WEBERG LAW

Family Law in Massachusetts:
A Bird’s Eye View

Family Court Authority

There are over 80 courthouses in the Commonwealth of Massachusetts. Understanding which court to go to with your matter is the critical first step toward understanding the process. 

Since 1978, The Massachusetts Probate and Family Court has been organized as a department of the Massachusetts Trial Court. There are fourteen divisions of the probate and family court, one division in each county in Massachusetts. Some of the more populous divisions have a main courthouse and one or more additional locations, known as satellites. For example, Middlesex County has its main courthouse in Woburn and a satellite in Lowell. Where a particular case is heard depends on the town in which the litigant or litigants reside, or where the parties last lived as a couple. 

The Massachusetts Legislature has given the probate and family courts the authority to hear actions for divorce, annulment, guardianship, child support, custody, parentage, care and protection, probate of wills, and name change petitions. The probate and family courts can also hear some cases that the district and/or superior courts also handle, such as restraining orders, equity disputes, certificates of marriage without delay, and guardianship of minor children who are involved in Juvenile or District Court matters. 

The justices of the probate and family court are authorized to issue orders and judgments in cases under their jurisdiction. These orders and judgments are final unless and until they are reversed by an appellate court after one party appeals. Appeals from probate and family court judgments are rarely successful. Refusing to or failing to follow a judge’s order or judgment may result in the noncompliant party being found in contempt.

Divorce

Divorce actions make up a large part of the family court docket. Our Massachusetts divorce law primer can be found here. 

Parentage (Formerly Known as ‘Paternity’) 

Parentage refers to the determination of the legal parents of a child and all according rights and responsibilities that flow from that determination. This does not always mean simply determining the biological parents of a child. With the recent changes to Massachusetts parentage laws, more parents are able to sign voluntary acknowledgments of parentage (VAP) at the hospital upon a child’s birth. Before this law, non-birthing same-sex parents had to adopt their child in order to establish their rights as the child’s parent. Now, like an unmarried biological father, a non-birthing parent can sign a VAP at the hospital, establishing their status as the child’s legal parent. 

In families where parentage is in dispute, either party may file a complaint with the probate and family court to determine parentage. Determinations of parentage may look at such factors as genetic marker testing and the role of a person in a child’s life (whether they are a parent-in-fact). 

Guardianship and Conservatorship

Guardianship is a legal relationship established by the court, wherein a guardian is appointed to care for a minor or incapacitated person who cannot manage their own affairs. This legal process is often sought for minor children whose parents are deemed unfit or for incapacitated adults suffering from mental illness or physical disabilities. The appointed guardian assumes the responsibility of making essential decisions regarding the individual’s personal and medical care, ensuring their basic needs are met, and advocating for their rights. 

Guardianship matters are often heard in the probate and family courts but can also be handled by the district and juvenile courts if a minor child is involved in a matter in one of those courts. In Massachusetts, the scope of guardianship can be limited, allowing for the incapacitated person to participate in decision-making to the extent of their abilities, or general, indicating a complete lack of competency to make independent decisions. The person serving as the guardian will either be appointed by the court or appointed by a parent or other guardian. Guardianship does not terminate parental rights. 

Conservatorship focuses on managing the financial affairs of the individual rather than their personal welfare, distinguishing it from general guardianship. While guardianship and conservatorship are related, they serve distinct purposes. A guardian is responsible for making personal and medical care decisions for an incapacitated person, including their living arrangements and daily needs. The guardian must consider the individual’s wishes and strive to help them regain decision-making capacities. In contrast, a conservator is appointed to manage the financial affairs of the individual, making decisions about their money, property, and business matters. In some cases, an individual may have both a guardian and a conservator, with each managing different facets of the person’s life.

Separate Support

In some cases, married people have separated but are not seeking a divorce. In those cases, the court may order what is called “separate support.” In many ways, separate support is like alimony. It differs in that it is not part of a divorce action. If a separated spouse wants to ask for separate support, they will need to file a Complaint for Separate Support. 

The Massachusetts Probate and Family Courts has the authority to order separate support for spouses who are able to demonstrate the following: 1) that the plaintiff is married, 2) that the defendant is the plaintiff’s spouse, 3) and that one of the following is true: that your spouse failed to provide suitable support to you without justifiable cause, that your spouse has deserted you, that you are living apart from your spouse for justifiable cause, or that you have justifiable cause to live apart from your spouse. “Justifiable cause” might include such reasons as cruel and abusive treatment, confirmed habits of intoxication, adultery, or desertion. 

If the judge decides to award separate support, the parties net incomes, assets, expenses, and other relevant factors will be considered. A full list of these factors can be found in G.L. c. 209 sec. 32. 

Adoption

Massachusetts General Laws Chapter 210 largely governs adoption in the Commonwealth. Massachusetts recognizes several types of adoption, each with its own requirements and processes. Domestic infant adoptions typically involve placing a child through a licensed agency, while international adoptions may involve additional complexities when adopting a child from another country. Foster care adoptions, which are facilitated through the Department of Children and Families (DCF), may require further steps to ensure the child’s best interests are upheld. It is important to note that Massachusetts is classified as an Agency State, meaning that all adoptions must be carried out through a licensed adoption agency or DCF. Prospective adoptive parents should familiarize themselves with these various types of adoption to determine the best path for their family. 

To adopt in Massachusetts, prospective adoptive parents must meet specific eligibility criteria, starting with being at least 18 years old. The adoption process includes a thorough home study, which evaluates the living conditions and overall suitability of the prospective adoptive parents. Although there are no strict age or marital status requirements, adoption professionals often prefer applicants aged between 22 and 50. Importantly, single individuals as well as married couples are eligible to adopt, although married couples usually must adopt jointly. Massachusetts adoption laws are progressive and inclusive, with no restrictions based on sexual orientation or gender identity, enabling a broader range of individuals to participate in the adoption process. In some instances, where appropriate, the court might allow the child’s voice to be heard regarding the adoption. The appeals courts have upheld decisions of the trial court to weigh the opinions of children in their early adolescent years. 

Name Change

It is legal for a person in Massachusetts to informally change their name, so long as it is not for an illegal or dishonest purpose. The common law allows people to choose new names without resorting to court process. However, to get one’s new name legally recognized, a person must petition the probate and family court for a formal name change. Before 1977 Massachusetts courts would not allow a name change petition, with two exceptions: 1) the marriage or divorce of a woman, or 2) the adoption of a child. 

Now, anyone living in Massachusetts may petition the probate and family court for a name change. These petitions will be allowed unless it is “inconsistent with public interests.” G. L. c. 210, Sec. 13. One example of a petition not being allowed was brought by a person convicted of murder and serving a life sentence. In that case, the court decided that the name change would cause confusion in the prison records system and was thus inconsistent with the public interest. But, for most adults, a name change petition will be allowed. 

A more complex issue is when a parent seeks to change the name of a minor child over the objection of another parent. The courts sometimes see parents wishing to change a child’s last name to that of a stepparent, arguing that the stepparent has served more of a parenting role than the biological parent after whom the child is named. The courts will consider these requests under a “best interest of the child” standard. 

Annulment

An annulment is a legal proceeding that declares a marriage void, effectively rendering it as if the marriage never happened. In Massachusetts, the law governing annulment is encapsulated in G.L. c. 207, § 14. Unlike divorce, which terminates a valid marriage, annulment is applicable to marriages that are deemed void or voidable. A marriage can be considered void if it was never legally valid, such as in cases of bigamy or incest. Conversely, a voidable marriage is valid until annulled, often due to critical issues like fraud or incapacity at the time of marriage.

To qualify for an annulment in Massachusetts, the marriage must meet certain criteria, specifically being classified as void or voidable. Grounds for a void marriage include serious violations like bigamy or incest. In contrast, voidable marriages may arise from issues such as lack of mental capacity, fraud, or impotence. Furthermore, the individual petitioning for an annulment cannot merely seek one due to a desire for dissolution after a short marriage. To successfully obtain an annulment, clear evidence supporting the claim must be presented. Understanding the specific legal grounds required is crucial for petitioners aiming to annul a marriage.

In Massachusetts, several common grounds for annulment can be identified, including fraud, impotence, lack of mental capacity, and underage marriage. Fraud occurs when one spouse deceives the other about critical facts central to the marriage, such as intentions or circumstances surrounding the union. Impotence, defined as the inability of one spouse to engage in sexual intercourse, serves as a legitimate reason for annulment. Additionally, if one party was not of legal age to marry, without appropriate court and parental consent, the marriage can be annulled. Understanding these grounds is vital for anyone considering annulment.

Grandparents Visitation

Grandparent visitation refers to the legal rights that allow grandparents to petition for court-ordered visitation with their grandchildren. In Massachusetts, this is particularly relevant when circumstances such as divorce, separation, or the death of a parent restrict the grandparents’ contact with their grandchildren. The law does not automatically grant grandparents the right to visit; instead, they must demonstrate a compelling reason for the court to intervene. This can include proving that a significant relationship exists between the grandparent and grandchild, and that denying visitation would cause the child significant harm.

The legal framework for grandparent visitation is outlined in M.G.L. c. 119, § 39D. This statute allows grandparents to petition for visitation rights under specific circumstances, such as divorce, separation, or the death of a parent. It is imperative for grandparents to establish that the lack of visitation would result in significant harm to the child. 

To successfully seek visitation rights in Massachusetts, grandparents must demonstrate several key factors. They need to establish that granting visitation is in the child’s best interest and that they had a significant relationship with the child before filing the petition. Additionally, it must be shown that the absence of visitation would cause substantial harm to the child’s health or welfare. The courts require compelling evidence to support these claims, as parents generally retain primary authority over who interacts with their children, thus making it essential for grandparents to substantiate their requests for visitation rights.

Restraining Orders

The Probate and Family Courts of Massachusetts have concurrent jurisdiction with the district courts over G.L. c. 209A restraining orders and c. 258E harassment orders. That means that a party may seek a restraining order in either the district court or the probate and family court in the jurisdiction where they reside. Often, if a restraining order is sought in the district court, but there is a case involving the same parties pending in the family court, the district court will transfer the restraining order to the family court so that it can be heard by the same judge that is presiding over the family law case.