Violence Against Women Act

His voice thick with emotion, Vice President Joe Biden on Wednesday again toured the National Domestic Violence Hotline he helped create, calling victims of such abuse "prisoners in plain sight."

Housed in an unmarked building in suburban Austin, the hotline was founded in 1996, two years after Congress approved the federal Violence Against Women Act, which Biden sponsored while still a senator from Delaware. (abcnews.com)

The violence against women act provides protection for women against all forms of domestic violence. It provided stiffer penalties and resources to approach the issue of domestic violence from an all encompassing perspective. 

The 2013 re-authorization expanded the act to allow for protection of same sex victims. October was domestic violence awareness month and I thought a little bit of background information might be fitting. 

Please see this link for further information:http://en.wikipedia.org/wiki/Violence_Against_Women_Act

To come in future blogs are some startling statistics on domestic violence

Changes to Massachusetts Child Support Guidelines

Today is the day that the new Child Support Guidelines take effect in Massachusetts. These new guidelines include some changes that are important to know about if you have a legal issue related to the amount child support that you pay, or the amount that you receive as a parent.

The Child Support Guidelines help judges to figure out how much support should ordered, on a temporary or permanent basis. The new guidelines seek to improve this calculation method, by taking into consideration the economic realities families are dealing with. One factor that goes into the calculation is income. Under the new guidelines, income that a party receives from means tested benefits (SSI, TAFDC, SNAP, etc.) is not included in the calculation.

Sometimes, the court “attributes” income to one party who may be intentionally unemployed or only employed part-time. This is income not actually earned, but which the parent could earn. Under the new guidelines, availability of employment must be considered when deciding the issue of attributed income. Parties alleging attributed income must show that the there are available jobs out there, at that income level, which the parent is choosing not to take. The guidelines also note that the court has discretion to consider all, part, or none of the income that a parent obtains by working a second job or overtime.

The new guidelines especially affect parents whose combined income exceeds $250,000. They also affect those who have less than equal (50/50) parenting time, but more than two thirds/one third. This way, parents who have their kids for a significant amount of time and share in many of the expenditures don’t have to pay such a high amount in support.

Overall, it seems that many calculations under the new guidelines will result in slightly lower support payments. This is not always going to be the case, but the general attitude over the past few years has centered around the notion that the guidelines were producing payment amounts that were more than many parents’ could afford.

You can find additional information on the Massachusetts Court System’s website: http://www.mass.gov/courts/childsupport/

DISCLAIMER: This site and all information on it is intended for informational purposes only, and is NOT LEGAL ADVICE. You should seek competent legal representation on any legal matter.

I have been working with triangle and EPIC on a new logo for handicapped individuals. It is beginning to get some traction. Check out the news report here. http://abcnews.go.com/GMA/video/york-city-imagines-handicapped-sign-19304095.

Differences Between Mediation and Conciliation

One of the issues that crops up frequently when I am advising potential clients of their legal options is the availability of ADR or alternative dispute resolution. ADR can offer a potential or current client an alternate path to the cost, time, and stress of traditional litigation.

             As a trained mediator in addition to my work as an attorney, I feel that with the right client and set of circumstances, mediation can be a far more quick and painless way to settle disputes in family law than traditional litigation. Any ADR process will require good faith, engagement and effort on the part of both parties to move towards a resolution. It is, at its heart, a cooperative process.

            Today I wanted to discuss two different types of ADR: mediation and conciliation. Both involve sitting down with a neutral third party and attempting to talk through the problem to a compromise in a less formal and considerably less costly setting than a courtroom.

However, there are large differences between the two: the first is that a conciliator actively evaluates each parties claim and position from a legal standpoint. A conciliator does not decide legal issues in a binding way. Their role is closer to that of a neutral third party attorney.  The parties have the option to meet together or separately with the conciliator.  The parties then voice their goals and concerns. The conciliator will then evaluate their respective legal positions, and attempt to work out a solution between the two parties in light of that evaluation.

 Appointed conciliators usually send a report back to the court at the end of the conciliation. Conciliation is typically offered by the court pending litigation. In the probate court, conciliation is usually offered at the pretrial hearing. 

            In contrast, mediators act as a neutral third party who facilitates a discussion between the people in the dispute. A mediator can neither give legal advice to a party, nor can he or she evaluate the strengths of a party’s claim. A mediator also cannot predict a likely outcome at trial. Generally a mediator will meet with both parties at the same time and attempt, through a group discussion, to facilitate a mutually agreed upon solution.

            Another difference is that a conciliator, unlike a mediator, must be admitted to practice law to the state bar. While attorneys (myself included) can be mediators; conciliators, by virtue of giving legal opinions, must be attorneys. A conciliator must also complete at least eight hours of additional training and other continuing education requirements.

In Massachusetts, court-certified mediators also have significant training requirements: they have between 30-40 hours of additional mediation training as dictated by the Supreme Judicial Court Standards for Neutrals. If they work in a specialized area like family law, certified mediators also generally have additional mandated training.

            With either of these ADR methods any solution created is not binding until it is submitted to a court with the blessing of both parties. ADR offers a less costly, less time consuming, and more cooperative alternative to traditional litigation. If you are interested in my mediation or conciliation services, please feel free to call my office.

            

New Restraining Order Guidance Issued by the SJC

        

         In a recent SJC position, in Moreno v. Naranjo, the Massachusetts Supreme Judicial Court held that it was improper for a district court judge to makes inquires related to family visitation in considering a 209A Abuse Prevention Order. The purpose of a prevention order is to protect the plaintiff. I often will advise clients that this is a protection statute for their safety. The probate and family court is the appropriate arena to consider visitation. The court went on to say, “As the Appeals Court recognized, nothing in the statute authorizes the judge to limit the duration of an abuse prevention order out of concern for the defendant's visitation rights. The well-established purpose of the statute is to protect victims of domestic violence.”

            For more information on abuse prevention orders, more commonly known as restraining orders, you may visit www.bmjrlaw.com.

Improved Access to Courts for Folks with Disabilities

In response to a recent study, which essentially concluded that disabled parents are more likely to have their children taken away in custody disputes, H. 1379 seeks to improve access to the Probate and Family Court as well as providing safeguards for parents. Key language includes that there must be a nexus between the disability and the ability to parent in order to remove custody and the judge must make specific findings that the situation cannot be remedied by any adaptive devices. Other key provisions include access to interpreters and other adaptive technologies so that disabled people can gain access to the justice system. 

For the language of the bill visit http://www.malegislature.gov/Bills/188/House/H1379.

E.C.O. v. Compton, SJC – 11259

Recent case on 209A restraining orders--E.C.O. v. Compton, SJC – 11259 The issue in this case was whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age, from voluntarily engaging in a sexual relationship with an adult. The adult defendant in this case was twenty-four years of age, and a citizen of the United Kingdom. He met the daughter while she was traveling in Europe. After the daughter returned home to Massachusetts, they maintained a relationship via electronic communication. The defendant was aware of the daughter’s age. The electronic communication between them suggested a mutual attraction, including sexual remarks and some comments about furnishing the daughter with alcohol. The defendant planned a trip to the daughter’s hometown, and reserved space in a nearby inn while the daughter’s parents were out of town. The father filed a complaint for protection under G.L. c. 209A, but admitted during cross-examination that the defendant had not threatened physical harm to the daughter, or had involuntary sexual relations with her. The SJC held that there was no “abuse” under G.L. c. 209A, §1(b) and as such there was no basis for issuing the extension order. The father tried to argue that there was “abuse” because by suggesting that he was going to supply the daughter with alcohol, the defendant placed the daughter in fear of imminent serious physical harm. The court disagreed, comparing the definition of “abuse” under the statute with the common-law definition of the crime of assault. In order to be considered “abuse”, the defendant’s behavior must have placed the daughter in reasonable apprehension that the defendant might physically abuse her. The defendant’s act of making passing references to alcohol in his electronic communications with the daughter did not rise to the level of “abuse” as defined under the statute. However, the court did find evidence of a “substantive dating relationship”, noting the “real time” nature of many of the couple’s electronic communications. The court noted the changing technological nature of relationships, and the importance of Chapter 209A including substantial “electronic” relationships within the definition of “substantive dating relationship”. Nevertheless, because abuse was not established, the abuse prevention order issue by the lower court was vacated.

Morales v. Morales, SJC 11104

A recent family law decision on material change of circumstances--Morales v. Morales, SJC 11104 The Supreme Judicial Court ruled that a divorced parent no longer needs to prove a substantial change in circumstances to modify a child support order. The SJC instead focused on the language of Massachusetts General Law chapter 208, §28, which provides that modification may be made “if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines”. This standard is known as the inconsistency standard and will be the standard that Massachusetts judges should apply to all child support modification cases going forward. In Morales, the previous child support order required Father to make weekly child support payments to Mother for the care of their child. Approximately one year after the order for support entered, Mother requested modification based on Father’s recent job promotion. The Probate and Family Court found that this did not constitute a “material and substantial change in circumstances” and dismissed the complaint. The Appeals Court affirmed in an unpublished decision. The SJC remanded the case for consideration based on the inconsistency standard rather than the material and substantial change in circumstances standard.