In many courts, the fact that one spouse is having or has had an affair will not be a major consideration in a typical custody case.

While adultery remains a ground for divorce under G.L. c.208, Section 1, it is rarely used by litigants. Most judges prefer to hear about the conduct or misconduct of the parties as a factor under asset or alimony determination. The court's role in divorce cases is not to punish immorality or reward virtue and, as such, adultery typically has little impact on the results of the case. However, if one parent's sexual activity affects the children, it is an entirely different story, as it is not in the best interests of the children.

If the parent is leaving the child unattended while he or she pursues romantic interests, or if the children have witnessed such activity, this will impact your case. Obviously, if you are the one engaging in such activity, stop immediately. If it is your spouse, be sure to keep a record, and inform your attorney.

Clients often ask when they will be free to date. Once the parties have separated and the marriage is clearly over, the court has little interest in the parties' social activities. It is always wise to be discreet about dating when children are involved. It potentially hurts your bargaining power, if not your case, when you bring a new partner in to the children's life before you are divorced.

Posted by Judith A. Heller, Esq. at 1:48 PM | Permalink | TrackBacks (0) | Comments (0)

Twice in the past four months I have had to defend false accusations of abuse in child custody proceedings. While it is understood how both judges and the Courts choose to "err on the side of caution," refusing to grant an "accused" any parenting time with the child is a hard pill to swallow - after all, aren't we supposed to be innocent until proven guilty?

Using false accusations of abuse to gain an advantage in child custody proceedings is a horrible thing to do to a child; it's one of the top threats and tricks between angry litigants. False accusations should be taken very seriously by the Courts, and should be viewed as strong evidence that a parent has little concern for the child's mental well-being, and cares even less about the child's relationship with the other parent.

While both mothers and fathers have brought false abuse allegations in divorce proceedings, mothers seem to be more likely to be believed. In one noteworthy case I read, a young child told her father of improper touching by a babysitter, and he reported the allegations to the authorities. When social workers investigated, the mother accused the father of molesting the daughter. These accusations resulted in a long legal battle, where the father had to fight for even limited access to his daughter. During the father's four-year legal battle, the mother was diagnoses as mentally ill, and was temporarily institutionalized. When social workers wrote their report fretting that the father might gain custody as a result of the hospitalization, the Court dug deeper and eventually found the charges were false.

Historically, parents who complained of false accusations were ignored. However, recent studies illustrate how common false allegations are. In Canada, an analysis of child abuse allegations revealed that 60 percent of accusations were related to marital breakup and two-thirds of those cases found no evidence of any abuse.

If you face false accusations of abuse, you are likely to face a costly and difficult legal battle. The most rewarding part of my representation in these matters is when the judge begins to see the lack of credibility of the parent making the false allegations and begins turning the case around in favor of my client. My advice to clients is that, in the end, the truth always prevails. If you're stuck in the middle of a baseless allegation of abuse, it is strongly recommended that you obtain the assistance of an attorney who has experience fighting this long battle.

Posted by Irwin M. Pollack, Esq. at 1:32 PM | Permalink | TrackBacks (0) | Comments (0)

As a family lawyer, I'm pretty open about the fact that I've been divorced for almost 15 years. I never suggest it's easy co-parenting with a former spouse, but with some hard work between the two of you toward putting the past behind you, there are some steps you can make toward reducing conflict and moving on for the sake of your children:

1. Don't make visitation arrangements directly with your children - especially if they're under the teenage years. Moreover, use your best efforts to not suggest visitations or plans with the children that you have yet to do so with your co-parent.

2. Don't get hung-up on the premise that one parent has "custody" and the other has "visitation." In most cases, the Courts prefer to fashion orders around the term "parenting plan" where both parents are presumed to be in the best interest of the child.

3. Don't count the pennies when it comes to raising your children. Cooperate with each other on Court-ordered child support, don't quibble over reasonable extra-curricular activities and don't send receipts back-and-forth that require the eyes of an accountant or add-up to less than $20.

4. Send (and return) children who are clean, well-rested, fed and in the best mindset possible. Do your best to not exchange bags of dirty clothes.

5. Don't turn everyday e-mail exchanges or telephone messages into World War 3. While you may not be together with your former partner anymore, you still need to co-pilot as it relates to your children.

6. I usually make it a standard to put the following into my Proposed Orders: "Neither parent will make disparaging comments about the other parent (or their family) in front of the children." Best explained, don't discuss the differences between you and your partner with the children, don't send messages back-and-forth and don't discuss matters related to any legal matters with them.

7. Don't referee or mediate matters between your children and their other parent. While it's understandable that you'd want to truly listen (and give a sympathetic ear), remember how you'll likely not be hearing the entire story.

8. Be courteous at times of pick-up and drop-off. Don't honk your horn, arrive on time and have the children ready at the scheduled times. If you need to walk up to the front door, be pleasant and don't go inside the other parent's home unless invited.

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   Posted by Irwin M. Pollack, Esq. at 9:54 AM | Permalink | TrackBacks (0) | Comments (0)

Helping children heal begins before any legal papers are filed, with how and when parents tell their children about their decision to break-up.

The first words children hear about divorce should be from their parents, as soon after the decision as possible. It is not to wait until one parent has already moved out of the house.

Ideally, both parents should be there when the children are told. Age plays a big role in how a child deals with divorce. If the children are roughly the same age, they should be told at the same time. If there is a wide age difference, it can be useful to tell them together, and then have separate meetings with the children individually, adapting each explanation to each child's level of understanding.

When informing children of an impending divorce, parents should not divulge such details as infidelity or sexual deprivation, and they should not blame one parent or the other. One possible approach is to present the divorce as a solution to the family's problems, an end to the fighting and tension that have filled the home with anger.

Honesty is a crucial element in informing children of the split. They should be told they their lives will change, and that some things, like spending time with the parent they're not living with most of the time, will be harder.

Children should be prompted to talk about their feelings with parents, family, friends, or a counselor.

It is best that parents not ask their children to choose with which parent they want to live. If they have an opinion on the matter, it will likely come out on its own. If they do not, they shouldn't be put in the position of choosing between one parent or the other.

In Massachusetts, courts are beginning to order parenting plans. These plans typically allow both parents to have an equal say in decision-making on the child's behalf, even if the physical parenting time may not be equally divided.

Although sharing parenthood with a former partner can be difficult, co-parenting is one of the best ways parents can show their children how much they love them.

Family law attorneys often hear from parents that their children still dream about being part of the storybook family: a mommy and daddy, several happy children and a dog all living blissfully under one roof. But as American divorce rates continue to rise, that dream is becoming a reality for fewer and fewer families.

In its place, for both parents and children, are opportunities. By stepping back from their own anger, divorcing parents can move closer to what should be a common goal for their children: maintaining a nurturing environment and minimizing the potentially traumatic byproducts of the so-called "broken home."

There are many resources available on this difficult subject -- check out some of my recommendations.

Posted by Irwin M. Pollack, Esq. at 12:27 PM | Permalink | TrackBacks (0) | Comments (0)

Earlier this week, I was preparing my client for what is bound to be a rough custody dispute. The first exercise I suggested that she consider was to create a chart to rate herself and her spouse in the areas listed below. How to score: Give yourself one point for each of the factors where you "over-achieve" and give your spouse a point if he or she is the over-achiever. In factor number three award two points to the over-achiever. Factor number ten earns two points if the average age of the children is over ten and three points if they are over fifteen. Here are the factors:

1. Love, affection and emotional nurturing

2. Capacity of the parties to give children love, affection, and guidance.

3. Length of time children have lived in a stable environment.

4. Each parent's ability to provide food, clothing, and medical care.

5. Permanence as a family unit of the existing (or proposed) custodial home.

6. Moral fitness and overall values

7. Physical, emotional and mental health

8. Home, school, community setting

9. Parent's willingness and/or ability to foster a working relationship with the other parent.

10. Preference of the minor children.
    

Posted by Irwin M. Pollack, Esq. at 8:00 AM | Permalink | TrackBacks (0) | Comments (0)

Most people - going through a divorce or not - would agree that there are usually two sides to every story. In the case of divorce and child conflict, you may want to consider that there are at least three sides or viewpoints to every story.

Think of three chairs - two large chairs and a very small one in between the two larger ones. His (the father's), her's (the mother's) and their's (the children's). Whenever you're faced with a difficult custody problem, try to understand and identify the solution from the prospective of the "little" chair. Remember the Massachusetts' standard: The Best Interest of the Minor Children.

When children are involved, it is most often necessary to let go of your own position to fully appreciate the situation as experienced by the children. If you have come to the conclusion that you and the children's views are exactly the same, consider that it is even possible that they feel pressured to side with you. Such alliances are often expressions of co-parent conflict. You will find that the best solutions will be those that serve the needs of the children as seen from "the little chair!"

Posted by Irwin M. Pollack, Esq. at 8:00 AM | Permalink | TrackBacks (0) | Comments (0)