Parent Coordinators are commonly used in child custody and parenting matters in Massachusetts to facilitate resolving disputes between parents on issues relating children of divorce and children born out of wedlock. The Parent Coordinator typically acts as a referee to rule on any disputes, or works more like a mediator to help the parents negotiate and resolve any dispute. Using Parent Coordinators can be an effective tool in assisting parents in avoiding lengthy litigation in the Probate and Family Court to resolve custody and parenting disputes.
On September 15, 2014, the Massachusetts Supreme Judicial Court ruled on a case of first impression relating to Parent Coordinators, in the case of Bower v. Bournay-Bower. The issues at hand were whether the Probate and Family Court has authority to appoint a Parent Coordinator over the objection of one parent, and also whether the decision of the Parent Coordinator be binding upon the parents.
The Supreme Judicial Court acknowledged that Parent Coordinators play an important role in resolving disputes between parents. The SJC further stated that the Probate and Family Court can recommend or refer a Parent Coordinator in a specific case, but the authority of the Probate and Family Court is not limitless. By mandating that a Parent Coordinator be appointed to a case, the SJC held that such an appointment undermines due process and the rights of parent to seek relief through the courts and also obtain judicial review.
However, in no way does the SJC mean to discount the important role Parent Coordinators play in a custody or other child-related matter. The Court acknowledges that parties can by agreement engage a Parent Coordinator, and define the scope of the Parent Coordinator’s role, including binding the parties to any decisions made by the Parent Coordinator. Because of this importance, the SJC referred the issue of Parent Coordinators to the Probate and Family Court to review whether rules regarding Parent Coordinators should be promulgated.
Ultimately, the use of a Parent Coordinator, after Bower v. Bournay-Bower is still permissible; however, the appointment of a Parent Coordinator by the Probate and Family Court when one or both parents object to such an appointment is not permissible. Now it we will just have to wait and see what, if any, rules the Probate and Family Court promulgates regarding Parent Coordinators.
Sep 4, 2014, 9:22 AM ET
By LAURA MATTIA, Baron Financial Group
Financially Empowering Women
Too many women undergoing divorce don't think enough about their long-term financial stability.
All too often, women getting divorced become financial victims. Many get settlements that are fair or, in some cases, more than fair. But because they have misguided priorities, they may make choices that aren’t in their best interest, ultimately rendering themselves victims. The sad reality is that they are responsible for this unfortunate fate.
For some women, victim status is assured by the way they relate to their husbands concerning money during their marriages. When they get divorced, the choices they make amid this emotional turmoil may stem from this marital dynamic in ways that make their situations worse. By contrast, women who are financially empowered are more likely to make choices in their best interest.
If women are to emerge from divorce in a financial situation that works for them in the long run, many need to begin thinking in a new way. Just thinking straight is difficult when undergoing this emotionally wrenching process. Thinking about money in a new way is especially difficult.
Critical to this new mindset is the importance of looking out for yourself – not just regarding the division of marital assets, but also regarding your long-term financial security. Many women who have been financially dependent on their husbands in marriage make the mistake of continuing this dependence after divorce by focusing too much on alimony. There’s nothing inherently wrong with getting alimony, especially if you’ve foregone career opportunities to stay home with the children, enabling him to advance his career. However, obsessing over alimony to the exclusion of self-reliance can be an error with serious consequences.
You may not get all of this money; some ex-husbands disappear to avoid their alimony (and child-support) obligations or they just don’t pay, and it can be extremely difficult to get them to make up missed payments. They could become disabled, unable to work, or they might die. Many women think they have this covered by life insurance, but what if, to give an extreme example, he commits suicide? Then the insurance company may not pay.
Also, in many states where alimony is common, divorce agreements typically limit the total amount and duration of alimony payments. What will you do when the payments end?
A more fundamental problem with obsessing over alimony is it’s a distraction from what should be your real focus: earning a living. If you can get alimony, fine. But instead of getting as much alimony, perhaps you can secure a provision in your divorce agreement to receive money for tuition for more education or skills training to increase your value on the job market.
If you’re working already, of course, there’s not as much need for alimony, though you’ll probably need to make more money. Consider the old adage about learning to fish versus receiving a fish. If you’re in your 30s, 40s, or 50s when you get divorced, becoming equipped to get a job or increase your existing income can make a significant long-term difference.
Failing to realize the importance of true independence, some women undergoing settlement negotiations don’t like to talk about increasing their incomes -- or, if they don’t have a job, about getting one -- because they believe they’ll get a better deal in their agreement if they appear helpless (victims). They should be aware that because they’re not focusing on their own earning potential, their fixation on alimony could cost them dearly.
Regardless of their post-divorce earnings picture, many women make self-defeating decisions regarding their property settlements. A prime example of this is the common fixation on trying to get the house. They think of how their children used the swing set in the backyard, and irrationally connect motherhood with getting the house. Emotionally tied to their homes, they don’t consider a host of important financial factors.
When a couple divorces, one household becomes two. This is expensive. Critical questions include:
Instead of getting the house, perhaps it would be better to get a fair share of the liquid assets (which may include money from the sale of the house), plus money for job-training or additional education.
The goal of post-divorce life should be financial independence and self-reliance. Finding a man with money after divorce isn’t independence; it’s dependence. As is the case when you’re married, a man is not the answer to your financial situation.
Often, the die is cast for becoming a financial victim of divorce during the marriage. The way to avert this fate is to claim your financial power and to use it to make beneficial decisions during – and, if you get divorced, after – your marriage. Claiming this power is an uphill battle when you’re divorcing, but it’s all the more necessary then.
Any opinions expressed here are solely those of the author.
Jeffrey Meshel was married for 12 years — but he wasn’t exactly living in marital bliss. He was very unhappy for the last several years of his marriage — he describes it as “more of a cohabitation” than a relationship — but the Midtown East resident, 57, didn’t want to get divorced because he didn’t want to hurt his children.
In 2004, Meshel, the president of a real estate investment firm and founder of the Manhattan-based support community divorceforce.org, couldn’t take it anymore. He concluded that even though he wanted to protect his son and daughter who were 7 and 3, respectively, at the time, he needed to cut ties. Still scared to make the leap, he looked to his inner circle of friends, six of whom were divorced.
“I saw that they were so happy in their new, post-split lives, and I think that on a subconscious level, their newfound happiness had a degree of influence on me. I saw that they were so much better off, and their successful end result acted as my enabler to go through with it, too,” he explains.
Meshel isn’t the only one who’s been influenced by his close friends’ splits — so-called “copycat divorces” are actually quite common. An April 2014 joint study from Brown University, Yale University and the University of California, San Diego, found that people are 75 percent more likely to be divorced if one of their friends is divorced.
And Meshel’s logic is actually one of the most common reasons why copycat divorces occur. Many copycatters want to get divorced but don’t have the guts to go through with the humongous, life-changing, emotional roller coaster of an event — made even more complicated if kids are involved. But seeing their friends do it first gives people the strength to follow suit — and the reassurance that it’s possible for everything to work out OK.
“People often stay in unfulfilling marriages because they don’t want to be blamed for ruining the dynamics of the friend group, or the family,” explains Christie Hartman, a Denver-based dating and relationship expert. “But if one of their friends blazes the trail first, and they see that their friends survived the trauma, it’s easier.”
Another reason for copycat divorces is that having divorced pals provides a built-in support group.
Nicole Feuer, 45, can validate that logic. The Westport, Conn., divorce advisor and founder of the divorce community sosdivorceadvisors.com, told one of her best friends, Sarah, that she was filing for divorce. And Sarah, whose name has been changed for privacy reasons, filed for her own divorce three months later.
“Sarah told me that she felt relieved just knowing she would have someone to support her and who would understand what she was going through — and I felt the same way,” says Feuer. “She told me that she may not have gone through with her divorce had I not just done it.” Point is, Feuer and Sarah were there for each other in ways they felt that their other married friends were not. “It helps to know that someone relates to your situation,” she says.
So are copycat divorces a good idea? In certain scenarios, like Meshel and Sarah’s, they can be. The desire was there for both of them, and they just needed courage and reassurance. The problem occurs if you do it out of peer pressure. “Check in with yourself, and make sure you’re doing it for you, not for your friends,” cautions Hartman. “Otherwise it will end in disaster.”
CHARLOTTESVILLE, Va. — MY wife and I disagree, sometimes vehemently, about how best to raise our four children. She’s a lawyer, and I am sure the thought of suing me has crossed her mind once or twice. But she cannot. American courts consistently refuse to entertain child-rearing disputes between married parents.
In 1936, the New York State Court of Appeals explained the reasoning: “Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.”
Married parents cannot sue each other. Divorced parents (or those who never married) can and do. Judges routinely decide where the children of divorced parents will attend school, worship and receive medical care; judges may even decide whether they play soccer or take piano lessons.
Judges do this because the law assumes that divorced parents’ interests in their children, unlike the interests of married parents, are not aligned. This is an outdated idea. The view of exes as opponents dates from an era when divorce and childbearing outside of marriage were rare. It is reflected in the legal language of a bygone time. One parent won custody, care and control of the children. The other became a visitor.
Today, close to half of first marriages end in divorce. About 40 percent of children are born outside of marriage. Custody is routinely shared by parents living apart. Many states have dropped the term “custody” altogether for more family-friendly terms. You no longer win or lose custody. You develop a parenting plan.
Psychologists and decades of research support this shift. Cooperative parenting benefits children, whether parents live together or apart. Just ask any kid whose divorced parents are at war, “What are three wishes for your family?” You can bet that one will be a version of “I wish my parents would stop putting me in the middle.”
Surprisingly, even when unmarried parents agree on a plan, judges can overrule it. For example, a judge may not like a complex joint custody schedule. If so, she can decide when the separated parents spend time with their children, even though they agreed otherwise.
This makes no sense. We may need judges to decide some divorce disputes. But when it comes to parenting, as much as possible, the law should treat unmarried people more like married people. Instead of telling parents how to bring up their children, we should honor — and encourage — agreements between parents.
We can do this with a very simple change in the law. When judges make decisions, they are guided by the “best interests of the child” — a list of factors like the parents’ mental health and the child’s wishes. States should add parental agreement to the list, and make it the primary consideration. This would mean that, at least when they agree, unmarried parents, not judges, make decisions about their children.This change could help us move away from litigation and toward alternative kinds of dispute resolution.
In a 2001 randomized study of child custody conflicts, I compared litigation and mediation, and found that six hours of mediation caused huge improvements in family relationships a full 12 years later. Other cooperative methods include collaborative law (where lawyers negotiate cooperatively) and parenting coordination (an informal mediation-arbitration procedure). We must make these our primary methods, not alternatives.
By honoring parental agreements, our laws would allow parents living apart to make enforceable contracts. Parents could make a deal, for example, that a parenting coordinator could make decisions for them in the future if they fail to agree. Currently, the legal status of such agreements is questionable, because judges, not divorced parents, hold decision-making authority over children. In an extreme move, Pennsylvania recently outlawed this practice, ruling that only judges could make decisions in custody cases.
Allowing parents to make contracts would help solve another thorny problem: sharing care of very young children. Experts are debating how much time babies should spend with just one parent versus with both parents. Many believe that babies need to form a secure attachment to one parent (most often the mother) and that too much separation will undermine a baby’s sense of security. Others worry that too little contact will weaken the second parent’s attachment, potentially leading him to drop out of his child’s life.
A logical solution is for parents to make a plan that will grow and change along with their child. A baby might stay mostly with one parent, and time with the other parent could increase during the toddler and preschool years. Perhaps the parents would share 50-50 custody when their baby is of school age.
Sadly, this common-sense approach is undermined by laws that do not honor such agreements, and push parents to fight instead. Lawyers wisely tell breast-feeding mothers to fight for full custody. Judges are likely to be sympathetic to a nursing mother. Yet lawyers also wisely tell the fathers of babies to fight for their custody share. The father’s case will be weakened if he waits until his baby is older, because he will have a record of relative uninvolvement.
Our legal system has always seen the wisdom of encouraging married parents to work together. Now it needs to recognize that divorced and never-married parents are not so different. After all, partners with children are tied together forever. My first wife and I separated in 1989. On May 1 of this year, we sat together in a maternity ward waiting room, sharing the anxiety and joy of the birth of our first grandchild. We struggled at times. But we always struggled to work together as parents.
Your emotional impulse in divorce is to hurt back, because you hurt so badly. Our legal system should work against that impulse, not encourage it. That, truly, is in the best interest of the child.
There’s a story I’ve heard countless times over the years, from both clients and colleagues. The details vary from one couple to another, but in general, the plot goes something like this:
Out of school, Amy and John each landed plum jobs in their fields. They worked hard and made excellent salaries, affording them the classic DINK (double income, no kids) lifestyle for a few years. When deciding to start a family, Amy and John discussed how best to be parents and manage their careers. It was important to both of them that one parent be home with the children. Like many of her peers, Amy chose to become a SAHM (stay-at-home mom) – and, happily at the time, left her job to begin this exciting new chapter in her life.
Over the years, John put in long hours and traveled extensively for his job, while Amy managed house, home and family. They had another child or two, and as the children thrived, Amy set aside the idea of getting back to paid work. John, meanwhile, felt increasingly unhappy under pressure to be the sole breadwinner, as the expenses of family life continued to mount and college tuitions loomed ahead. Meanwhile, in his professional life, he often met dynamic, well put together women with both full-time jobs and thriving children. He found himself wondering what Amy does all day, anyway, and why she quit her job in the first place. Perhaps he conveniently forgets that it was a mutual decision, and he may even insist that he never wanted her to quit and that it was entirely her decision.
Eventually, the marriage comes apart. Amy now faces life as a jobless single mother, and seeks alimony as well as child support.
At this point, divorce attorneys enter the story . . . and as Emma Johnson reports in her recent post at wealthysinglemommy.com, what the legal system has to say to women who chose to give up their paid jobs and now seek alimony from their ex-husbands can come as a rude awakening. Indeed, divorcing SAHMs are often in for a distinct shock when they realize that family court judges, even female ones, are not necessarily sympathetic to their plight. (Keep in mind that many female judges had their own children in day care while pursuing demanding legal careers and may not necessarily feel empathy for an educated, capable woman who deliberately gave up her earning potential.)
Johnson points out that even though many women may consider raising children a full-time job, the legal system does not. Family courts expect you to support yourself, and being a caretaker will not excuse you from that expectation.
In other words, don’t assume that because you’ve been working as a SAHM, you’ll receive alimony covering full support.
“What we often find is that many stay-at-home parents, either moms or dads, as is becoming increasingly common, go into the divorce process assuming that lifetime alimony covering full support is a given. In this day and age, however, this kind of expectation is simply not realistic,” says New Jersey family law attorney Bari Weinberger.
What’s the primary driver of this shift? Alimony reform.
“In states, such as Massachusetts, that have seen alimony reform laws passed in recent years, ‘permanent’ lifetime alimony awards are all but abolished, except under certain circumstances. In other states, including New Jersey, permanent alimonyis still available, but is far less likely to be awarded just because a parent decided to leave their career to stay home with the kids,” Weinberger explains. “What is becoming more the norm for stay-at-home moms and dads is ‘rehabilitative’ or ‘temporary’ alimony that’s put in place to help the spouse get on their feet long enough to re-enter the workforce.”
Divorcing SAHMs, confronted with this reality, have to immediately begin pursuing full-time paid work – and prove to the court that they’re doing so. Many end up taking jobs ill-suited to their education and skill sets.
Johnson concludes that she “would like to see more women buffering themselves against that situation.” How so? Keep one foot in the door of the working world, she urges. Maintain your skills and contacts, do part time work, freelance work or whatever it takes to maintain contact with the adult, professional world.
So, what happens to Amy down the road?
That depends on how she and John acknowledged and addressed the sacrifices she made in leaving her job years ago. In doing so, she gave up her salary and her peak earning years. She gave up her benefits, becoming entirely dependent on John’s employment for health insurance and retirement savings. She gave up colleagues, professional associations and memberships. She gave up all the momentum of an up-and-coming career . . . momentum she is very unlikely ever to regain. John, meanwhile, gave up none of this. In fact, he advanced up the corporate ladder quite a bit faster than he could have done without all the duties of home and family being handled seamlessly and competently by his wife.
If Amy and John recognized these realities, and were still willing to take them on, a formal postnuptial agreement would have been wise and appropriate at that time. Working out a postnup to ensure the wife’s future financial security as she leaves paid work is an excellent opportunity to talk seriously and candidly about the financial implications of that decision.
“If a couple never executed a prenuptial agreement, or does have one, but it doesn’t address spousal support, it can feel like you’ve missed the boat. Thanks to postnuptial agreements, you still have time to establish provisions to protect you financially should you make that leap to stay home and raise your kids,” notes Weinberger, adding that postnuptial agreements can pre-decide alimony amounts and address other asset division issues.
Whatever path you decide is best for you and your family, one thing is certain: you need to protect your financial future. To my mind, a prenup or postnup is an absolute legal and financial necessity for any woman choosing to give up paid work and all its associated benefits, tangible and otherwise, to stay home with the children. For more to think about, see my earlier article about why you need a postnup, and other points to consider before leaving paid work to become SAHM.
However valuable at-home parenting may be to you – and it certainly has its rewards – it is inarguable that becoming a SAHM is riskier, financially, than continuing to do fulltime paid work. Greater risk warrants greater protection, and a well-executed postnuptial agreement can provide it.
Until recently, I had a hard time understanding why there are so many alimony tax cases. I mean, after all, it is wash, right? One party has a deduction against AGI. He or she, probably still usually he, puts the recipients social number down and the recipient picks up the same amount as income. Then TIGTA issued a report on discrepancies between payers and recipients of alimony. In 2010 there were 567,887 returns deducting a total of $10 billion in alimony. Nearly half of the corresponding returns of the recipients did not match. The net difference was $2.3 billion. Of the 266,190 unmatched returns, the IRS opened examinations on 10,870. This led to further examinations of recipients in just over 2,000 cases.
So alimony is supposed to be a wash in terms of total income reported by taxpayers. It turns out that taxpayers are routinely whipsawing the IRS. That accounts for the large number of alimony cases. Actually there should be a lot more. The latest I have seen is the case of Joseph Peery which was decided last month by the Tax Court.
Mr. Peery’s divorce agreement called for him to pay 40% of his income as spousal support. The obligation terminated on his death, her death or her remarriage. So far so good. There was also a property settlement. That was a little complicated, but the only part relevant to the case is a cash payment in the amount of $63,500.
The Court went through the statutory analysis as to whether that $63,500 was deductible alimony. There is a quite a bit more detail, but the deciding factor was probably that:
The plain language of the separation agreement states that petitioner was obligated to make a $63,500 payment to Ms. Peery as a property settlement.
But it gets more complicated. There was a $63,500 check that was included in the substantiation of a total alimony deduction of $90,265.67. The check was issued eight days after the required property settlement. ”Spousal Support” was written in the memo section of the check, but that was crossed out.
Mr. Peery argued that the property settlement had been paid from other sources and that the $63,500 check was his ex-wife’s share of a capital gain. Just one of those crazy coincidences. It happens. Unfortunately, he was unable to substantiate the other $63,500, leaving the IRS unsatisfied and the Tax Court agreeing, The Court also upheld the accuracy penalty.
The check with “spousal support” written on it and crossed out makes me think that this was one of the less than 5% of the alimony mismatches that was actually examined by the IRS. I am beginning to suspect that divorce attorneys, who may be smarter than their agreements make them look, may be deliberately gaming the system. Of course the AICPA Standards of Tax Practice prevent me from giving advice based on the audit lottery. Nonetheless, My inner villain's says - If you are going to have an alimony mismatch, better you should keep it under 50 grand.
If you're considering hiding assets in your divorce, you might want to think twice. Alternatively, if you're concerned your spouse may be hiding assets from you know that you have options.
For better or worse, the reality is when marriage gets tough people often hide money. Regardless of their wedding vows, many couples experience such breakdown in their marriages that they rationalize and justify building a secret financial stash in anticipation of divorce. Why should they have to divide their marital assets or community property in the event of a divorce? One good reason is because the law says so.
Often such funds are surreptitiously held offshore or transferred to a family member or friend. Other strategies involve safe-deposit boxes, secret stock brokerage accounts, investment accounts and so on. In today's highly advanced technological world most records have gone electronic, therefore hiding large sums of money is no longer as easy as it may have once been.
Long dead are the days of flipping page by page through bank statements and other records to catch a spouse who is hiding assets. Now advanced software performs deep analysis of financial statements in seconds to find anomalies.
Some financially unfaithful spouses try to protect their retirement or pension account, claiming that they don't have one or more when they actually do. Although emails, account statements, company benefits websites are easy targets for such information gathering.
Can you imagine being separated from your adorable, furry companion? Increasingly, pets are becoming subjects of contention for couples undergoing divorce. In some cases, pets are even included in prenuptial arrangements, also known as "pre-pups."
There are nearly 179 million cats and dogs living in U.S. homes, according to the Human Society of the United States. Pet ownership has surged over the years, and many Americans would rather go to court than leave a bad marriage even more alone.
"It's essential a couple that has a pet deal with these with issues because pets aren't treated in the same way under the laws," said attorney Ann-Margaret Carrozza.
Vicki Ziegler, star of Bravo cable network show "Untying the Knot" about divorce battles, wrote in her July 2 blog: "Conflicts over pets can be just as important to divorcing spouses as any issue when both spouses have developed a special connection to a furry friend that they love and care for day-in and day-out. This feeling can be even greater when the couple has no children and the animal has taken on the role of the couple's 'child'."
She adds that it is becoming increasingly popular for divorcing couples to set up visitation schedules for their pets and negotiating specific agreements on who will be responsible for vet visits, dog park exercise and more.
In late 2013, a landmark divorce case involving a lesbian couple in New York featured a heated pet custody battle.
Trisha Murray and Shannon Travis fought for custody over their two-year-old miniature dachshund Joey, which Murray had bought and given to Travis as a gift, the New York Post reported.
Murray had financially supported the puppy, but Travis argued that the pet belonged to her because she was the initial owner.
The judge in the case decided to set aside property claims, using instead a different "best for all concerned" standard established by the earlier Raymond v. Lachmann court case, which involved pet possession.
Murray's attorney Sherri Donovan said that the divorce case was one of the first to set aside a one-day hearing to gauge to dog's best interests.
The hearing gave a chance for both parties to address important questions regarding the dog's well-being and physical care.
"I think what it makes clear is that animals are not a piece of furniture," Donovan said. Pets are a beloved member of the family. The standard that was set in the case is a good one and I advocate for it."
The case set a precedent for future pet custody battles waged during divorces.
"It's a one-day hearing," Donovan said. "But it does take into account the concerns of all and it does help settle cases. Now there is a standard. Before this case there was no standard, people kept filing litigation."
Many married couples are beginning to take defensive measures to avoid any future litigation over pets. They choose to include stipulations involving pet visitation rights and primary custody as a separate class in their prenuptial agreements, Carrozza said.
"I think it's clear animal right and pets are important to the 21st century family," Donovan said.
It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce. As time goes on, circumstances will most certainly change for the former spouses. However, not all Separation Agreements are modifiable. Before a spouse files a modification action, it is important to ascertain whether the separation agreement, or the relevant portions of the agreement, can be modified.
In Massachusetts, Separation Agreements either “merge” or survive”. When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances. When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances. The courts have stated that there must be “countervailing equities” to modify a surviving agreement. Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.
It is also possible for part of a separation agreement to merge, and other parts to survive. Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances. Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified. Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.
However, since the Alimony Reform Act went into effect in 2012, former spouses and attorneys alike have questioned if a separation agreement that survives, or a separation agreement in which the alimony provisions survive, can be modified in light of the Alimony Reform Act. Most attorneys have agreed that the answer is no, alimony cannot be modified if the agreement, or that provision, survived.
On August 22, 2014, there was a definitive answer to this question from the Appeals Court in the case of Becker v. Phelps, where the Appeals Court made it clear that the Alimony Reform Act does not change the status of the law when it comes to surviving separation agreements. In fact, the Appeals Court interprets the Alimony Reform Act of affirming the long line of case law stating that a surviving agreement can only be modified in the rarest of circumstances.
Thus, the status of separation agreements has not changed under the Alimony Reform Act. A surviving separation agreement, or a portion of a separation agreement relating to alimony which survives, remains modifiable only in the case of “countervailing equities.” This just re-affirms the importance of understanding the difference between a surviving agreement and a merged agreement, and which applies in your case.
When parents split up, and there is a dispute over who is to get primary custody, judges generally decide this based on what they see as “the best interests of the child.” One recurring question is whether a judge may consider the ideology that a parent is teaching the child — for instance, may a judge say, “It’s in the child’s best interest to be raised by parent A, because parent B would raise the child to be racist / homophobic / pro-homosexuality / Communist / jihadist”? Another is whether a judge may prefer the parent who is more religious, on the theory that it’s better for a child to be raised with religious beliefs (or whether a judge may likewise prefer the parent who is less religious, on the opposite theory).
Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha(Kan. Ct. App. Aug. 8, 2014):
In granting joint custody of the children, but giving Robert residential custody, the trial judge ruled:
“Alright. Custody of the children…. I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is your client, Mr. Probst, has made some interesting, I have to say bad or questionable choices over the pendency of this divorce. And I think that Mr. Rocha appears to be a more stable environment for the children. He also appears to understand that the benefits of education aren’t just what you learn, it’s — the socialization and interaction with other students, which are important, that cannot be achieved by home schooling.”
The trial judge also allegedly said — and this is the appellate court’s paraphrase — “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty–First Century.” Here is the appellate court’s response:
The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. We do not concur with the court’s statements as evident by the authority cited in the amicus brief [of the Home School Legal Defense Association] and also the facts of this case. While the guardian ad litem’s (GAL) report detailed Karen’s continued relationship with [Dragan] Subasic, her report also stated the children are “very polite, well-spoken, and well-behaved.” The GAL’s recommendation was “it is in the best interests of the minor children to remain here with their mother so long as there are boundaries and safeguards put in place.” There is no evidence to support the trial court’s homeschooling comments in this case.
The court of appeals nonetheless deferred to the trial court’s decision based on its non-home-schooling concerns (which apparently related to the mother’s interaction with Dragan Subasic, who apparently had a drinking problem, though the opinion is vague on exactly what Subasic may have done wrong). Still, the reasoning of the decision is firmly in the no-preference-against-home-schooling camp.
I should note that, if there is specific evidence that home-schooling is against a particular child’s best interests — for instance, the home-schooling is causing huge tensions between that parent and the child, or a child who had done great in school before is now doing poorly on tests while he is being home-schooled and there is reason to think that homeschooling is the cause — likely all courts would consider that as a factor against the homeschooling parent. (Conversely, if a child is thriving while being home-schooled by one parent, and the other parent seeks custody and would stop the home-schooling, that would likely be a factor in favor of the home-schooling parent.) The question here is whether, in the absence of evidence of specific harm or benefit from home-schooling, family court judges can rely on their own general estimation of whether home-schooling is usually better or worse for children than other schooling.
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