Tag Archives: family law

Another Victory for Civil Gideon

Due process rights recently took another step forward as Hawai’i joined the overwhelming majority of states that automatically appoint counsel for indigent parents in child welfare proceedings.  On January 6th, the Hawai’i Supreme Court held unanimously that indigent parents have a constitutional right to legal counsel in cases where the state seeks to remove children from their parents’ home and place them into the foster care system. 

Under Massachusetts law, legal counsel must be appointed within 14 days of a petition filed for care and protection proceedings.  These are difficult cases in which a juvenile court judge must decide what is in the best interest of the child.  The judge determines whether a child has been or is at risk of serious abuse or neglect by a parent or guardian, whether the guardian is fit to care for the child, and who will have custody.   

The ruling in Hawai’i came in the case of In The Interest Of TM, in which the Department of Human Services (DHS) tried to take custody of a child from the petitioner.  The petitioner was not granted counsel until 19 months into proceedings terminating her parental rights.  The Hawai’i Supreme Court held that the Family Court abused its discretion by failing to appoint counsel earlier, noting that the delay did not give the petitioner a fair chance to defend herself due to the complex legal issues at hand and the significance of the proceedings.  Furthermore, the Court noted that the petitioner’s behavior improved significantly after the appointment of an attorney – she started making positive progress in her personal and home life, in large part because she was better able to understand what she needed to do in order to have a chance at custody of her child.   

When a state doesn’t require and subsidize legal counsel, the alternative is often pro se litigants who are at a major disadvantage at achieving justice.  The stakes are high in these cases and everyone should be represented by an attorney. 

 

Don’t forget to mark your calendars on Thursday, January 30th for the 15th annual Walk to the Hill.  This event, where 650 lawyers speak with legislators and staffers on the impact of civil legal aid funding in Massachusetts, is one of the largest of its kind nationally and kicks off the year of advocating for legal services.

 

UPDATE – For those looking for more information after last week’s post, we recommend this video on juvenile justice issues in which attorney Hank Coxe gives an entertaining and moving speech on the subject.

  – Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Simplifying The Custody Process When One Parent Lives Out of State

Even under the best of circumstances, child custody and parents’ rights are fraught, complex issues.  If one parent lives in Massachusetts and one does not, it is even more stressful, and here’s why:

Under the Uniform Child Custody Jurisdiction Act (UCCJA) which is the current law in Massachusetts, the Commonwealth has jurisdiction over matters of child custody for a period of 6 months after the child has moved from Massachusetts to another state.  Every other state except Massachusetts operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

This legislative session, Senator Cynthia Creem is taking the lead and has filed Senate Bill 711 which proposes having the UCCJEA supersede the UCCJA. The proposal is currently in the Joint Committee on the Judiciary awaiting a hearing date.

Interestingly enough, The UCCJEA isn’t actually a child custody law.  It’s a set of guidelines designed to make interstate custody issues more uniform.  It doesn’t have any effect on whether a parent receives custody or visitation, nor does it affect any substantive rights of parents. The UCCJEA is merely an enforcement tool and a method for determining which state has jurisdiction over a custody proceeding.  The purpose of the UCCJEA is to create uniformity and predictability in the custody process involving one parent living in MA and the other parent living out of state.

Court jurisdiction plays an important role in custody and visitation for parents who live in different states. UCCJEA helps to determine which court has the right to hear the case and make rulings — thereby avoiding dueling custody hearings in two different states.  It ensures that a jurisdictionally-proper custody/visitation order will be recognized and enforced across state lines.

Here are the basics about the UCCJEA:

The UCCJEA emphasizes enforcement.  It’s true that one parent may have to travel to hearings and trials outside of their state of residence, as well as find a lawyer who can represent them in the appropriate court of law.  However, the proposal permits out-of-state parties to be deposed or to testify by telephone, audiovisual, or other electronic means, which can prove less costly to the parties.  With potential options such as telephone conferencing and Skype available, it is not necessarily the case that the parent and child are burdened with returning to court in the home state.

In addition, the proposal provides that the court may assess travel and other expenses associated with out-of-state litigation to one of the parties. It also means that parents who abduct their own children won’t be able to run to another state for a custody ruling that they like better than the existing one.  The new proposal remedies discrimination against lesbian, gay, bisexual, and transgender persons in instances where a spouse, partner or significant other relocates to another jurisdiction – one that holds a person’s sexual orientation or gender identity against them when making custody determinations.

There are four basic considerations for a court to have jurisdiction over an initial child custody or visitation order:

  1. Where is the home state? The home state is where a child has been for at least six months prior to the legal action. The UCCJEA gives priority to the child’s home state.
  2. Is there a significant connection? Does the child have significant ties to a state and does that state have substantial evidence concerning the child?
  3. Is there a more appropriate forum? At times both the home state and the significant connection state decline jurisdiction in favor of another state that is more convenient.
  4. Is there a vacuum jurisdiction available?  If no court meets the above three standards, another court may step in and rule on the initial custody proceeding.

The current proposal before the legislature tackles issues that the UCCJA does not address. The domestic violence bar raised concerns regarding situations where parents take children in order to escape domestic violence.  Those concerns were incorporated into the bill as the “domestic violence exception”.  Furthermore, there are additional protections for victims of domestic violence in this bill regarding police intervention and authority to order costs and fees to prevailing parties that do not currently exist. The parties may also mutually agree in writing that the court may no longer have continuing, exclusive jurisdiction in court approved agreements, which is not currently available to parties in family law proceedings.

The UCCJEA benefits both children and parents by simplifying the custody process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Alimony Reform . . . Seeing the Light at the End of the Tunnel

At its April meeting, the BBA Council voted to support S 665, “An Act to Reform and Improve Alimony,” co-sponsored by Senator Gale Candaras and Representative John Fernandes.  This bill, the result of a Herculean effort led by the Legislative Alimony Reform Task Force, is the result of thoughtful discussion and negotiation.  The final product provides a structure that gives durational and amount limits to alimony orders while giving the court the ability to consider the facts and circumstances of each case, which is key to preserving judicial discretion within the framework of reform.  Our Family Law Section has taken it one step further and has provided additional comments for the Legislature to consider.

The Legislative Alimony Reform Task Force was convened to bring all parties with an interest in alimony reform together in one room to collaborate on a single, compromise piece of legislation. The Task Force constituted one of the broadest groups of family law stakeholders possible, including Chief Justice Paula Carey of the Probate and Family Court in an advisory capacity, and representatives from the BBA, the Massachusetts Bar Association, the Women’s Bar Association, father’s rights groups and private family law practitioners.  Members met for marathon sessions over fourteen months under strict confidentiality  —  trudging through various alimony reform proposals already in existence and working together on each piece of the new legislation.  The BBA’s Family Law co-chair, Kelly Leighton, acted as the BBA’s liaison throughout the process.

The call to reform alimony laws in Massachusetts has gotten louder and louder over the last several years.  These laws have a direct impact on the lives and livelihoods of so many people throughout the Commonwealth.  The current laws give little discretion to judges to set a termination date on alimony payments absent a significant change in the lives of the two parties. Often there is little consistency in alimony rulings because of the ambiguities in the current statutes.

We aren’t the first group calling for change in this area of the law, and it was only after our collaboration with other groups that it appears Massachusetts will finally benefit from legislative reform.  Our work on this started years ago, when the BBA and the MBA convened a joint task force to study the alimony issue and make recommendations.  In 2010 the BBA endorsed the report of that joint task force, which was utilized in the drafting of “An Act to Reform and Improve Alimony.”

Although the alimony reform process may still take some time, it certainly looks like Massachusetts will finally have an alimony system which is consistent while allowing for judicial discretion.  Legislators rely on groups like the BBA to help frame issues in a way that can bring about meaningful change.  The next step in the process is to weigh in publicly with our support when the Judiciary Committee schedules a public hearing on this issue.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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