Post-Divorce Problems: Who has to pay for College?

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses.  Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way.

When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable for Contempt sanctions.

If the issue of payment of college is modifiable in your agreement or defined vaguely or not at all, then when it comes time to determine how the college education expenses are going to be split, you should try to reach agreement with your ex-spouse on this issue.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing approving the division.

If your agreement is vague and you can’t agree, then you must file a Complaint for Modification to have the court determine contributions.  If you have a specific agreement, but it is modifiable and you do not think you can afford to contribute an equal share for college, then you may want to seek modification of this clause by filing a Complaint for Modification.

If this issue is put before a Judge, many Judges are reluctant to order parents to contribute more than one third or one half of the cost of a state school. Of course, this also depends on the financial abilities of the parents.

Often child support and/or alimony orders may also be changed by a Judge if college education expenses are going to be added to the total support obligation.

Click here to learn more about filing a Complaint for Modification.

Implications for Firearms Owners Served with 209A Restraining Orders

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

Sharing is Caring - Tumblr and QR Codes

At Kelsey & Trask, P.C. we try to use the latest technology to stay current on the newest laws, to help our clients communicate with us more efficiently and to stay connected with our friends, other professionals and our clients. You probably already know how to find us on Facebook, LinkedIn and Twitter, and to download our iPhone Apps.

And now we've added two more ways to connect with us faster: QR Codes and a Tumblr page.

QR Codes:

A QR Code is a two-dimensional barcode readable on any smart phone with a camera. Just download a QR Code Reader (I use Neo Reader, which is free) and you can use the camera in your phone to read the Code. For example, if you scan the Code to the right you would be taken to our mobile News & Media webpage.

We've also incorporated QR Codes into our latest business cards (pictured below). If you scan the Codes on our business card you will be taken to our mobile contact page. From there you can get directions to our office, call us, or download our contact information straight to your phone's contacts (via VCard downloadable on most phones).

For some other examples of how business are integrating QR Codes into their business cards check out dzineblog's 20 QR Code Business Cards Design Inspiration. To generate your own QR Codes for free online we use delivr's QR Code Generator.

Tumblr:

Tumblr is the latest in sharing online, allowing users to share blog posts, photos, videos, and links quickly and easily. You can follow other Tubmlrs and repost their content, just like on Twitter, but unlike Twitter you can share more than 140 characters.

To follow us on Tumblr visit kelseytrask.tumblr.com. If you have a tumblr login then click on follow in the upper right hand corner to have our content streamed right to your tumblr dashboard.

Custody Reform: H.1330 - Can Court Ordered Mediation be Effective?

HO1330 is the second House bill which proposes to make amendments to the current custody statute. This proposal was also filed in the House on January 20, 2011 and referred to the Joint Committee on the Judiciary on January 24, 2011.


H.1330 – Legislation relative to the determination of the legal custody of children in court cases.


Unlike the first House bills we reviewed (H.1306), this proposal doesn't change the best interest standard, but still adds a presumption of temporary shared physical custody.


This bill begins by deleting the current statute and replacing it entirely, however much of the text remains the same. The definitions of custody remain in the proposed bill, as does the presumption of temporary shared legal custody.


The bill adds the "rights of the parents" to the factors that the court should consider in creating parenting plans. The proposal keeps the language allowing the Judge to consider adverse affects of the past or present living situations but adds language requiring the court to consider "who was responsible" for this conduct. The addition is understandable, but from a practical standpoint if the court was considering negative conduct then who was at fault was already being considered as well.


Temporary Shared Physical Custody and Required Dispute Resolution


The bill also adds a presumption of temporary shared physical custody, and still allows a Judge to order sole custody if shared custody is not in the best interest of the child with the addition of requiring written findings of any such decision. This means that the standard is not changed but that the Judge must specifically write in the order how they applied the standard.


The next section of the proposed bill makes the most significant change to the current statute, by adding more specific language as to what factors the court should consider in denying shared custody:

In determining whether temporary shared legal and/or physical custody would not be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any parent abuses alcohol or other drugs, has deserted the child or alienated the children toward the other parent; but a history of the parties inability to cooperate will not be determinative of the issue of custody. If there are facts of a lack of cooperation or by agreement of the parties, the agreement or order must contain a provision for resolution of matters of dispute in the future during joint legal or physical custody by final alternative dispute resolution a) arbitration in accordance with the provision of c. 105C in this court, b) by agreement, or c) presentation of the issue in dispute only to the probate court by complaint pursuant to c. 231A for future resolution and an enforcement order. Such alternative dispute resolution must be tried and fail before a modification can be entered in this regard. Orders described herein after hearing or trial and or an agreement enforced by the court shall be considered a final judgment notwithstanding future dispute resolution provisions are included therein. In addition it shall be grounds for modification of custody and the awarding of counsel fees to the other party, if a parent is found to have persistently and/or in bad faith, failed to carry out the terms of the said joint custody order or engaged in parental alienation in regard to the other parent with a child.

In addition to enumerating more specific factors, this section requires dispute resolution, and wouldn't allow the court to deny shared custody because of one parents failure to cooperate with communication. This is a major complaint about the current statute. The motivation behind requiring better communication and better efforts towards communication is noble, but the practical implementation of this section may not be realistic.


Unless the Courts can budget for dispute resolution services (unlikely), then many litigants will not be able to afford the required dispute resolution services. In principal this is a statutory recognition of a failure of the court to properly resolve these matters, and in that way feels like an admission of failure. Wouldn't it be better to improve the court system than to require people go elsewhere?


One possible compromise, for example, would be to allow Judges the authority to appoint Parent Coordinators. Another possible solution would be to revamp the required Parenting Course to include dispute resolution training.


Restraining Order Presumption


This proposed bill also makes changes to the language relating to restraining orders in the original custody statute. We have already discussed our concerns about proposals which delete this standard altogether (or in some cases reverse it). In this case, this proposed bill offers a compromise between keeping the presumption and deleting it:

If despite a current or permanent restraining order against one parent pursuant to chapter two hundred and nine A being in effect, the court orders shared legal or physical custody either as a temporary order or at a trial on the merits, the court shall provide written findings to support such shared custody order and cause the 209A order to be amended in regard thereto. The denial, or vacating of such an order first issued in a prior 209A matter by any court, shall be binding on this court, and the facts alleged or which could have been alleged, shall not be permitted to be considered again in regard to its custody or visitation determinations under this section. The definition of ‘abuse’ shall be the same in custody and visitation matters as defined by c. 209A.

This paragraph would keep the presumption against shared custody when a 209A order is currently in effect. But if the 209A order is denied or vacated, that decision shall be binding on the Family Court and the alleged facts cannot be then reiterated in the custody hearing. This change makes an attempt to weigh the desire to protect children from abusers, with an attempt to protect the wrongly accused from having to defend themselves in multiple courts from allegations already found false by a previous court.


There are still some potential problems with this compromise, though. If a 209A request is vacated or denied, this only means the facts presented don't rise to the level to require Protection from Abuse. This doesn't mean the facts are necessarily false or irrelevant for custody determinations. For instance, what if a mother requests a 209A because the father is a drug addict and the mother is in fear because of the unpredictable nature of his addiction. A Judge could reasonably find, without more evidence of past physical violence or threats of violence, that drug addiction is not enough to warrant a 209A Protection from Abuse. Under a strict reading of the proposed language, the facts presented at the 209A hearing can not then also be considered by the Family court in custody determinations, even though they are clearly relevant.


The intent of this proposed language is good, but the application could be impractical. There is a way to draft the language to reach a compromise more appropriately. For example, rather than disallowing the entry of the facts in evidence, the requirement of written findings is deleted if the 209A is denied or vacated and the presumption for shared custody remains in this case. This would be an appropriate compromise that wouldn't keep the Judges from hearing relevant evidence, but still prevent parties from using false restraining orders to obtain a custody presumption.


Permanent Shared Physical and Legal Custody:


The proposed bill keeps the requirement for the submission of parenting plans at trial if there is a custody dispute, but adds a requirement that said plans contain dispute resolution provisions. In addition, the proposed bill would add a presumption of shared legal and physical custody at trial:

There shall be a prima facie presumption in favor of shared legal and physical custody in determining final custody and visitation on the merits, at trial by agreement and/or at a hearing.

In addition, the standard for overriding a joint plan proposed by the parties is significantly higher under this bill:

If the plan is submitted by the agreement of the parties jointly, the court may not reject such a joint custody plan submission and issue a sole legal and/or physical custody award, unless there is a preponderance of the evidence submitted sufficient to overcome the presumption of shared custody or to support an amendment to the joint plan, and the court issues findings of fact and law giving its reasons for such actions.

As discussed in previous posts, Judges don't usually deny jointly created custody plans anyway, so raising the standard is unnecessary but also a non-issue.


Child Support


The proposed bill also reverses the Child Support section to require reconsideration if there is a change to shared custody:

An award of shared physical custody shall be considered in determining the amount of child support owed by either parent based on the time the children are supported by either of them when in their residences under the plan and the economic circumstances of the parties. An order of shared custody shall constitute grounds for modifying a prior support order based on sole custody if there is a demonstrated economic impact that is a sufficient basis to warrant modification, or may be the basis for changed orders during joint custody if the economic circumstances of either of the parties shall change in the future.

This is consistent with the current Child Support Guidelines and makes more sense than the current statute.


Finally, the proposed bill also adds the preponderance of the evidence standard to the appeals section C. 215 Section 9.


Conclusion:


Good Intentions, Bad Law. The premise of many of the changes made her makes sense, and we even support the attempt to compromise on the controversial restraining order issue. However, the language of the proposed bill creates impractical requirements to accomplish these changes. The restraining order section should be rewritten, and there should be greater investigation into the best way to foster conflict resolution (other than required dispute resolution services).


This bill is a step in the right direction (and better than most we've reviewed so far), but still needs some work to have the practical effect intended.


To read more about Shared Parenting in Massachusetts, check out the following pages:


Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.


Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation