Saturday, January 17, 2015

What can a parent do when they are the victim of parental alienation?

There is no perfect answer to this question. As long as one parent keeps fueling the alienation flames, the alienation will continue. Every case of parental alienation is different but the cause is the same. One parent uses the children as weapons to hurt the other parent. In essence, the parent is sacrificing the children's well being to fulfill their own selfish desires. The following suggestions may make no difference or may solve the problem.
  1. Keep a diary. This should detail all of your attempts to maintain a relationship with the children and the children's responses. Whenever possible, backup the diary with documents that corroborate the information you note. Emails, telephone bills, and receipts from stores and restaurants should be preserved. Use an email program that documents when the emails are read by the recipient.
  2. Take advantage of all contacts permitted by the court. Don't miss any visits. Make telephone calls or Skype calls every day if allowed by the court. Use texting to communicate with the children but not excessively. Send gifts or cards for every occasion possible. Cards are created for many holidays such as New Years, Valentine's Day, Independence Day, and many others. Make sure you have copies of the cards and enter the mailing of the cards and the gifts in your diary. Of course, make sure you send gifts for major holidays or events like birthdays or Christmas.
  3. Attend every event in your child's life. Don't miss a dance recital, a little league, a concert, or any other event in which your child is a participant. Contact the school and obtain information about events, parent teacher conferences, and make sure the school has your contact information. Do the same for the child's pediatrician, dentist, and other doctors. Make sure you are on time for each event.
  4. Do everything that the court orders. If the court orders counseling, make sure you go to counseling. If the court orders drug tests, make sure you avoid using drugs and take every test ordered. Continue counseling and drug tests even if the children or the other parent stop attending.
  5. Take a parenting class. You may be the best parent in the world but the court will be impressed by your efforts to improve yourself.
  6. Never ever use physical force to discipline your children. The law may permit use of reasonable force but you are under a microscope and can't afford the luxury of using physical force. The exception is that you may have to restrain (but not hit) a child to prevent harm to another child, yourself, or someone else.
  7. Avoid discussions with your child about the alienation, child support, or any issue you have with the other parent. Make sure the children can't hear when you have discussions with other people about these matters.
  8. Be careful about use of social media. You should assume that everything you post on social media will be reported to the Court. Never say anything critical or negative about your children, the other parent, the attorneys, or the Court. Social media can be used to make positive statements about the children but do so sparingly. Don't comment on every posting by your children. It will make you look like a stalker.
  9. Tell your children that you love them. Tell them this at the end of every phone call and every visit. Don't overdo this. Once a day is fine. Four times a day makes you look crazy. Don't ask the children to respond in kind. Pressuring the children for affection is certain to hurt you.
  10. Be persistent and consistent in your efforts to maintain your relationship with your children. Don't give up hope no matter how frustrating it becomes.
  11. Retain a family law attorney and regularly discuss the parental alienation and your efforts to maintain the relationship. In many cases, only court action can stop the abuse to the children. An experienced family law attorney should be able to advise you about when to resort to the courts. Like everything else in regards to parental alienation, it may take a number of court actions before you start to see results.  In the most severe cases of parental alienation the court can  change custody.

Saturday, January 10, 2015

Cyberharassment is still harassment

The internet provides new opportunities to commit criminal acts. However, in many instances, laws that were not designed for the internet provide remedies. A recent case illustrating use of a traditional law to punish internet conduct is Commonwealth v. Johnson, 470 Mass. 300 (2014).

In this case, a husband and wife harassed their next door neighbors through a third person. They placed false ads on Craig's list so that potential buyers of goods would bother the family day and night. They filed a false claim of child abuse with the state resulting in an investigation of the family. In addition, threatening emails were sent.

Massachusetts G.L. c. 265, § 43 punishes as a criminal act causing a pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person. The statute does not mention internet, computers, or cyberspace. However, the court found that this statute was sufficient to convict a person who used the internet and computers to harass someone.

Just because computers and the internet became household items after most criminal laws were created doesn't mean that they are not governed by the laws that predated the internet. If you are the victim of harassment you should consult an experience lawyer who can advise you concerning the laws that are available to protect you.

Friday, December 26, 2014

Health Insurance, Emancipation, and Separation Agreements

In Massachusetts divorces health insurance is a priority concern for judges. It is standard practice to
provide health insurance for children until they are emancipated. In addition, unless there is a remarriage, health insurance is usually provided for an ex-spouse until all children are emancipated. The ex-spouse is may also be included in coverage because in Massachusetts most family health insurance policies cover an ex-spouse at no additional cost. As long as there is a dependant child, a family health insurance policy is needed. It is now time to reconsider the standard approach to health insurance in separation agreements.

Under prior law, once a child graduated from college or was otherwise emancipated, they had to get their own insurance policy. The law did not allow them to be covered under their parents' policies. Obamacare has changed this. We can now cover children under a parent's policy until age 26. If a parent is going to provide insurance for a child after emancipation they should also cover the ex-spouse as well. While a parent may voluntarily cover a child they may find that employers won't cover an ex-spouse unless there is a court order that requires such coverage. Divorce attorneys should anticipate the ability to cover the ex-spouse for an extended period due to Obamacare and draft language to address this.

Not every child will need health insurance coverage from a parent after emancipation. Many children will find employment and obtain health insurance from their employer. If this happens, there won't be a family health insurance policy available to cover the ex-spouse. Whatever language is used in a separation agreement needs to consider this potential.

There is also the issue of the cost of providing post-emancipation health insurance for a child. A family plan will always cost more than an individual plan. Child support in Massachusetts presumes that both parents will contribute to the cost of raising a child. It would be reasonable for the parents to share the cost of post-emancipation health insurance for a child. While a judge can't order health insurance for a child after emancipation, the parties can contract for such insurance. Splitting the cost of the health insurance would constitute consideration to support the contract. In the event the parties later litigate over the enforceability of such a contract, splitting the cost may make the difference between enforceable and non-enforceable.

A good separation agreement should anticipate as many possible changes as possible. Planning for a child and ex-spouse to continue to have health insurance after the child's emancipation should be part of every separation agreement. An experienced divorce attorney should draft language to provide health insurance for this additional period.

Sunday, December 14, 2014

Child support agreements need court approval

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.

Saturday, December 6, 2014

How do you probate an estate in Massachusetts when you can't get a death certificate?

Sometimes people die under circumstances where their body can't be found or can't be reached. Years ago I probated the estate of a man who sailed his boat into a hurricane and was never found. A few years ago there was a story in the news of a man in Florida who fell into a sinkhole and they didn't recover his body. A person can die in the military in a combat zone and his body may not be recovered. In all of these situations no death certificate will issue. Contrary to popular belief, an estate can still be filed.

Most estates in Massachusetts are filed in court with a copy of the death certificate. The death certificate is used to prove the death but it is not the only way death can be proved. The uniform probate code allows death to be proved by other means. If there is an official report such as from the police, coast guard, or army, then the official report can be used to prove the death. Even without an official report, witnesses can give testimony to prove that the person is dead.

In all of these situations, there is evidence that the person died. Witnesses saw the event that killed the person or they saw the body. It is different if the person just disappears and is never heard from again. Merely disappearing does not mean the person has died. In this situation, the family may have to wait five years before they can seek a declaration of death.

If you are in the unfortunate situation of knowing that a relative has died but no death certificate has issued, then you should consult an attorney who can probate the estate and prove the death without a death certificate.

Sunday, November 30, 2014

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.

Sunday, November 23, 2014

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.