Massachusetts Child Support Guidelines and Shared Parenting: Wrestling With Those Puzzling Provisions of the 2013 Guidelines (Part Six of Ten)

In Part Five, I began to discuss the puzzling new provisions of our current 2013 Guidelines and ended with the presentation of what I see as seven inter-related and overlapping issues, which I will further examine in this part using a recent court case as an example.  First, a short restatement of those basic seven issues (for a more detailed description of these issues themselves, see Part Five again):

1. How do we count parenting time to arrive at percentages?
2. When and how should we deviate when the noncustodial parent has less than 33 percent?
3. What does "approximately equally" mean?
4. What does "approximately one-third of the time" mean?
5. Do we want dramatic changes at the 33 percent line?
6. What does “average” mean here?
7. Must the “recipient” always be the parent with more parenting time? 

Nearly all of these issues arose in a recent post-divorce case. In it, I represented a father with less parenting time and less income than the mother. Father believed he had his children 36-38 percent of the time, while Mother claimed he had 33 percent or even less. How to calculate time – days, nights, school days, weekends, holidays – is an open question that threatened to be a big one for us before we managed to settle right before trial, although without resolving that issue.

The 2013 Guidelines unfortunately made percentage of time important without also stating how to calculate it. Before the 2013 Guidelines, there was rarely a need to calculate parenting time with precision. Case law pre-dating the new guidelines suggests night time and sleeping hours cannot be discounted in favor of “quality time” during the day. Katzman v. Healy, 77 Mass.App.Ct. 589, 594 (2010) (" The law has not…neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it.”) But that 2010 case by itself is insufficient to answer the questions posed by the 2013 Guidelines, and there is almost no help from other cases or statutes. Had we gone to trial, Father and Mother would have advanced evidence and arguments for very different ways to count time and it is uncertain how the judge would have ruled.

Another question was how to calculate support for the new 33-50 percent parenting time category. Father’s income was slightly under $100,000, and Mother’s was about $200,000. If the parenting share was an approximately one third/two thirds split, Father would pay $290/week to Mother. I argued Father was in the new 33-50 percent zone and should benefit from the second cross-calculation.

Here’s where it gets interesting. If Father was in that new zone, we needed to “average” the $290/week sole custodial support award from Father to Mother with the joint custodial award, a $308/week support award from Mother to Father. The literal “average” of $308 and $290 is $299. I argued the “average” should require the use of a negative number for the smaller number, to indicate the difference in direction, following mathematical logic and a belief the intent of the averaging was to effect a perfect compromise. The numbers to be averaged were nearly equal, but in opposite directions, and so I reasoned we should take the average of $308 and -$290, or $9, thus requiring a payment of $9 from Mother to Father.

I contended we should treat the “average” in all cases in a mathematically consistent way, as the true midpoint. When numbers to be averaged are going in the same direction, that is, when the parent with less time also makes more money, and would be the payor under both a joint custody calculation and a sole custodial calculation, the “average” would properly yield a number exactly between those two numbers, a perfect compromise. But in our very different case, a mathematically consistent compromise between my client’s paying $290 and his receiving $308 would be an award to him of $9. That $9 number would be the precise midpoint between the numbers to be averaged if graphed as a positive and a negative number to reflect their opposite directions.

Opposing counsel countered that language in the guidelines suggests the “recipient” is always the parent with more time; furthermore, there is no support at all for my crazy idea ever to use a negative number when calculating the average. The Guidelines state: “The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.” They speak of averaging the base child support paid to the recipient and the shared custody cross calculation paid to the recipient.

Still, if the recipient is always the parent with more time, and we must always use the literal average, then how could we justify using this literal average $299? Furthermore, if someone had to pay $299 and it had to be Father, why would Father then have to pay $9 more than the $290 he would have paid with less parenting time, that is, under a straight one third/two thirds split?

Imagine if the variables had been only slightly different – a real possibility – with numbers to average being exactly equal, $300 to him and $300 to her. The average would then also be $300. So who pays whom? The literal average will properly function in all cases where the putative support numbers go in the same direction, as it would be the exact compromise, equidistant between the two positive numbers. However, it is logical to require use of a negative number for one of the numbers when they represent transfers in opposite directions, to get the number that is similarly the real compromise, the true midpoint between those numbers to be averaged, here (-$300 +300)/2 = 0, and in my actual case, (-$290 + 308)/2 = $9.

In many cases, results would be even more skewed than in my real-life example and the slightly modified hypothetical I just posed, if we merely insisted upon using the literal average without the negative sign, and always required the parent with less time to pay the other. In fact it is in all cases where the parent with less time also has less income that results skew in the wrong direction with such an approach. In the most extreme examples, this literal approach yields the absurd result that the payor would pay more than his/her actual available income! I will demonstrate that next.

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 In Part Seven, I will show those most absurd results of the new formula using a literal "average".

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Statute Construed: No Credit For Time Served!

Today the Massachusetts Supreme Judicial Court just decided, in Holmes v. Holmes (see and view the oral arguments here) that temporary alimony, awarded before final judgment in a divorce action, does not have to be credited toward a calculation of the maximum term of general term alimony.   This means that if temporary alimony is awarded, as it often is, during the pendency of a divorce action, there does not have to be "credit for time served" (to use my own, admittedly imperfect analogy to criminal sentencing) in determining the ultimate award of general term alimony when the divorce is finalized.

I just read the decision, as it was released online today.  I had expected, like my colleague Jonathan Eaton, for the Court to rule differently, or for at least some of the justices to offer a dissenting opinion. I also expected better and more thoughtful analysis in the opinion, and am not at all sure I agree with the conclusions made.

The relevant alimony statutes, as amended by the 2011 alimony reform law that went into effect in 2012, do not make clear the relationship between temporary alimony and general term alimony awards.  The appellant in this case is certainly not the only one who assumed he would get credit for his ¨time served¨paying temporary alimony.   Like it or not, the Court at least answered the question pretty decisively, and now if folks don´t like it -  in the alimony reform movement, for example - they can gather forces to try to amend the statutory provisions yet again.

A big reason why I am not sure I like this decision is the arguably unfair results I am imagining in cases of short-term marriages where the maximum general term alimony would be much shorter in duration than in this case, say two or three years, for example, and so tacking on temporary alimony, during litigation of a year or two or even longer, could very substantially increase the effective length of alimony commitment relative to the length of the marriage. There are also the obvious problems that flow from the incentive this decision may give to alimony recipients to prolong divorce proceedings to increase the total alimony payout period.

For an excellent and much more detailed explanation of the decision, and what it means for family law litigants, see Justin Kelsey´s blog of today.

Meanwhile, at least for now, all you guys and gals who may have to pay alimony, you should know that until the statute is changed again, there's no guaranteed "credit for time served."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines Revised Again

The Massachusetts Trial Court has just announced the new Massachusetts Child Support Guidelines to be in effect for the next four years, beginning August 1 of this year.  Federal IV-D regulations require each state to have uniform child support guidelines that are presumptively correct, and 45 C.F.R. § 302.56 specifically requires each state to review its guidelines at least once every four years.  The new Massachusetts guidelines effective August 1, 2013, are here (prose) and a corresponding worksheet may be found here. The current (still in effect) guidelines worksheet remains at the Massachusetts Department of Revenue's website and should be replaced with the newly revised worksheet when the new guidelines go into effect on August 1.

Following is a summary of the key revisions, as provided in the trial court's press release:

Summary of Key Changes to the Existing Guidelines
The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes.  Some are minor, while others represent new or modified provisions.  The most significant include:

• Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.

• Availability of employment at the attributed income level must be considered in attribution of income cases.

• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.

• Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.

• Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.

• A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.

• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.

• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).

• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The Latest on Gay Marriage - California, Washington and the Nation

Folks interested in gay marriage issues, particularly those living in California, are awaiting the 9th Circuit Court of Appeals' decision, expected to be released today, which will reveal its three-judge panel's opinion on whether Proposition 8 (the ban by voters on gay marriage in the state of California) is constitutional, specifically whether the lower court's opinion against the Proposition will stand.  If the lower court's decision is affirmed, the supporters of the ban plan to appeal to the entire panel of the 9th Circuit and then to the US Supreme Court if necessary.  Check out the AP story, as appears at Boston.com.

And there is yet more news on the West Coast. Law prof Joanna Grossman has another interesting article, this one mainly about the gay marriage legislation just passed by the state senate in the state of Washington, and which is expected to be passed soon by the house and signed by the governor there, and which would make Washington the seventh state (after Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York), along with the District of Columbia, where gay marriage has been created and legalized either by legislative or judicial action.

In Washington, this legislative action is unique, as Grossman points out, in that "it will be the first time, since the beginning of the modern same-sex marriage controversy, that a state legislature has reversed itself, moving from a statutory ban on same-sex marriage to a statutory authorization" and it will have all happened in a very short time. For more about these recent developments in Washington, and for a brief summary of the developments in the recent, nine-year-long history of gay marriage in the United States, see her online article, The Beginning of the End of the Anti-Same-Sex-Marriage Movement .

Grossman's optimism, in believing as she does that "same-sex marriage is an inevitable, eventual reality" is understandable, given this and other recent developments. She explains how the Washington state legislature did a rather quick about-face in favor of gay marriage, and sees that as a sign that views around the country are changing quickly and that "even deeply entrenched opposition may dissipate sooner than we thought." She notes that same-sex marriage bills are working their way through legislatures in other states, including those of New Jersey and Maryland.

I once shared her optimism, but now I have my doubts. Any suggestion that the six, soon-to-be-seven, states, plus the District of Columbia, will quickly grow in number to include most or all of the other 44 (soon-to-be-43) states where gay marriage has not been legalized, is wildly optimistic. It is far too easy for those of us who live in New England and New York (home to all but one of the current same-sex marriage states) to be out of touch with what is going on in the more conservative regions of the South and the Midwest, and indeed the vast expanse of the country. I tend to think we are going to continue to have, for the foreseeable future, a vast majority of states that are, as they have been, consistently and obstinately unfriendly to same-sex marriage, while a very small number of new states warm to the idea.

Gay couples are a very small minority of households, even in Massachusetts. In the more conservative states, where the religious right or at least conservative social values hold sway, the small minority of gay couples and their liberal and libertarian supporters are likely to continue to be drowned out by the louder, and stronger, voices of the more socially conservative majority. If you've read this far, you might find interesting as I did these numerous charts showing the demographics of same-sex couples in the US, derived from the latest (2010) US Census.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Reform Bill Signed Into Law

It's official!  Around 4 PM yesterday, Governor Deval Patrick signed into law the alimony reform bill.  (See my discussion of this in my last post where I link to previous blogs on alimony reform).  The new law goes into effect March 1, 2012.  Go ahead and peruse the complete text of the new law, or check out the well-written summary of the new law provided by Francine Gardikas of Burns & Levinson at their law firm's family law blog, Massachusetts Divorce Law Monitor.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Sweeping Massachusetts Alimony Reform Bill Now Awaits Governor's Signature

At long last, a sweeping alimony reform bill, passed by both houses of the Massachusetts state legislature, has been sent to the Governor's Desk, it was reported on Monday. Governor Patrick has 10 days to sign it, and there is nobody saying that he won't. In fact, I just heard from a reliable source that the Governor will sign it on this coming Monday.

What started long ago as an impassioned struggle has in recent years gathered strength as Massachusetts Alimony Reform, a new organization directed by Steve Hitner, came into being. The Massachusetts Alimony Reform organization came onto the scene with a tenacity, dedication, and persuasiveness that caused many, including opinion makers in the media and in politics, to wake up and pay attention.

A House bill which called for real reform was countered by a Senate bill that was, by contrast, a slight tinkering with the law that would not really have changed or helped much. Fortunately, as support for real reform continued to grow, and political support became apparent, it came to pass that legislators, lawyers, and bar associations all moved in the direction of supporting real reform. Now, with the passage of the final version of the legislation by both houses, real reform has prevailed; in other words, the final version is much closer to the original House bill than to the Senate bill, and it will bring about very substantial, extensive reform. Thus an alimony reform movement which once had only limited vocal support from a handful of family law litigants, legislators and attorneys, eventually gained very broad support - indeed support of seemingly everyone, including many lawyers and bar associations that had previously ignored, dismissed, minimized, or opposed any serious alimony reform efforts.

With the passage of this alimony reform legislation, we will see the law of alimony in Massachusetts at last reflect the social and economic realities of our time. I expect alimony determinations to be much more sensible and predictable, and much fairer as a result, as previously lengthy or even lifelong awards of alimony, many of which were out of all proportion to the length of the preceding marriages or the equities of their respective cases, will become a thing of the past. Although I have a few reservations about one or two provisions of the bill, overall I am very pleased with the legislation and I have no doubt the new law will be a huge improvement over the current law.

I will have more thoughts to express soon. Meanwhile we all await the official word that the Governor has signed this bill. For a brief description of the bill, see Alimony Reform Heads to Governor's Desk, Monday's Boston Business Journal article on this.


Previous Posts on Massachusetts Alimony Reform:

ALIMONY REFORM AND THE BUSINESS OF DIVORCE
OF TWO ALIMONY REFORM BILLS, HOUSE BILL IS FAR BETTER
"TILL DEATH DO US PAY" - MORE ON THE NEED FOR ALIMONY REFORM
EMILY ROONEY DISCUSSES ALIMONY REFORM
MASSACHUSETTS ALIMONY: TIME FOR REFORM?


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Reform and the Business of Divorce

The Boston Business Journal continues to cover the controversy over the competing Massachusetts alimony bills, and in Friday's article by Lisa van der Pool, Dueling alimony bills raise hackles in legal circles, the focus was on the question of whether Senator Cynthia Creem, chair of the Senate's Judiciary Committee, has a "conflict of interest" on account of her sponsorship of the alimony reform bill being heard by her committee, because she is also practicing divorce law in Boston.

Many in the Massachusetts Alimony Reform organization have voiced their belief that she has a conflict of interest. In the article, I was among the quoted legal observers who fail to find any conflict of interest here. And that is so even though I do not support Cynthia Creem's Senate bill, but support instead the much more comprehensive reforms of the House bill. As often happens in the world of family law litigants, logic and reason have become victims to emotion. And once again, I have gone on record to call it like I see it, only to insure I will probably please no one.

It is hardly shocking to find lawyers as legislators, and it is quite normal for them to take up, and draft, legislation within their own areas of expertise. Divorce lawyers such as Sen. Creem regularly take cases involving clients on both sides of alimony disputes, and will inevitably have clients who benefit, and others who will not, from any change to the law. That is true for her, and that is also true for me. We simply have different opinions as to what the law should be.

The argument of those who think they see a "conflict of interest" (although they mostly do not really understand the concept) goes something like this: Divorce and family law practices, or at least certain practices such as that of Senator Creem, benefit from preserving the status quo, and/or encouraging more, rather than less, litigation.

Any real alimony reform - the argument goes - such as that which would result from enactment of the House bill, would inevitably lead to less litigation, while the enactment of the Senate bill would either fail to reduce litigation, or might even increase it, as the Senate bill would only add durational language, but without any real guidance, thus leaving extremely vague the legal standard for determining alimony awards, and thus continuing to confer upon judges overly broad discretion that would lead to more disputes and more litigation. Lawyers in general, and supposedly rich divorce lawyers in particular, would thus continue to reap huge financial benefits from this vague alimony standard.

But do you know what? The only parts of that argument which are not obviously specious are at their very best merely speculative, and the available evidence might more readily support a quite contrary thesis: that is, that our very vague, quite unpredictable, and often unreasonably high and long, alimony obligations may be partly responsible for the fact that we have had a declining rate of marriage in recent years (interestingly, this particular point has indeed been made by the Alimony Reform Movement itself), and also for the fact that we have a very low rate of divorce relative to other states.

Indeed, the only studies of which I am aware point out that New England in general, and Massachusetts in particular, have the lowest divorce rates in the nation. (See the end of my earlier post on divorce and baseball for links on this issue).

Could it be that draconian, unpredictable, seemingly dreadful divorce laws have contributed to preserving many marriages? Here, I'm reminded of the male joke about not getting divorced because "it's cheaper to keep her." Also might it be possible that these supposedly bad laws prevent many who would otherwise eventually divorce from marrying in the first place? And is it so bad to have laws that make marriage a serious commitment, with very serious consequences? Indeed, that is how marriage used to be in this country before the advent of no-fault divorce. Funny, but some of the conservative, male critics of the current family law system are also the same ones who pine for those more traditional times.

Let me be clear. I believe the current alimony law in Massachusetts is in need of reform, because it too often leads to absurdly unfair results, as it fails to compel judges to limit alimony in the way most people today believe it should be limited, and in the way current economic and social realities suggest it should be limited. However, I am not at all sure that either bill under consideration would help or hurt lawyers in the modestly paid field of family law.

Many of the big problems with current alimony law in Massachusetts relate to the higher economic class of divorcing couples, who are more likely to be caught up in fights with opponents who have considerable assets and earnings, and who are therefore able to pursue "money is no object" battles in court. When the law is too vague, as I do believe it is, there is more at stake in such disputes, and wealthier individuals often believe, however wrongly, that they have no choice but to hire the most expensive, high-overhead law firms to fight spouses who have hired other expensive, high-overhead law firms, all to determine how much will be paid, and for how long, in spousal support.

If I had to guess, I would predict that the passing of the House bill, or any such extensive reform bill limiting alimony, might eventually lead people to marry more often, and earlier, and lead more already married people to get out of marriage when things go wrong; less cumbersome alimony obligations would be less of an impediment both to divorce and to marriage in the first place.

I imagine that with more reasonable alimony laws, we could see higher marriage rates and higher divorce rates, like those that currently exist for example in the state of Georgia, and other "red" states, where it is easier and less costly for the higher-earning spouse to get divorced (and by "costly" here I am referring to the total economic costs in a broad sense, not simply the narrow costs of paying legal fees). Perhaps only the nature, but not the size, of family law practice would thus change, as divorce lawyers would have more clients, but would also spend less time, and bill less, on each individual case; furthermore, high income and high conflict cases would likely account for a smaller percentage of client caseloads.

But all of this is speculation. Would the whole family law business shrink or grow with alimony reform? Who knows? Even if we could answer this, it is really the wrong question.

We really should be debating what the appropriate spousal support obligations of divorcing parties should be, period, rather than making speculative arguments about how different laws might affect a small sector of the legal services industry. Our alimony law should reflect what our community believes those obligations should be, and should reflect current economic and social realities. That is what is important.

The reason this misguided "conflict of interest" argument has gotten any traction is that angry individuals hate lawyers and judges, and not just the flawed law and legal system of which they are a part, and these guys are venting (for more on this, see my last post on this blog). It has all become personal.

By the way, if you're not already exhausted after reading this ridiculously long blog, you can find more level-headed, interesting, and even funny, comments on the issue of alimony reform in Massachusetts at Stephen McDonough's blog.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Of Two Alimony Reform Bills, House Bill is Far Better

There are two competing alimony reform bills currently pending in the Massachusetts legislature: Senate Bill 1616 and House Bill 1785. The Senate bill, backed by influential members of the Boston Bar Association, essentially would preserve the status quo. It would merely add language to the statute so as to give judges the explicit ability to set a duration for alimony - i.e. to set a term of years, depending on the circumstances.

The Senate bill would indeed improve current alimony law in this limited way. But it would do far too little. In fact, the Senate bill would not be sufficient to bring Massachusetts out of the realm of the absurd. Even with the passage of this modest single reform in the Senate bill, Massachusetts would remain way outside the reasonable norms for alimony, as reflected by the laws in almost every - if not every single other - state in this country.

The House bill, on the other hand, would effect real reform that would bring Massachusetts alimony law into much closer alignment with the alimony law of other states, as it more closely reflects current conventional wisdom on alimony. The House bill would require alimony awards to reflect current economic and social realities. Thus it would be much less likely that outrageous alimony awards, which lead to illogical and unfair economic results, would continue to be regularly negotiated and ordered in our family courts.

The House bill is much more intelligent, reasoned, and has the support of the Massachusetts Alimony Reform organization. However, unlike the Senate bill, which is now backed by the Boston Bar Association, the much more sensible House bill has a broad base of support beyond the most directly affected interest groups - that is, both those interest groups that have been formed by opponents of the current law, and associations of attorneys who would be more inclined to preserve the status quo. And that is why House Bill 1785 is already cosponsored by a very diverse group of 72 legislators, "liberal" as well as "conservative."

Please read both bills (see links above), and tell your House and Senate representatives which bill you favor. For more on this, see Bar association wades into divorce law spat - Boston Business Journal.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

"Till Death Do Us Pay" - More on the Need for Alimony Reform

Finally, a little slice of la vida real in our Massachusetts family court system: Till Death Do Us Pay - Boston Magazine.

I'm encouraged to see such critical words from a local media source, in this case Boston Magazine. You definitely will not get such truth from the Boston Globe. And what a shame that is, as the Boston Globe is still the best newspaper we have in this state. Yet, by its gross negligence and incompetence in its reporting in the area of family law, the Boston Globe continues to hold back family law progress, even though it, together with its parent The New York Times Company, had earlier been so instrumental in pushing forward progress in the gay rights and gay marriage arena.

This is definitely a must-read article for anyone interested in the crazy world of alimony law in Massachusetts. I've written about this here before. Our archaic alimony law in Massachusetts has created a number of family law problems that should have been solved long ago. I do hope that reasonable heads will eventually prevail here, and that there will be a complete, extensive overhaul of our absurd alimony law and accompanying practices.

This article, though not perfect, provides a penetrating look into a system in great need of common sense overhaul, in this state which claims to be progressive, but is actually only selectively so. And when I say that I mean a system much broader than merely that which sustains a ridiculously outdated alimony system, but the entire family law system which is backward and unfair in so many other respects.

It is way past time that our state treated fathers and exhusbands and their children, along with all the various family units of which they are a part, with the same level of dignity as gay and lesbian individuals and female-headed households. Until that happens, Massachusetts will continue to be the oddball state, where progressive policies in favor of gay and lesbian couples (policies about which I believe we should be very proud) stand in stark contrast to backwards, archaic, protectionist, sexist policies that promote traditional family structures and female dependency in heterosexual relationships over independence, equality and justice.

And when I say policies, I mean not only laws - both statutes and rulings by our appellate courts - but also practices and other rules, written and unwritten, which continue to be perpetuated by the family law establishment.

Please read the article.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

A Fool for a Client? More on DIY Divorce

Now it is often said that he who represents himself has a fool for a client. But is that always true? When something very important is at stake, the answer is usually yes.

However, I was just quoted in today's Boston Globe, by relationship columnist Meredith Goldstein, in her short piece DIY divorce: Is it a good idea? - The Boston Globe. I appear in the article as the attorney who surprised the reporter by favoring do it yourself (DIY) divorce in some cases. Unfortunately, given the shortness of the article, my view that most divorces require legal representation, and that DIY divorces are only advisable, or even possible, in a limited number cases where there is really little in dispute, probably did not come through clearly enough. But the important counterpoint was provided by Attorney Laurie Israel, my friend from Brookline. Of course I think there are important truths in the comments by both of us.

If you're interested in the subject, see my previous post Massachusetts Divorce & Family Law Blog: NOLO, Its New Divorce Blog, and Do It Yourself Divorce and also see the Massachusetts Trial Court Law Library's blog post from back in January, discussing and linking to the Massachusetts Supreme Judicial Court's recent report on self-represented litigants: Massachusetts Law Updates: Self-Represented Litigants Report.

The fact is many people are taking their divorces, and family law representation, into their own hands, whether we like it or not. As a result our court system is reacting. Eventually, perhaps, there will be more unbundling of legal services, after the current experimentation with such unbundling of legal services in a few counties in Massachusetts has been sufficiently tested so that the results will give a greater degree of comfort to the judges, lawyers and clients who are trying this out, and consequently also to those of us who have not yet tried this out.

I do not believe one size fits all.

The longer I practice, and the more people I see, the more I am convinced that some people need no lawyers, while others should use a mediator, others could make very brief and efficient use of attorneys outside of court (unbundled legal services), others would be wise to choose collaborative lawyers, and still others should use more traditional divorce lawyers, and yes, sometimes even very aggressive trial lawyers who will have to take their cases all the way to trial.

I do imagine that some day it will not seem odd to find other trial lawyers, like me, who can openly acknowledge that many people should in fact handle their divorces on their own, or with minimal help from a mediator or a few attorneys outside of court.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Alimony: Time for Reform?

In yesterday's Boston Globe appeared an op-ed article by novelist Elizabeth Benedict, critical of the Massachusetts alimony law and application of that law by courts in this state: Elizabeth Benedict: Boston Globe Op-Ed: The chilling effect of state's divorce laws. I actually know Elizabeth Benedict, and as one of the lawyers she talked to before writing that article, I must say that I welcome her criticism, even though I believe she may be, as I have told her, exaggerating the extent of the problem she sees.

Her problem is mostly with lifetime alimony awards and with what she rightly sees as the inconsistent, unfair application of alimony law. Of course, I have no doubt that the cases she discusses are real, and it only takes one bad experience in family court for any one person to be turned off and disillusioned with the whole process.

The main point that should be taken away from her article, in my opinion, is that the law on alimony is so vague as to permit a huge divergence of results, from one case to another. I would add that these results often depend on factors that should not be important and determinative: they are factors primarily related to the quality and experience of the judge, rather than factors actually relating to the facts of the individual cases.

In my experience as an attorney, I have been able to end lifetime alimony awards, as lawyer for men in each case, in every case where it was justified and where my clients and I tried to do so. However, in those cases, my male clients did not even come to me to try to eliminate the alimony until their children were emancipated and their exwives were working fulltime and earning as much as, or more than, they were. In other words, we had very strong cases to end alimony. And yet, although the cases did not require trial, they were at first hotly litigated cases, and they were hardly the walks in the park that they should have been.

I am happy to see Elizabeth Benedict join other disgruntled second wives and girlfriends in trying to help men to right this wrong in Massachusetts family law, particularly by supporting the enactment of HR 1567, a relatively unambitious, but sensible bill that, as Benedict notes in her piece, has been given an unceremonious legislative death as the bill was quietly committed to further "study."

We have long needed better guidance and clearer laws on alimony - and in the related area of child support as well, I hasten to add - that cover the needs of today's divorcing and separating parents and spouses. The child support guidelines have numerous flaws and do not cover those with combined incomes of $135,000 or more, exactly the group of people, interestingly enough, who are most likely to hire lawyers for their court cases. Such a situation leads intelligent people like Elizabeth Benedict to understandable cynicism about the legal process, and about lawyers themselves. And so Elizabeth Benedict states as follows:

The Massachusetts and Boston Bar Associations have created a task force to study problems stemming from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They may eventually support new guidelines for judges, not new legislation, which would clarify and simplify. They prefer ambiguity and case law, which produce more billable hours.

The crux of the problem is there is no agreement on a formula, or a uniform set of guidelines even, for alimony, and the law of alimony is essentially the same long list of statutory factors that are supposed to be taken into account in determining the division of assets upon divorce (M.G.L. ch.208, section 34). See the Massachusetts divorce statute here.

One former judge, Judge Ginsburg, formerly of the Middlesex Division of the Probate and Family Court, who in fact created his own alimony formula (called "the Ginsburg formula") which he, and some others, have used on an informal basis, especially back when he was still a judge, wrote an article, back in 1997, which is surprisingly still very relevant today: "The Place of Alimony in the Scheme of Things," Edward M. Ginsburg, Massachusetts Family Law Journal, Vol 14, No. 5 (January 1997). Sorry, but I can't find an online link to that article. In that article, then-Judge Ginsburg pointed out that there is precious little in the way of guidance in how to deal with different kinds of cases (short-term, mid-term, long-term marriages) and how to structure awards, both in terms of amount and duration. Well, not much has changed in the past eleven years, in statutory or case law, since Judge Ginsburg wrote his article, to alter this basic reality.

And what little new case law we do have has not remedied this problem. As pointed out by Massachusetts Attorney Peter Gossels in this Massachusetts Lawyers weekly article from February 5, 2007, the law as it still stands permits "predator spouses" to enter into short-term, childless marriages, and extract huge sums of money through alimony. See the Gossels article, both for another extreme example of how the vague alimony law can lead to an unfair result, and for a great discussion about some of the problems and limitations created by the case law on alimony.

However, as a practicing lawyer, I do believe there has been a positive change - despite the continuing existence of some rather unfair case results - in the way most judges are applying the broad, vague law. I believe judges over the past ten years have become far less likely to award alimony in cases where alimony is undeserved, they have been increasingly likely to expect former wives to work, or to go back to work, and they have become increasingly likely to apply the gender-neutral laws in a gender-neutral way. This positive change in the way that law has been applied, in fact, is one advantage, perhaps, of the law being as vague as it is. But all is not as it should be. Not yet. And I do believe there should be better guidance, and it should be statutory.

As long as judges have such wide discretion, with these vague laws in effect and in the absence of clear guidelines for different types of cases, judges will continue to be free to consider all the relevant statutory factors on a case by case basis. The question of whether we want the legislature to improve the law of alimony will then come down to whether we want to trust each individual judge to make the right decision when each one has such extremely wide discretion in making findings.

Although I trust most judges to try to do the right thing most of the time, I do believe they all need clearer laws and better guidance, for the sake of consistency and fairness.

Finally, Elizabeth Benedict's comments, both directly to me, and in this op-ed piece she wrote, give me hope for the future. I am encouraged to see such talented, intelligent, accomplished women recognizing the injustices often faced by men in family court. Benedict joins the ranks of another great writer, formerly a regular columnist at the Boston Globe, Cathy Young, about whom I have spoken favorably several times in this blog before.

Also, in this respect Benedict joins another acquaintance of mine, Iris Tanner, a cabaret singer, who long ago gave me a copy of her CD "Fresh Cut Iris" when I could not attend her appearance many years ago at Jimmy Tingle's Comedy Club, where she sang her original song Don't Get Married in Massachusetts (If You're Male).

It's a hilarious song by a woman who admitted in introducing the song on stage that she had been inspired to write it after having several boyfriends who had gone through divorce in Massachusetts. Even if you don't download the song (and you can do so - from my link above), the following sample of its lyrics should give you a laugh or two:

Matrimony may be great,
But there's a certain state,
Where a wedding's bad for your financial health,
Where if a marriage doesn't work,
The man will always be the jerk,
And lucky ladies gather in the wealth.

Where the judge's sacred duty
Is to give the wife her booty,
And do his best to drain the husband dry.
Though I know it's hard to swallow,
There are guidelines they must follow,
That will zap you if your chromosomes are Y.

If you're male,
Don't get married
In Massachusetts.
You'll only end up broke
And land in jail.
....

I should point out that, despite its women- and mother-friendly reputation and despite its sometimes-heard nickname "Planet Mommy," Massachusetts is hardly alone with this alimony problem. Other states are considering reforming their alimony laws to reflect the current economic and social realities. For a good discussion of this national trend, also mentioning the recent efforts in Massachusetts, see States Challenge Traditional Alimony, a February 15, 2008 article by Tresa Baldas in the National Law Journal.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Indigent Parents In CHINS Cases Now Get Free Attorneys

The Massachusetts Supreme Judicial Court (SJC) recently looked at two CHINS (children in need of services) cases, one from Worcester County and the other from Essex County, in both of which a juvenile court judge had denied a mother legal right to court-appointed counsel. The SJC ruling in this consolidated case In the Matter of Hilary has now established that parents in these cases do indeed have a right to be heard, may have an attorney representing them in these proceedings, and further have a right to an appointed attorney if they cannot afford one.

For more information about the case, see the February 11, 2008 article by David Frank in the Massachusetts Lawyers Weekly, SJC gives parents right to counsel in CHINS cases.

About this expanded access to justice, the Boston Globe, in an editorial from February 14, A Break For Desperate Parents opined: "Providing lawyers for poor parents could cost roughly $1 million to $2 million a year, according to Mike Dsida, a deputy chief counsel for the state's Committee for Public Counsel Services. This is only fair. Parents accused of abusing their children already have the right to a lawyer if they risk losing custody. Parents in CHINS cases should also have that right."

I completely agree with this recent SJC ruling, which expands in a reasonable way access to justice to parents in CHINS cases, and with its analysis and rationale. I similarly agree with the Boston Globe's commentary.

Furthermore, I believe that this case, and its basic rationale, lend great support to my longstanding position that the SJC should also require the appointment of lawyers to indigent individuals in district courts and family courts when and where they are challenging restraining orders, at the very least when these individuals have children in their home and they risk losing custody. See my previous post touching on this issue here.

The specific issue of access to justice for individuals defending against restraining orders has not yet been before the SJC. I hope that important issue will also be before it at some point soon, and the SJC will fairly and appropriately continue to expand access to justice in a sensible way, as it has done in this recent CHINS case, for which it should be applauded.

Excerpts from IN THE MATTER OF HILARY:

"The issue of first impression that we decide in these consolidated cases from the Worcester County and Essex County Divisions of the Juvenile Court Department, which are here on a reservation and report, without decision, from a single justice of this court, is whether, after a child is adjudicated a child in need of services (CHINS), a parent is entitled to counsel at the dispositional phase of the proceeding, if custody of the child is at issue. G.L. c. 119, § 39G. Two Juvenile Court judges denied, among other things, the indigent mothers' requests for such court-appointed counsel. Because we conclude that, pursuant to G.L. c. 119, § 29, parents are entitled to counsel at the dispositional phase of a CHINS proceeding if the judge is considering awarding custody to the Department of Social Services (department), and have a concomitant right to intervene in the case, see note 18, infra, we reverse the decision of the Worcester County Juvenile Court judge and remand that case for further action consistent with this opinion.

....

For the reasons set forth above, we conclude that, pursuant to G.L. c. 119, § 29, after a child is adjudicated a child in need of services, a parent is entitled to counsel at the dispositional phase of the proceeding if custody of the child could be granted to the department. We reverse the decision of the Worcester County Division of the Juvenile Court Department and remand the case for further proceedings consistent with this opinion.So ordered. "

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Massachusetts Supreme Judicial Court Oral Arguments Available

The Massachusetts Supreme Judicial Court (SJC) has webcasts of oral arguments previously broadcast, from September of 2005 to date, at the following Suffolk University Law School SJC Webcast Archive. As stated on the website: "Here you may review all Supreme Judicial Court arguments that have already been broadcast. You may locate oral arguments by date, case title or docket number. Archives of each argument should be available within four business days of the court proceedings."

Hence, now, available to all free of charge online, are the following:
*webcasts of all oral arguments at the SJC since September 2005,
and as mentioned by me in earlier posts:
*briefs in SJC cases, and
*appellate court decisions, both of the SJC and the intermediate appellate court, the Court of Appeals, for the past twenty years.

For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.

Same-Sex Divorce Challenges the Legal System, Washington Post Reports

The Washington Post just published the following article, Same-Sex Divorce Challenges the Legal System - washingtonpost.com, by Dafna Linzer about the peculiar problems same-sex couples face, both here in Massachusetts and elsewhere, when they split. Given the topic, the article naturally had a big focus on Massachusetts, and it includes quotes from interviews of family law specialists here who do a lot of work with gay and lesbian clients.

The article points out some of the important ways in which same-sex married couples face different legal problems and challenges than traditional (heterosexual) married couples, even though the Massachusetts Supreme Judicial Court's equal protection ruling in Goodridge et al. v. Department of Public Health et al., aimed to equalize treatment of same-sex couples and traditional couples. This just goes to show that no matter how hard one state's supreme court may try, there are many things standing in the way of equal treatment, including federal law, other states' laws, and biology itself.

Thus, gay and lesbian couples should not assume that simply by getting married they automatically have all of the exact rights and responsibilities of heterosexual married couples, even here in Massachusetts. It's not exactly true. For example, in a gay or lesbian marriage only one parent can be the biological parent, and nonbiological parents in such marriages will not automatically have the same parental rights and responsibilities as the partners in a traditional marriage - to effect such similar rights and responsibilities, such couples will need to adopt.

There are also some serious differences between the financial treatment, upon divorce, of couples married as same-sex couples and those married as heterosexual couples. And of course this all brings to mind the Golden Rule: When in doubt, see a lawyer first!

"When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I'm their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

'One of the benefits of marriage is divorce,' said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. 'But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience....'


For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.

Massachusetts Appellate Cases of Last Twenty Years Now Free Online

The Massachusetts Trial Court Law Libraries blog, Massachusetts Law Updates, reported here today that the Massachusetts Trial Court Law Libraries now provide online, for free to all, each and every Massachusetts appellate case, from 1986-1996, here at Masscases.com, in supplement to the effort of Massachusetts Lawyers Weekly, which already provides all Massachusetts appellate cases from 1997 to date (also free to all) on its website here. As a result, now all of the past twenty years of Massachusetts appellate cases, both Court of Appeals and Supreme Judicial Court opinions, are easily accessible for free to all online at these two websites.

"Late last summer, we surveyed our users to find out what legal information you would find most useful online. Over 68% of you wanted Massachusetts cases from the past 20 years. Cases from 1997 to date are already available on the web from Lawyers' Weekly, so over the past five months, the seventeen Trial Court Law Libraries have worked together to prepare a group of older Mass. cases to mount on the web. We are pleased to announce the availability of all Supreme Judicial Court and Mass. Appeals Court cases from 1986-1996 at http://masscases.com. Cases are accessible by citation, case name, or through a Google custom search on the site. The collection also includes hundreds of the most-cited older Mass. cases...."


For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Joanna Grossman on Rhode Island Supreme Court's Denial of Same-Sex Divorce

For an excellent article critiquing the majority decision of the Rhode Island Supreme Court, in Chambers v. Ormiston, which ruled that a lesbian couple, married in Massachusetts, cannot get a divorce in Rhode Island's Family Court, for lack of jurisdiction, see Hofstra Law Professor Joanna Grossman's findlaw article of today, "The Rhode Island Supreme Court Denies a Divorce to a Same-Sex Couple That Was Married in Massachusetts: Why This Case Was Wrongly Decided" by Joanna Grossman.

As Grossman explains, state courts are obliged, for the purpose of considering claims for divorce, to recognize couples joined in marriage under other state's laws, even though state laws on marriage and legal restrictions and requirements for marriage differ greatly among the states. I basically agree with Grossman's points, and also question the Rhode Island Supreme Court majority's reasoning on the same basis. I think the dissenters had the better view, but read the majority and dissenting opinions and decide for yourself.

I disagree with this Rhode Island ruling, even though I also recognize problems with the reasoning of Goodridge et al. v. Department of Public Health et al., the Massachusetts Supreme Judicial Court decision which established gay or same-sex marriage in Massachusetts. (Despite my issues with the reasoning in Goodridge, I do, however, celebrate the resulting expansion of marriage to include gay and lesbian marriage, which I think has been a good thing, for gay and straight alike.)

But whatever you may think about the Massachusetts case establishing same-sex marriage, you must realize that it is this very Massachusetts decision that has created the current conflict of laws issue, by expanding greatly the definition of "marriage" in Massachusetts in a way that has had, and will continue to have, an effect far beyond the borders of the Bay State. It remains to be seen how exactly, and to what extent, gay marriage - and divorce - will become a part of the life of the rest of the nation. This Rhode Island case hardly provides an answer to that question, or any end to such jurisdictional questions. This story is far from over.

For more on this Rhode Island case, including links to my previous posts, news articles from the Providence Journal, and to legal briefs filed in the case, see my most recent post, Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island.

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island

The Rhode Island Supreme Court has just ruled that the Rhode Island courts may not grant a divorce to a lesbian couple married as a same-sex couple in Massachusetts, but now living in Rhode Island (see below). The high court found that its state's Family Court has no jurisdiction to grant the divorce, based on the fact that Rhode Island does not itself recognize this "same-sex marriage" as a "marriage" and the couple would not have been able to marry in Rhode Island. If these two women want a divorce to be issued by a court, they may have to come back to Massachusetts, where our highest court, in 2003, established the right to marriage by same-sex partners in Goodridge et al. v. Department of Public Health et al. (2003 Massachusetts Supreme Judicial Court Opinion).

For more information, in my previous posts on this case, see Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island? and Amici Briefs in the Rhode Island Case.


"R.I. high court rules against divorce in same-sex marriages," The Providence Journal, by Edward Fitzpatrick, December 8, 2007:

PROVIDENCE — In a 3 to 2 decision, the state Supreme Court yesterday ruled that two Providence women who married in Massachusetts cannot get divorced in Rhode Island.

The court’s majority concluded that Family Court lacks jurisdiction to grant a divorce to Margaret R. Chambers and Cassandra B. Ormiston because under the law that lets Family Court handle divorces, the word 'marriage' means just one thing: the union of a man and a woman.

"It is possible that today’s members of the General Assembly might have an understanding of the term ‘marriage’ that differs from the understanding of those legislators who enacted [that law] in 1961, but our role is to interpret what was enacted and not to speculate as to what some other not-yet-enacted statute might say or mean," Justice William P. Robinson III wrote for the majority.

"There is absolutely no reason to believe that, when the act creating the Family Court became law in 1961, the legislators understood the word marriage to refer to any state other than ‘the state of being united to a person of the opposite sex,’” Robinson wrote, citing definitions of marriage from 1961 dictionaries.

Supreme Court Chief Justice Frank J. Williams and Justice Francis X. Flaherty joined Robinson in the majority while Justices Paul A. Suttell and Maureen McKenna Goldberg dissented.

Suttell said he and Goldberg saw no need to consult 46-year-old dictionaries to answer the legal question before the court. “A brief survey of current dictionaries reveals that the same definition of the word ‘marriage’ predominates today as it did when the Family Court Act was enacted in 1961,” he wrote. “Nevertheless, the majority, in our opinion, overlooks the one central and unassailable fact upon which the certified question is predicated,” Suttell wrote. “On May 26, 2004, Ms. Chambers and Ms. Ormiston were lawfully married under the laws of the Commonwealth of Massachusetts.” And Family Court can grant divorces whether or not a marriage is considered legally valid in Rhode Island, he said....

Legal Briefs of Supreme Judicial Court Cases Now Available on the Internet

As the Massachusetts Bar Association reports, the Massachusetts Supreme Judicial Court is now making legal briefs filed in cases filed with the full court easily accessible to the public on the internet.

Massachusetts Bar Association : Legal briefs of SJC cases available on court Web site: "Legal briefs of SJC cases available on court Web site As part of a continuing effort to make the court system more easily accessible to the public, the Supreme Judicial Court is now providing legal briefs filed with the full Court available on the Internet at www.ma-appellatecourts.org or at www.mass.gov/sjc. Lawyers, law students, or individuals who have an interest in particular cases can readily obtain the attorneys’ legal briefs, which are filed in the Supreme Judicial Court’s Clerk’s Office for the Commonwealth. Previously, these materials could only be obtained in hard copies by individuals requesting them in person in the Clerk’s Office. The briefs are scanned and posted with the case docket on the Court’s website about a month in advance of the Court’s scheduled sitting. The Supreme Judicial Court Clerk’s Office for the Commonwealth maintains the court records, docket, and court calendar for the cases heard by the seven Justices of the Court. Approximately 200 cases are decided by the full Court each year from September through May. In addition, single justices hear cases throughout the year. "

Natural Parents, De Facto Parents, Psychological Parents, and Confusion in the Courts

Natural parents get custody of their children if they are fit parents. It's a pretty simple rule, and it is a basic rule of family law. But sometimes even the judges get confused on this one.

I just read the post West Virginia Mother Wins Back Legal Custody From … Babysitters in the Florida Divorce Law Blog, which described an unusual West Virginia Supreme Court case (for more, see the West Virginia Record article Supreme Court restores full custody to mother from babysitters) in which, remarkably, two trial judges and an intermediate appellate court got confused on this one, and gave custody to babysitters over the natural mother, until the West Virginia Supreme Court reversed these erroneous decisions of the lower courts. As Janet Langjahr of the Florida Divorce Blog aptly put it:

"It’s a very strange case. The kind that is hard to believe had to go up to the highest court in the state of West Virginia to get straightened out … any court at all really. It was not disputed that the mother here was fit (or at least not seriously disputed). But two West Virginia judges actually ruled that a biological mother had to share custody with distant relatives of her child, who had acted as babysitters for the child. And an intermediate level appellate court upheld those rulings. (In fact, at one point in the case, the sitters briefly had primary physical custody and the mother had visitation!) The judges found the relatives to be coparents - and therefore ordered shared parenting and rotating custody (where the child “bounces” from home to home) - before the mother could relocate to another state. On the second appeal, the Supreme Court of West Virginia reversed the courts below, ruling that the relatives had no standing to intervene in the relocation case and ordering full custody restored to the natural mother. The high court affirmed that a natural parent has the right of custody unless that parent is unfit or willfully gave up custody."

This West Virginia babysitters case reminded me of a very recent case in Massachusetts, in which a very thoughtful and well-meaning judge here was similarly reversed by the Massachusetts Court of Appeals when he created a "co-guardianship" between both the natural father, whom the judge had not found to be unfit, and the maternal aunt and uncle, in its October 29, 2007 decision in the Guardianship of Estelle (decision available at http://www.socialaw.com/slip.htm?cid=17588&sid=119), which begins:

"The biological father of the minor child, Estelle, appeals from a judgment of the Probate and Family Court granting a guardianship of the child to the child's maternal uncle and aunt, with the father appointed as coguardian. The father asserts that, given the judge's finding that he is not an unfit parent, he is entitled to outright custody of the child without the limitations inherent in the vesting of guardianship authority in others. In support of the judgment, the uncle and aunt argue that they had parented the child for seven years by the time of trial; she is happy, well adjusted and developing normally; she visits regularly with her father; and a precipitous transfer of custody would be harmful to her.We credit the judge with a sensitive attempt to sort out the complexities of the case and arrive at a compromise that was in the child's best interests. His solution, however, cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others...."

When natural parents are not together, that is, if they are separated or divorced, they may fight between themselves over custody, and then the issue is what is in the best interests of the children. But if there is only one natural parent available to have custody, and he or she is fighting with a non-parent, whether an aunt, uncle, grandparent, other relative, or non-relative, the question becomes: Is this natural parent fit? If so, that parent gets custody, period. Judges occasionally are confused about this basic principle of parental rights. They are so accustomed to looking at the facts of a given situation and trying to do what they think is right, because in their normal course of inquiry, in the typical kind of case they have to resolve, between two natural parents, they apply the "best interests of the child" standard, which generally allows them to place the child or children in the best of the two home environments presented to them.

As the old adage goes, tough cases make bad law. Appellate courts are supposed to prevent "tough cases" from making "bad law." These two recent cases, one from here in Massachusetts, and one from West Virginia, illustrate this very well. Appellate courts in each case had to prevent seemingly tough cases from making bad law, by reaffirming this basic principle of parental rights, which sometimes does indeed conflict with what a fact finder may find to be in the best interests of children. Parental rights sometimes trump the perceived best interests of the children, because the legal standard of parental fitness is really pretty low. If any natural parent is minimally fit, the law says he or she should win custody over a non-parent, even if the court in its fact-finding role determines that the other would-be guardian, whether a "psychological parent" or a "de facto parent" (one who may actually have truly parented the children while the minimally fit parent has been on the sidelines, and one who has in fact created a strong parental bond with the children) would be a far better caretaker of the children than the natural parent. Doesn't always seem fair or right in some situations, but that's the law. Natural parents rule. And it makes sense.

Otherwise, if we expanded the use of the "best interests of the child" standard so as to put non-parents more on an equal footing with natural parents, we would be allowing the tough cases to create "bad law" - that is, a "bad law" that would make custody contests, already an unfortunate but necessary intrusion of the state into family life, more of a free for all. Such a bad law would lead to a situation in which parental rights and authority - already greatly eroded over the years by the increasing involvement of the government and other third-parties in the lives of children and by other social developments - would be further weakened. And this kind of further weakening of parental rights is something our society and our US Supreme Court (e.g., most recently, in the Troxel v. Granville grandparent visitation case), have thus far shown they will not permit.