What a 209A Means for the Kids

209A Abuse Prevention orders are valuable tools to protect families from domestic violence. A judge can issue a 209A that requires an abuser to stay away from his or her partner, or extend the order to include any children in the household. Because of the power of a 209A (they often are in effect for a full year), a judge must carefully weigh the facts of the case when deciding the provisions of the order. 

The 1995 case Jodi Smith v. Robert Joyce out of the Supreme Judicial Court of Massachusetts found that while the plaintiff, Ms. Smith, had demonstrated that she was "in fear of imminent serious physical harm”, thus meeting the statutory requirement for a 209A protective order, there was no evidence of abuse or harm between the defendant, Mr. Joyce, and his sons. Originally, the 209A in this case only allowed Mr. Joyce bi-weekly phone calls with his children. However on appeal, the judge ruled that, “If there is to be a G.L. c. 209A order that a defendant stay away from and have no contact with his or her minor children, there must be independent support for the order.” Because the only evidence of abuse was between the plaintiff and the defendant, the court struck the provision from the 209A order that directed him to stay away from his sons. 

Welcoming the Troops Home for the Holidays

With the War in Iraq officially over, scores of U.S. military members will be returning to the United States just in time for the holidays. While we are so happy to welcome our troops home, we must also recognize the host of issues facing our service members. The Department of Defense runs a website called MilitaryOneSource.mil which serves as a launch point for all kinds of services available to U.S. military members and their families. The website provides information and services on a wide range of issues facing service members and their families including: money management, relocation, parenting and child care as well as relationships, stress and grief, to name a few. Understanding that many of these issues are full time concerns, Military One Source operates 24 support by both phone and e-mail.

From poking around the website, one of the services I found was military subscriptions to the popular website SitterCity. SitterCity helps parents find well-qualified child care providers and babysitters in their areas. While typical memberships to parents run up to $140/year, the military offers free memberships to servicemen and women through a link on the Military One Source website.

Above all, Military One Source creates a community where members of the armed forces can find the support and help they need as they share the challenges and rewards of life in the military.

Penn State [Media] Monster

(Guest post written by Juliette Quinn, law clerk for Attorney Brian McLaughlin)

On November 5, 2011 former Penn State assistant coach Gerald A. Sandusky was arrested following a Grand Jury indictment identifying eight victims of sexual abuse.

The news is all over the sports stratosphere—turn on ESPN and you are bound to see up to the minute updates on Penn State, Joe Paterno, or Sandusky streaming along the bottom of your screen.  As analytical consumers of the media monster, we must not allow the constant attention given to the football side of the story overshadow the impact of child sexual abuse on its victims.

Every year, there are more than 80,000 reports of child sexual abuse.[1]  In a kindergarten class, four of every twenty students are likely to be sexually abused before they graduate from high school.[2]  The actual number of instances may be even greater, given children are often afraid to report the abuse and the legal procedures confirming the occurrence of an event may be difficult to overcome.

Statistics aside, the psychological effects of sexual abuse of any one child last for a lifetime.   Victims of child sexual abuse often are caught between feelings affection and loyalty for their adult abuser who gives them attention and shame stemming from the sexual activities.  Child victims may experience “fear, anxiety, depression, anger and hostility, aggression, and sexually inappropriate behavior”.[3]  As adults, victims of sexual abuse may experience reactions relating to their ability to set boundaries, anger, flashbacks, grief, guilt, trust issues, coping skills, self-esteem, and sexuality.[4]

Here are some more articles taking a child-centric view of the Penn State scandal:

• http://espn.go.com/espn/story/_/id/7208581/rick-reilly-penn-state-scandal - Voted National Sportswriter of the Year 11 times, Rick Rielly reminds us to remember the children
• http://www.thedailybeast.com/articles/2011/11/11/joe-paterno-should-rot-in-jail.html -  an adult victim of sexual abuse speaks out about his experience and his emotions toward Paterno

If you suspect a child is being sexually abused, please take action. The following link provides information on how best to confront the situation: http://www.stopitnow.org/ohc/41.

Bringing Third Parties to Initial Consultations

I saw this great blog post on Divorce Discourse and wanted to share it:
http://divorcediscourse.com/2011/10/27/mom-consultation/

I happen to agree with most of the article, especially the premise that a third person in the room can be helpful. I find that particularly when a client is very young, having a third party is helpful for remembering dates and the nuances of the process, I just make very clear that the third party is not my client and during particular phases of the interview, I will ask them to leave the room. I also promise the third person that I will keep them updated with the progress of the case but not as to the substance of the conversations between myself and the client.

More challenging I find is the situation when someone brings in their children for an initial consultation. It is often suggested by other attorneys not to allow children in meetings, although I find it difficult to enforce such a policy since getting a babysitter can be so difficult for so many clients. Often times the child’s presence can be distracting and you are unable to ask the difficult questions. So if at all possible, I advise clients to leave their child at home or we will re-visit the difficult questions at a later point in time.

The moral of the story is, you can bring a friend, but leave your child at home.

New Law Mandates Increased Access to Services for those with Autism

Massachusetts became the 23^rd state to pass legislation expanding health insurance coverage to children and adults with an Autism Spectrum Disorder (ASD). The law which was approved by the Governor on August 3, 2010, went into effect on January 1, 2011. With students returning to schools across the Commonwealth, it is important to explain what is and is not covered by the new law, and what schools’ obligations continue to be under the Individuals with Disabilities Education Act (IDEA).

ARICA (An Act Relative to Insurance Coverage for Autism) mandates specific private health insurance providers to cover an expanded range of services for those on the Autism Spectrum. In particular, the law requires these insurance companies to cover “medically necessary” care including: habilitative or rehabilitative care, pharmacy care, psychiatric care, psychological care and therapeutic care.  

ARICA is only applicable in Massachusetts, so it only affects Massachusetts residents who have ASD and are enrolled in private health insurance plans. It applies to most private health insurance policies but does not apply to policyholders with MassHealth /CommonHealth. You should check with your individual insurance provider to verify the effect of the new law on coverage.

While this law is a huge victory for families who have loved ones with Autism, it does not diminish a school’s need to provide a free and appropriate public education. For example if a student now receives occupational therapy outside of school due to the reduced cost, but the IEP states that the student should receive occupational therapy during the school day to meet the student’s needs, the school cannot eliminate the therapy during school hours just because the student is now receiving therapy outside of school. The school must take into account what the student’s needs are in order to succeed in school and receive a free appropriate public education. The new law does not mandate reimbursement to schools and school districts for providing these services.

Hopefully the new law will lead to students receiving increased services outside of school allowing them to be more successful as they progress through their educations.

Restraining Orders 101: Part 2

This is part two of Restraining Orders 101 and details the process for seeking a restraining order once it is deemed to be the right course of action.

The Process:

Once you have determined that getting a restraining order is the right step to take, it’s important to understand the process. The first step is to go to the Clerk’s office at your local courthouse and fill out an affidavit requesting the protective order. If it is a holiday, night or weekend, call the police and they will put you in touch with an on-call judge. The next step will be to present your safety concerns to a judge who will decide whether a restraining order is appropriate in your situation. If so, he or she will provide you with a physical copy of the restraining order and the other will be sent to the police. It is important to note that this initial protective order is only TEMPORARY, and will last 10 days. The police will take care of serving the abuser with the restraining order. This means they will go to the abuser’s house and physically tell him or her that an order has been filed. If you are living with your abuser, the police can help you by coming to your house and removing the abuser from the premises.  Before 10 days has elapsed, you will need to attend a hearing which allows the abuser to prevent his or her side of the story. Keep in mind, this part of the process can be very difficult so it’s a good idea to have an advocate or friend accompany you to the hearing. If the permanent restraining order is granted it can last for up to a year; violation of the order is a crime and if that occurs, call the police immediately.

This procedure is quite complicated and we recommend hiring a lawyer to help you through the process. Feel free to contact Attorney Brian McLaughlin to set up an appointment if you are considering a restraining order.

For more information click here.  

Navigating Changes in Alimony Over Time

The purpose of alimony “is to avoid any unfair economic consequences of a divorce, even after property is divided and child support, if any, is awarded.”[1] Two Massachusetts cases illustrate how alimony changes over time, particularly when one spouse reaches retirement age.

In Pierce v. Pierce (SJC-10381), Rudolph Pierce, the former husband, had been paying $110,000 annually in alimony while earning approximately $450,000 each year as a partner in the law firm where he worked. At the age of 65, Pierce voluntarily retired and filed a motion to eliminate the alimony he was paying to his ex-wife Carniece due to his retirement. At the time of his retirement, Rudolph Pierce had remarried and his second wife earned $125,000 annually. In this case, the judge ruled that a reduction of alimony to $42,000 a year was fair for all parties involved. On appeal Rudolph Pierce again asked the court to eliminate his alimony obligation. The appeals court however found that while reaching retirement age is certainly a factor to consider in alimony judgments, the opposing party’s financial situation is also important to weigh when considering an alimony modification. In this case Carniece Pierce had recently become unemployed, had not received any severance, was not remarried, and at age 64, was not receiving Social Security benefits.  Furthermore, the judge concluded that while Rudolph was able to maintain the same standard of living that he had enjoyed pre-retirement, Carniece would not be able to maintain that standard without Rudolph’s alimony support. The judge also concluded that Rudolph would be able to afford the reduced alimony payments of $42,000 annually.

In contrast, in the case of Ross v. Ross (10-P-1130), the judge allowed that upon Adam Ross’ retirement, he no longer needed to pay alimony. In this case the judge allows that the defendant’s good faith retirement at the age of 65 would prevent him from being able to pay alimony due to his decreased income. Furthermore the judge demonstrates how Joan Ross’ need for alimony has diminished in the time since their divorce. Going back to the definition of alimony, intended to level the playing field, the judge found that in the 10 years since the divorce, the parties children have become emancipated, Joan can be self-supporting based on her skills, education and experience, and she does not need alimony to maintain her lifestyle. Another point of note is that at the time of the appeal, Adam was nearly 66 while Joan at almost 14 years his junior has more earning potential through employment or investments.

These two cases illustrate how the former spouse’s current economic situation remains a central factor when calculating alimony, even after one party reaches retirement age.

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[1] http://legal-dictionary.thefreedictionary.com/alimony