Reflecting on "Another Year in the Trenches"

This is short, and not even based on an original thought, but it is so fitting for this to be my last blog post of the year. I just read this article written by seasoned criminal defense attorney Norman Pattis. Please, take a minute (or ten) and read it.... It is profoundly insightful and even if you didn't spend an entire semester in college taking an English class on only Milton's Paradise Lost (did I mention I was an English major before lawyer-land?), and even if you're not a lawyer, it speaks to a basic deep-rooted fear that comes with being a human being: What I do may not matter.

And it's true, what I do, what we all do, may not matter. This is not a deep or profoundly original emotion for me to harbor. That possibility looms large over everything.  But in reflecting on this past year, and varying amounts of destruction I've witnessed throughout this year in my family cases, I least can leave the year knowing that the reason I am a lawyer, the reason I stay a lawyer, is because at some moment, I might matter.  I don't know Norman Pattis. He's a more experienced, wiser attorney, he's a blawgger I came across via a re-tweet on Twitter. He practices in a completely different field than I do (a field, which I might add, that I want nothing to do with).  But his observations, questions and fears are a common thread among any job where human lives are affected.  He struggles with losing a case and having to answer to a mother whose son has gone to jail. I struggle with losing a case and having to answer to a mother whose has had her rights as a parent stripped of her.  Same result, different courthouse.  And I've only been at this for a few years, I can only imagine the toll that consistently witnessesing the wrenching of families being torn apart will have on me in 20 years.  But I'm up for it. And when I'm not up for it, I'll pass it on to some fresh-faced attorney who likes Will Ferrell movies and filing lots of responses to motions for temporary orders. Oh, and the next time someone pisses and moans about the sad state of the legal profession, I'm shoving Norman's post in their face.

So with that, my New Year's Resolution, at the least overreaching one, is to keep up.  "The law is hard; I must, somehow, become harder than sorrow"- Norman Pattis

When Your Elementary School Teacher Said "Listen and Follow Directions" You Should've Paid Attention

My elementary school report card used to have a "Behavior" section on it that had nothing to do with academics. As I recall, the categories were things like "Shows Effort" "Uses Free Time Effectively" "Participates in Class" and the ever-popular (ever-dreaded) "Listens and Follows Directions."  I did a little googling and no kidding, they STILL have that category (or at least Mrs. Walker in Westland, Michigan does).  I was, admittedly, a talker in elementary school (shocking, I know).  And my talking sometimes interfered with my "listening and following directions" skills.  I would bring home straight A's but still dread giving my report card to my parents because I would get "Needs Work" in the "Listening and Following Directions" category.  Devastating to my budding perfectionism as an 8 year old, but I digress.

As more and more clients come through my door, I have found that a LOT of people should have worked a LOT harder at getting at least a "Satisfactory" in the "Listens and Follows Directions" category.  Because now, as adults, it has a lot more consequences than your mom taking away television for two weeks.

In family law cases, when one person does not obey an agreement that has been approved by a judge (thus it is now  magically not just an agreement, but an order of the court) that person is at risk of being found in contempt.  This is not the kind of contempt we see in movies where a lawyer gets thrown in jail for being mouthy to the judge.

What is a "Contempt"?

What I'm referring to is a Complaint for Contempt. It is filed against the person who is supposed to be following an agreement or court order  by the person who is losing out by the deal not being followed.  The most common example of this is unpaid child support.  If a parent does not pay child support that has been ordered (or approved) by the court, then the parent not receiving that support can file a contempt.  The judge then determines whether the non-paying parent has the ability to pay, and if that parent does but is refusing to, then the judge finds the non-paying parent in contempt.  The same goes for following parenting schedules, following through with agreements or orders regarding selling a house, refinancing a mortgage, making spousal support payments, paying tuition, you name it.  If a judge approved your agreement (or just flat-out ordered you to do it) then you better make sure you get a Satisfactory in Listens and Follows Directions.

Consequences

Consequences for being found in contempt are serious.  A judge has equitable powers in a contempt proceeding, which means they don't have just the specific powers laid out in the contempt statute, but they have broad powers to order and change things around in any way they see fair to make the wrong right again.  Layman's terms? This is a LOT of power and you don't want to be the one to test its limits.  Not to mention, a person found in contempt will almost definitely be ordered to pay the other person's attorneys' fees and costs for having to bring the court case. Other potential consequences?  Jail time (and yes, it happens).  Fees, costs, interest and penalties. Reporting to programs through the Department of Probation on a regular basis. Changes in the original agreement or court order, including changes in the amount of support payments and changes to a parenting schedule.  And changes made in contempts are not generally kind to the person found in contempt.

Bottom Line:  Just because you agreed to it, doesn't mean it's flexible.  Agreements in family law that are approved by a judge are court orders.  So make your 3rd grade teacher proud and listen and follow directions.

And if you're reading this and thinking "I have a court order and so-and-so still doesn't follow it," you should definitely find an attorney in your area (Western Massachusetts, here I am!) and start taking steps to bring so-and-so in line.

Dear Tiger: Speaking My Mind Feels Grrrrrrrreat

I've been trying to not write about Tiger Woods but the more it pops up on my CNN news ticker and the more I see it in line at the grocery store, the more the "I can't shut my mouth when I have an opinion" side of me comes rearing its ugly head.  So here is my unsolicited opinion on the Tiger situation.

1. The people who think the solution to this debacle is for Tiger's wife Elin to just take the kids, his money and run for the hills haven't really thought this through.

Taking his money: Let's not kid ourselves here. Taking Tiger's money, even $80 million dollars under the allegedly renegotiated prenup, isn't going to hurt him.  He's worth a BILLION dollars.  Even if she took half, which arguably wouldn't happen since much of his earning capacity was achieved prior to the marriage, he still has $500 MILLION dollars and a very long, likely lucrative career ahead of him.  Hitting Tiger in the wallet isn't going to do squat.

Taking the kids:  Newsflash people. Even if you are a dirty, rotten scumbag cheater (oh, did I mention I'm not a fan of infidelity?), you still get to be a parent.  Even if Elin decides to leave Tiger, he's going to get to see his kids. And they are really young, so Elin and Tiger have a loooooooong road of co-parenting to navigate.  And not only will he get to have time with his children, but they are going to have to put all this crazy nastiness aside and be cooperative, able-to-communicate-without-slinging-curse-words-left-and-right parents to their kids.  At least, that's what they're gonna have to do if they don't want to end up raising the next LaLohan.

2. The media attention, while intrusive, is not inappropriate and Tiger's silence is only making things worse.

Tiger wants everyone to just shut up about it and leave him alone.  Well, duh, wouldn't you??  But really, he has profited immensely from not just his talent as a golfer but his well-calculated and cultivated image of

"Tiger Woods: Clean-cut, Down the Straight and Narrow Family Man." 

You think he would've gotten his who-knows-how-many-millions -of-dollars Nike deal if his public image was that of a tail-chasing, cocktail waitress connoisseur?  Of course not.

Well guess what Tiger? When you make money off your GOOD image, it's sort of only fair that there be a fascination with that image being shattered like the window of your SUV when your wife was trying to 'save' you with a golf club...uh yeah...But seriously, Tiger owes us an explanation. He can't keep letting the media do his talking for him. (Unless of course you really did have over 10 mistresses, fathered over 35 love children and clubbed baby seals after each rendezvous) And I am not talking about not some lame, bland apology about his "transgressions."  He owes us a full-on, Oprah-on-the-couch moment where he sincerely explains the TRUTH and just as sincerely apologizes for it.  Believe it or not, the public opinion can be pretty forgiving if you just 'fess up and then clean it up.  Don't believe me?

  How about Charlie Sheen?

[caught several times with hookers, destroyed marriage to model/actress wife Denise Richards, finally stops prancing around with Heidi Fleiss, now the star of Emmy-awarding winning sitcom and some fairly humorous Fruit of a Loom commercials alongside another gambling, tail-chasing athlete who just never got caught: Michael Jordan]

How about Robert Downey Jr.?

[incarcerated for drug use on multiple occasions (see mugshots  below), cleans up his act (congrats there Rob), wins us over as Ally McBeal's boyfriend and becomes the star of blockbusters like Tropic Thunder and the new Sherlock Holmes movie I can't wait to see - oh, and stops getting arrested]

Susan Boyle maybe?

[skyrocket to fame, loses the competition that made her famous, has very public, total mental breakdown, committed to a hospital, now has #1 best-selling album]

And an oldie  but goodie, Mr. Hugh Grant?

[caught with a hooker in his car while in relationship with model/actress Elizabeth Hurley, two Bridget Jones movies and a string of adorable, romantic comedies later (and no more hookers), he's still the utterly delicious English gentlemen we all swoon over].

There you have it Tiger, clear as day. Tell the truth, stop letting the media do your telling (and embellishing) for you, say you're sorry and then lay low, keep it in your pants and work on things with your wife. Which brings me to #3.

3. Yes, I think they should at least try to work on their marriage before deciding that this situation is unsolvable.

You'd think as a divorce attorney, and as a woman, I'd be the first to tell Elin "Once a cheater, always a cheater" or something akin to a Kate Gosselin soundbite "You have to protect the kids" (those rabid mistresses bite you know).  But really, marriage means something. And the first thing it means is that you can't just pick up and run when the golf club hits the windshield.  Aside from the fact that because they have kids, neither of them can just 'pick up and run,' they should try to work it out because they decided to be each other's husband and wife.  Counseling, hard work, amicability, respect, working together to raise their kids and fix each other, that is where the real answer lies.  Granted, these things probably weren't occurring when Tiger was running loose in Vegas, but they can start happening now and they can keep happening for the rest of their time together.

If they both commit to that, (and really, both of them, and really, commit) they won't be another celebrity divorce statistic for me to read about in the grocery line. Because honestly, between Brangelina, Suri Cruise, Britney and the Gosselins, I have enough celebrity drama to keep me plenty occupied when standing behind that lady with 35 coupons.

Massachusetts Child Support for Dummies

Introduction: In searching for images to add to this post, I googled "Child Support" Images...and discovered some incredibly disturbing images of child support stereotypes.  Children throwing money in the air, men behind bars, cartoons of women with jewelry labeled child support and some other images so offensive I refuse to even mention them (Hitler people, there was an image with Hitler involved).  THIS is why people need to take the time to understand the child support worksheet.  And if you want to get angry with someone, get angry with the people who created the worksheet (The legistlature, democracy at work! Did you pay attention to what your legislator was voting on...?) don't get mad at your attorney, the other parent's attorney, the judge OR the other parent.  The worksheet is what is, understand how to fill it out correctly, deal with it and maybe write your Congressman.

Ok, so you don't have to be a dummy to find child support calculations confusing.  I hear from clients and friends things like: "My friend has 2 kids and she gets three times the child support I do and I have 3 kids! How is that possible?" or "I know a guy who only pays $20 a week and he has more kids than I do! It's not fair!"  The answer? The mystery known as the Massachusetts Child Support Guidelines.  Feel free to read them in their entirety, but be ready with a pillow and a blanket *just in case* it's not as riveting as you expected.

The biggest reason in the disparity between individuals is  because they have different incomes. (Yes, people make different amounts of money, shocking I know)  The number one factor in child support in Massachusetts is income.  Massachusetts recently went to a shared income formula, so it is the income of BOTH parents that matters.  Expenses, such as rent, mortgage, car payments, credit card debt, do not factor into the child support worksheet at all.  The court requires that expenses be listed on the financial statement everyone needs to file, but outside of cases of extremely low income, expenses are *generally* not considered by the court.  Please refrain from whining about how unfair this is. If you want to whine, whine to your political representative, because that's the law and I'm not Congress.

So the child support guidelines worksheet.  Doing it on the computer is really simple nowadays.  You can find the worksheet on the trial court website, or just click here.  Every field is divided between Recipient and Payor.  At the risk of stating the obvious, the Payor is the person who is paying the child support and the Recipient is the person receiving the child support. All amounts are WEEKLY.  And income is gross income, which means what your paycheck says BEFORE taxes.  (Again, if you are going to whine about how unfair that is, do it to your political rep) If you are paid bi-weekly, you take the amount of your gross income on your paycheck and divide by two. If you are paid monthly, you divide by 4.3 to get the weekly amount.  Income means ALL income.  Rental income, unemployment benefits, social security payments, welfare benefits, and pretty much any other way money that is received by someone. Even contributions from other household members is considered income, so if your (or the other parent's) parents or new spouse are paying for things, that is income.  If someone's job is paying for their car, what that car payment would be if the person was paying it is considered income.  When I say everything is income, I really mean EVERYthing is income.

After income, child care expenses (which would include summer and day camps), health care expenses (what someone pays for health insurance for the child AND the child's uninsured medical expenses) and dental and vision expenses (again, what someone pays for the child's dental insurance AND the child's uninsured dental and vision expenses) are plugged into the worksheet.  These are WEEKLY amounts.  For health insurance, especially if taken out of someone's paycheck, figuring out the weekly amount is usually pretty simple.  Also for regular day care, it is pretty much like figuring out weekly income (if paid bi-weekly divide by 2, if paid monthly, divide by 4.3). For things like uninsured medical, dental and vision expenses, if you know the monthly amount, divide by 4.3 and if you know a general yearly amount, divide by 52.  The same goes for summer camp.  If you (or the other parent) pays for summer camp, take the total amount paid and divide by 52 to get the weekly amount per year.

All amounts entered into the worksheet are what is actually paid by each parent. Although if the children "always" go to summer camp, and the worksheet is being done before the summertime, entering those amounts is generally okay.

The section labeled "Minus Other Support Obligations Paid" can be tricky one.  This refers to amounts paid in the "traditional" manner of child support (a set weekly amount paid in some manner to the other parent for the support of a child or children born before the child subject to the worksheet) but it also refers to informal support provided for other children (not the child who is the subject of the worksheet) living in the home with a parent or voluntarily paid for children living outside the home.  If there are previous children a parent is paying for, run a separate guidelines worksheet (it can be a rough estimate) for those children and enter that amount in the current worksheet for support paid for other children.  For children born after the child who is the subject of the worksheet, other support paid is only for children living IN the home.  If you are paying support or supporting informally other children, you should consult with an experienced family attorney to best determine what amount should be entered on the worksheet.

So, once the top part is done, all you  have to enter is the number of children (line 2a) and the worksheet does the rest for you! The number at the very bottom is the number of child support to be paid per week.

If there is joint physical custody (meaning the child spends equal time with each parent, give or take 1 day), or split custody (where one child lives with Parent 1 and another child lives with Parent 2) then do one worksheet where Parent 1 is the Payor, Parent 2 is Recipient and a second worksheet where Parent 1 is Recipient, Parent 2 is Payor.  Take the final amount from each worksheet and subtract. Whatever the difference is, is paid to the parent who has the lowest amount of support at the bottom of their worksheet.  Note: If the difference is small ($20 or less usually), the parties can just agree, and the judge will probably agree as well, that no support be paid.

As with anything in the family court, it is always easier and advisable to at least get the advice of an experienced family law attorney.  How to determine what is income, what are legitimate expenses and how everything is calculated into weekly amounts can become a complex process.

Bottom Line: Having the worksheet done correctly is in everyone's best interest and can really cut down on animosity between parents, making everything better for the kids involved. And, once a form is filled out incorrectly, it is much more costly and time-consuming to undo it than it would have been to do it right in the first place. So make sure you work carefully and get it right in Round 1.  Hooray!!

The Real Deal Holyfield on Grandparents "Rights"

Ah yes, grandparents. They go by many names, but mostly they are fun, slightly (or not so slightly) meddling spoilers and lovers of small and big children alike.  That fabulosity in the rainbow boots to the left is my Grammy and even though she has always lived in Pennsylvania, and I was raised in New Hampshire, she has been a full-blown force of nature when it comes to love and attention for her grandkids.  In a good way.

But, as we all know, the relationship between grandparents and the parents of their grandchildren is not always lollipops and birthday presents.  Especially when one household becomes two households, or a disagreement explodes into a full-blown family fight, rifts between parents and grandparents can and do occur.  I get calls more often than I would like from grandparents wanting to know what they can do about a parent's cutting off the grandchildren's contact with grandparents.  And the really, really bad news on the legal front is...probably not that much.

Most people in this day and age hear phrases like "grandparent visitation" and "grandparents rights" and, probably due to popular media's para-phrasing of legal doctrines, believe that grandparents have a right to see their grandchildren.  Au contraire, said the U.S. Supreme Court in 2000.  (And yes, this happened 8 years ago, and people still don't understand)  See, what happened in the case of Troxel v. Granville, is that Washington (the state, not the dead president) passed a law that gave grandparents broad visitation rights with their grandkids.  Under that law, a fit parent could be ordered by the court to allow contact between grandparents even if that fit parent objected to the kids seeing the grandparents.  The U.S. Supreme Court took the side of fit parents and held that it violates a fit parent's due process right for the state to intervene in parenting matters and force grandparent visitation.

Well, then the states were stuck deciding what to do with all these grandparent visitation laws that they already had on the books. Some states got rid of the laws and some states, like Massachusetts, kept the laws and left it up their courts to decide how the law could be applied so it would still be constitutional.  And the mess in Massachusetts began...

No matter how fun you think it might be (and trust me it's not), I am not going into the lengthy (and tedious) discussion on what the standard for grandparents rights is in Massachusetts.  It is confusing to say the least, and there are entire seminars and roundtable discussions attended by lawyers AND judges who still can't make complete sense of the Blixt v. Blixt case that supposedly lays out the Massachusetts standard.  If you want to know more, you can read the cases or email/comment about it, but me? I'm going to pull a Palin, go rogue and give you very important options outside of the "grandparent visitation" box. This brings us to the "What is a Grandparent to Do?" section, where I will take the most common scenarios and give what I think is the best option.

What's A Grandparent to Do?

Ok, well first, probably not show off their "crooked finger" like Grammy is in this never-not-funny photo...ok, really though...

Scenario #1: Grammy is your "typical Grammy."  She always sees the kids on holidays and about once every 1-3 weeks for a dinner or family gathering.  Special outings and sleepovers are part of the relationship as well.  Grammy hears that her son and his wife are getting divorced. Wife and Grammy never got along, Grammy is afraid she won't get to see the kids anymore.

Alternate Scenario #1a but same Answer: Grammy's son is having a baby with woman he is no longer seeing. Mother of baby dislikes Grammy and is angry about the break-up. Grammy is upset and concerned she won't be able to see the baby.

Alternate Scenario #1b but SAME Answer: Grammy refuses to listen to her son and daughter-in-laws requests when she is around the grandkids. Parents say grandkid can't have soda, Grammy gives soda. Parents say no TV, Grammy gives TV. Parents raise the child Jewish, Grammy gives him a crucifix for Christmas. (You get the idea) Parents finally get fed up and stop bringing the grandkids around.

Answer #1: None of these is a scenario where grandparent visitation would likely be granted.  First, grandparent visitation does not apply when the parents are still living together! This type of traditional grandparent relationship is a privilege, not a right.  Therefore, Grammy should work on supporting her relationship with her child (which definitely means following the parents wishes).  In the divorce/separation scenarios, the best option for spending time with the grandkids is to see them when it is her son's parenting time. This also works if Grammy has a great relationship with the parent who is not her child and a rocky relationship with her own child.  And, of course, it applies when Grammy is having a difficult relationship with both parents.  Both in tact and newly separated parents need lots of support from family and friends as it is, so inviting them over for dinner (or any event where food is served really), offering to help pick the kids up from school, offering to babysit so parents can get a break, things of that nature, can not only be time with the grandkids but helpful to the parents (so long as Grammy realizes the whole "privilege not a right" thing and follows the parents wishes).  Channeling some of that gift-giving spirit towards school clothes or the cost of sports/extra-curricular activities is also a great way to help a separated(ing) parent (or an in tact family) and spoil the grandkids a little (especially if Mom or Dad would never buy Hannah Montana shoes). ALWAYS  ALWAYS ask or offer your suggestion to the parent first (and out of earshot of the grandkids).  Only talk to your grandchildren about it after the parent has given the ok. Even when it comes to well-intentioned outings and gifts,  parents need  to be a parent and not have their toes stepped on.   With divorcing/separated parents, this is especially true since the parents are in the best position to know how close the dreaded "Spoiled, Unruly Kid Whose Parents Overindulged Him/Her After Their Divorce" Syndrome is looming at large.

And absolutely, Grammy should also stay out of the divorce/separation process!  Following the rule of "If you don't have something nice to say, don't say anything at all" usually does the trick.  Grandparents with good intentions can risk alienating themselves from the children's other parent (or their own child) and *usually* end up making the situation worse.  Also, any badmouthing of the other parent to the children could lead to a court ordering both parent to keep the children AWAY from the grandparents, which is the total opposite of what most grandparents want to happen.

Bottom Line: Communicating with one's own child about time with the grandkids is the number one option for maintaining the grandparent-grandkid relationship. Period. Building and nurturing that primary relationship is the best use of emotional and financial resources for everyone.

Scenario #2:  The grandchildren have lived in Grammy's house with their parents for five years. Grammy has acted as a third parent, acting as a routine day care provider, cooking meals, giving baths, all with the blessing of the grandchildren's parents.  Grammy and parents get in a big, nasty disagreement, parents move out and cut off contact with Grammy in anger.

Answer #2:  First, try try TRY to rebuild/repair the relationship with the children's parents (See Answer #1).  If every possible effort fails, it may be time to consider de facto parent visitation. First, if the parents are still living together, grandparent visitation does not even apply.  However, Massachusetts has a fairly strong de facto parent law. Basically, if a non-parent truly acts like a parent, with the parents blessing, the court may give the non-parent scheduled time with the children.  The facts in this scenario closely match the requirements for de facto parent visitation.  A grandparent in this type of scenario should contact an experienced family law attorney (ahem!) and discuss how to proceed getting time with the kids as a de facto parent.

Bottom Line:  First, try to maintain the relationship with the parents. It's just better for everyone.  If it can't be done, then remember that just because someone is a grandparent doesn't mean grandparent visitation is their only option.

Scenario #3:  Grammy discovers that parents are neglecting the children and using drugs while children are in the house or present.  When she tries to talk to the parents about it, parents cut off all communication.

Answer #3: In this scenarios, the parents are acting as unfit parents. But STILL, try to support and maintain the relationship with the parents. In this case, it could mean an intervention, supporting rehabilitation efforts, family  therapy/counseling, Grammy caring for the children temporarily while the parents get help and definitely, Al-Anon for Grammy (because this is a family process).  If those efforts are truly exhausted, then to the courts we go.

If Grammy is able and willing, she should seek guardianship of the children.  She should speak to an experienced family law attorney  (double ahem!) about filing for this in the Probate Court.  If the children are truly in immediate danger,a temporary guardianship can be put in place on a emergency basis.  Reporting the situation to the Department of Children & Families is also an option, however, an emergency guardianship through the Probate Court can achieve the same protection of the children, and when the emergency is over, the case in the hands of the grandparents, not the state.

If Grammy does not want "full custody" of the grandchildren, THEN this could be a case for grandparent visitation, but probably through whomever the guardian of the children is.  Grandparent visitation does not apply to families where the parents are still living together!! Consultation with an experienced family law attorney is crucial at this point, as care needs to be taken as to what happens to the children with regards to custody.

Bottom Line: Tread lightly.  A family will never be the same after a court case has been filed.  Consulting with a family lawyer does not mean hiring someone to charge into court. If you consult with the "right" lawyer, they should be able to provide you with step by step options before anything is filed in court.  Only when all out of court options have been exhausted should grandparents seek to litigate to see their grandkids.

As always, questions on this topic are welcome via email through my firm's website and the comment section below.  This is an ever-developing, gray and messy area of law, further clouded by misunderstandings in the normal, non-law world. It is also one that hits so close to the heart for so many loving grandparents. Having an experienced family law attorney that not only knows the current state of the law, but also the "life costs" that can be involved in these cases can mean the difference between a separated family and a broken one.