted to receive a share of the other spouse’s pension is still able to support themselves, but this requires special knowledge that many family law attorneys are not familiar with.

I hope by June of this year my same-sex clients will be entitled to the same treatment and benefits as my heterosexual clients, but until DOMA is officially overturned there are important rules and regulations same-sex couples considering divorce must be aware of. For more information please call me for a free 30 minute consultation

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Probate Courts Proposed Rule Change Could Make Filing Uncontested Modifications Much Easier

The Probate and Family Court in Massachusetts is proposing a change to the procedure for filing joint Complaints for Modifications in Massachusetts. The new procedure would allow parties to agree to modify certain terms of their divorce judgments, separation agreements, or parenting plans without ever having to go to court. For many people who have already been through the court process this proposed rule change will be a dream come true.

The Probate and Family Courts in Massachusetts are routinely overburdened and understaffed and because of the volume it can take a while even get a hearing date, and once you get to court it can take hours before you can be heard by the judge. These changes will save time and money for litigants as well as the court system.

If the proposed rule passes parties would be able to file a joint petition for modification signed by both parties, the new agreement, a financial statements, and a proposed order. The Judge would then review the documents and decide if a hearing was necessary. If a hearing is not necessary the new agreement will be accepted by the court as a modification of your old agreement or judgment and would enter as a new court order.

For details on the proposed changes to Supplemental Rule 412 please see the press release from the Chief Justice Paula M. Carey notice-invinting-comment-rule-412

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Modfication of Alimony & Retirement – Starting March 1, 2013

In March of 2012 alimony payors across the state rejoiced over the enactment of the new Alimony Reform Act. The Alimony Reform Act, among other things, provided the court and litigants with guidelines on durational limits and monetary amounts of alimony, but it also did another very important thing. The Alimony Reform Act provided for modifications of existing alimony orders that were entered into before March 1, 2012 under certain circumstances.

One of the most celebrated and controversial grounds for modification as the right of the payor to seek termination of alimony payments upon attaining full retirement age. Full retirement age is defined under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416. The age for most litigants today is between 65-66 years of age.

Despite the passage of the Act in March 2012 those who were paying alimony under a pre- March 2012 order were not entitled to seek a modification of that order until this year.  On March 1, 2013 anyone who has attained full retirement age, or will attain full retirement age by March 1, 2015 can file a complaint for modification to terminate existing alimony orders. The language contained on the Act also makes it clear that just because the alimony payor is still able to work past the age of retirement that will not be sufficient grounds to extend the order.

Extensions of these existing order can, however, be sought where there is good cause shown. To show good cause for an extension of the order an alimony recipient will have to prove by clear and convincing evidence that there has been a material and substantial change that occurred after the order entered that would require an extension of alimony payments.

The one caveat to this new law and the ability to modify existing alimony orders is that the agreements and/or court orders must merge into the judgment of divorce and not survive. If an agreement survives that means it is an independent contract between the parties and therefore not modifiable by the court.

If you were divorced prior to March 1, 2012, you are presently age 63 or older you should contact a knowledgeable family law attorney who can review your alimony order/agreement and determine whether or not you are eligible for relief from payment under the new Alimony Reform Act.

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Congress Lets the Violence Against Women Act Expire

The Violence Against Women Act that has been helping immigrant families escape horrific domestic violence situations since 1994 exists no longer.

VAWA Expires


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