When Parents Disagree: Practical S S t trategies for Advocates - - PowerPoint PPT Presentation

When Parents Disagree: Practical S t t i f Ad t S trategies for Advocates

B i J M L hli E Brian J. McLaughlin, Esq. Law Offices of Brian J. McLaughlin Mary W. S heridan, Esq. y S , q Law Office of Mary W. S heridan, Esq.

I ill Issues we will cover

• Intake
• Intake
• Basic litigation process
• Issues involving child support
• Issues involving child support
• Best interest of the child-visitation plans, etc.
• Custody and unmarried parents
• Custody and unmarried parents
• S

tudent records

• Transition planning
• Transition planning
• Child vision
• Guardianship
• Guardianship

INTAKE S UGGES TIONS INTAKE S UGGES TIONS

M i d hild’ h ?

Married to child’s other parent? Are there any actions pending between you and the

• ther parent(divorce contempt modification)?
• ther parent(divorce, contempt, modification)?

Any orders in place regarding custody and parenting? Restraining Orders? Anything need to know about other parent?

M i d P t Married Parents

H i i i b ?

How is communication between parents? Do you differ in opinion frequently about services and

treatment for your child? treatment for your child?

How do you usually navigate this? Is there anyone you consult with when you can’ t come

to an agreement?

B i liti ti Basic litigation process

il l i File complaint Motion for temporary orders Discovery process Divorce process focuses on best interest of the child p If custody is an issue, a GAL may be appointed to report to the court or the judge may communicate with parents Settlement or trial

C t d Custody

LEGAL PHYS ICAL

LEGAL vs. PHYS

ICAL

Joint legal custody is norm MGL c. 208 s. 31 Joint Physical Custody + Parents living in different

y C y g districts

603 CMR 28.10

J i t L l C t d Joint Legal Custody

B h h i h Both parents have right to:

Be members of their child’s IEP team Be given notice of team meetings Exercise right to due process

g p

Receive progress reports

C di IEP/ l

Can agree or disagree to IEP/ placement

Child t Child‐support

l l i 2009 hild id li Relevant law is 2009 child‐support guidelines Based on mom having primary custody and dad with visitation Both parties submit financial statements and then their incomes are put into a formula https://wfb dorstate ma us/DORCommon/Worksheets/CSE/G https://wfb.dor.state.ma.us/DORCommon/Worksheets/CSE/G uidelines.aspx

Child S t G id li Child S upport Guidelines

If h i ill h h i l d h id li

If the parties will share physical custody the guidelines

are calculated both ways and the difference is paid but

• ne parent to the other

Guidelines are specific about what child support is

intended to cover

If there are expenses that are not covered by child

support, BUT the parents agree to share them, this can be part of the separation agreement be part of the separation agreement

Wh th id li d ’t fit When the guidelines don’t fit

h id h h id li d Each party may present evidence as to why the guidelines do not apply Factors in support of deviation Factors in support of deviation Court must make specific findings as to why the guidelines are not applicable not applicable.

a child has special needs or aptitudes; a child has extraordinary medical or other expenses (advocate’s fees)

What does “best interest” actually mean

Chapter 209, sec.28 Judges have broad discretion in determining the best interests of the child. See Bak v. Bak, 24 Mass. App. Ct. 608 (1987); see also Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000).

Factors for considering “best interests of the child” child

Needs of the child

Age sex and stage of development of the child Age, sex and stage of development of the child Physical or mental health needs Preservation of child’s routine Child’s ties to school and community Child s ties to school and community Special relationships with extended family or half siblings Child’s present state of adjustment in home, school, and community community

Abilities of both parents

Mental and physical health of the parents Mental and physical health of the parents Historically who has been the primary caretaker Parent’s work schedule or commitments outside the home

P ti Pl Parenting Plan

h i i l ? What is a parenting plan? ‐A parenting plan is a written document which dictates the visitation schedule for your child Things to consider in visitation schedule for your child. Things to consider in parenting plans include: holiday schedules, pick‐up and drop‐

• ff times, child’s birthdays, vacation schedules, etc.

PRACTICE NOTE: It could be helpful for advocates to review parenting plan in the initial intake process

Why is this different for disabled hild ? children?

Consistency Consistency

• For folks with disabilities consistency is key, in particular for folks with autism.

Without a consistent routine, the child may struggle.

Double of everything y g

• In particular for folks with physical disabilities, you’ll need to have double of

everything or have to trek everything with you: wheelchair charger, ramps on new home and any other medical equipment

Potential for disinvolved parent having to re engage Potential for disinvolved parent having to re‐engage

• There may be one parent whose more involved in the child’s day to day needs.

The “disinvolved parent” may need to reengage with the child and learn about the child’s needs and behaviors

Communication

• Parents need to be able to communicate with each other. This is the case in

any arrangement, however, with disabled children, particularly those with severe medical issues or behaviors, parents need to remain on the same page and in contact with each other and in contact with each other

P ti N t Practice Note

L k P i Pl i i

Look at Parenting Plan provisions Court Records?

C t d d U i d P t Custody and Unmarried Parents

i d f h diffi l d Unmarried parents often present the most difficult cases and challenges These cases are more likely to involve one parent who is less These cases are more likely to involve one parent who is less invested and involved in the child’s life, but still may cause delays in finalizing a child’s educational plans etc.

C t d d U i d P t Custody and Unmarried Parents

The first step in a case with unmarried parents is to The first step in a case with unmarried parents is to determine paternity Then a court may award custody pursuant to M.G.L. c. y y p 209C, § 10 It is more likely that the court will award one parent t d i ith i d t J i t t d custody in cases with unmarried parents. Joint custody may be granted upon agreement between the parties or if the parties have demonstrated ability to parent together together. If there has been no adjudication of paternity, the mother has custody

C t d d U i d P t Custody and Unmarried Parents

M G L 209C 10(b)

M.G.L. c. 209C s. 10(b) Presumption of custody with the mother Ramifications

Student Records

M.G.L. c. 71, § 34H and 603 CMR 23.00

non custodial parent has a right to review student records non‐custodial parent has a right to review student records based on a written request to school principal, unless:

the parent has been denied legal custody or has been ordered to i d i it ti b d th t t th f t f th t d t d supervised visitation, based on a threat to the safety of the student and the threat is specifically noted in the order pertaining to custody or supervised visitation, or the parent has been denied visitation or the parent has been denied visitation, or the parent's access to the student has been restricted by a temporary or permanent protective order, unless the protective order (or any subsequent order modifying the protective order) specifically allows subsequent order modifying the protective order) specifically allows access to the information contained in the student record, or there is an order of a probate and family court judge which prohibits the distribution of student records to the parent distribution of student records to the parent.

St d t R d ti d Student Records continued

“ h ll h h i h i d d ” h ld “Parent shall have the right to review student records” should be included in a separation agreement to guarantee parent access to records Even though it is the law, the standard language in the separation agreement will ensure that the parent has access Practically speaking, the separation agreement governs the issue

209A R t i i O d 209A Restraining Orders

O i h h

One parent against the other Order prohibiting contact w child operates to restrict

access to records access to records

Practice Note: Team meetings via phone conference

Ed ti l P t Educational Parent

k h d i d h It may make sense to have one parent designated as the “educational parent” in order to finalize decision‐making If the agreement does not name one parent as the educational If the agreement does not name one parent as the educational parent, both parents will have to make decisions This may be vital to ensure that the child obtains services as This may be vital to ensure that the child obtains services as quickly as necessary Language for Advocate Contract Language for Advocate Contract

P t C di t Parent Coordinator

N i i i MA

No statutory provision in MA Attorney or Mental Health Professional Can be involved in case for years Parents can agree to work with PC or court may appoint

g C y pp (though no statutory authority)

St t i f Ad t Strategies for Advocates

‘ b f id k h i k if d d d Don‘t be afraid to ask the question. Ask if mom and dad are both involved in the child’s life and how things are between the two of them. Both parents need to sign off on any settlement with the school or any agreement and you don’t want to be at the bargaining table without both parents on board. Try to figure out if there are any areas where parents AGREE

T iti Pl i Transition Planning

"a coordinated set of activities for a student which promote successful movement from school to post‐ school activities”

Can be written as early as age 14, but must be written by 16 age 16

This is a critical stage when parents must coordinate with each other as state resources stop after the age with each other as state resources stop after the age

• f 22 and a child “ages out”

Parents have to communicate about what their hild’ biliti d li it ti d h th child’s abilities and limitations are and how they can best be engaged in society Emancipation in Massachusetts Emancipation in Massachusetts

Child Vi i Child Vision

h b i i h h h Both parents may be contentious with each other If you can refocus the parents on their child then the child’s vision is heard and adequately addressed in the IEP with the vision is heard and adequately addressed in the IEP with the appropriate goals and benchmarks. Strategies Strategies

I it ti d fi d Incapacitation defined

Incapacitation Intellectual disability Incapacitation

An individual, who for reasons

• ther than advanced age or

Intellectual disability

An individual who has a substantial limitation in present functioning beginning before minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or functioning beginning before age 18, manifested by significantly sub‐average intellectual functioning existing concurrently with related communicate decisions, to such an extent that the individual lacks the ability to meet essential requirements for: concurrently with related limitations in 2 or more of the following applicable adaptive skill areas: communication, self‐ care, home living, social skills, essential requirements for: physical health, safety, or self care, even with appropriate technological assistance care, home living, social skills, community use, self‐direction, health and safety, functioning academics, leisure, and work.

N t i l New terminology

L tt f i t t tifi t f di hi Letters of appointment: certificates of guardianship Protected person: individual for whom a conservator has been appointed appointed Ward: refers to a minor for whom a guardian is appointed, solely because they are under 18 Mental retardation: removed from statutes and replaced with “person with intellectual disability

P t ti l l l i Potential legal issues

Where suit for guardianship may be brought Where suit for guardianship may be brought

venue

Who may petition y p

Incapacitated person or any person interested in the welfare of the person

Right to counsel for incapacitated person Right to counsel for incapacitated person Notice regarding appointment of counsel Respondent’s right to attend hearing Respondent s right to attend hearing Objections to Motion for Temp. Guardianship/Petition for Appt. of Guardian for Incapacitated Person

G di d Lit Guardian ad Litem

C i G i i h di i f h Court may appoint a GAL to investigate the condition of the incapacitated person and to make appropriate recommendations to the court

D ti f G di Duties of Guardian

Make decisions regarding respondent’s “support care Make decisions regarding respondent s support, care, education, health and welfare” and consider the expressed desires and personal values of the respondent and respondent’s best interest Exercise reasonable care, diligence and prudence Protect and preserve the person’s right of freedom and religion religion Exercise authority only as necessitated by the respondent’s mental and adaptive limitations, and to the extent possible, encourage the respondent to participate in decisions act encourage the respondent to: participate in decisions, act

• n his /her behalf, and develop or regain the capacity to

manage personal affairs

L l B d i f G di hi Legal Boundaries of Guardianship

Immunities of Guardian

Li it ti f G di ’ P

Immunities of Guardian

Guardian is not personally liable for the respondent’s

Limitations of Guardian’s Power

• Cannot revoke a health care

proxy without express authority from the court Health care

liable for the respondent s expenses. Guardian is not liable to third

from the court. Health care decision of the health care agent trumps that of a guardian.

• No guardian has authority to

d i i

persons for the acts of the incapacitated person by reason of the relationship.

admit or commit an incapacitated person to a mental health or intellectual disability facility.

• Guardian needs specific Probate

Court authority to admit an incapacitated person to a nursing facility.

Limitations of Guardianship i d S b i d J d continued: S ubstituted Judgment

N di t t h No guardian, temporary or permanent, has the authority to consent to treatment for which substituted judgment may be required j g y q (ex. treatment with antipsychotic drugs). Court shall authorize treatment which it finds that incapacitated person would consent to that incapacitated person would consent to such treatment, if not incapacitated

Court will “step into the shoes” of the i it t d incapacitated person

Counsel is provided for the respondent

Wh b di ? Who may be guardian?

May May NOT May

Respondent’s most recent nomination in durable Power f Att

May NOT

Any person who is currently being investigated or has

• f Attorney

Priority of guardianship, If suitable: spouse of the IP, t f th IP d being investigated or has charges pending for: committing an assault and battery that resulted in serious parent of the IP, and any person the court deems appropriate Wh i “b i d bodily injury to the respondent, or neglect of the respondent Whoever is “best suited to serve” will take priority over a person with “higher priority” Interpreted to refer to criminal investigation

O d f A i t t Order of Appointment

i i d S h C d In priority order: Spouse, parent, any person the Court deems appropriate Also look to will and last power of attorney Also look to will and last power of attorney Court has ability to pass over person with priority

Li it d G di hi Limited Guardianship

Th t f l h th it The court confers only as much authority as appears necessary to alleviate the problems caused by the person’s incapacity Encourages development of maximum self‐ reliance and independence and makes orders l t th t t it t d b th

• nly to the extent necessitated by the

respondent’s limitations Court may on its own motion or on motion of Court may on its own motion or on motion of the IP or other interested person, limit the powers of a guardian and create a limited di hi guardianship

Temporary vs. Permanent G di hi Guardianship

Temporary Permanent Temporary

Purpose: to avoid “substantial harm to the health, safety or welfare” of the IP occurring prior to the return

Permanent

Strict notice requirements

the IP occurring prior to the return date May be appointed for 90 days, or longer upon finding of “ d ”

Requires heavy reporting on condition of the IP to the court and of his or her estate,

“extraordinary circumstances” Court may for good cause shown extend the appointment for additional 90 day periods

annually thereafter Court shall establish a system for monitoring guardianships

additional 90 day periods Pre‐ and post‐appointment notice is different for temporary guardians if emergency

for monitoring guardianships, including the filing and review

• f annual reports

S i l G di Special Guardian

C i i l di i h i h

• Court may appoint a special guardian, with or without

notice, if an appointed guardian is not effectively performing duties and the welfare of the IP requires immediate action

• Authority of any guardian previously appointed is

d d l S i l G di h th it suspended as long as S pecial Guardian has authority

• Appointment of special guardian may be for a period of

up to 90 days or longer upon a finding of extraordinary up to 90 days, or longer upon a finding of extraordinary circumstances

T i ti f G di hi Termination of Guardianship

G di hi i d h f h di

• Guardianship terminates upon: death of the guardian or

IP , determination of incapacity of the guardian, determination that IP is no longer incapacitated, removal of guardian by Court for good cause, or resignation of the guardian, with Court approval M di l tifi t f t i ti f di hi

• Medical certificate for termination of guardianship

and/ or conservatorship required if termination is based

• n lack of incapacity

R i d d t ti Required documentation

di l C ifi Cli i l Medical Certificate or Clinical Team Report Medical Certificate must be filed with the court within 30 days

• f the exam taking place
• f the exam taking place

Clinical Team Report is used when the individual has an intellectual disability This report must be filed with the court intellectual disability. This report must be filed with the court within 180 days of the report being written.

Fi l T k f G di hi Final Takeaway for Guardianship

d d b h diffi l hi i f As advocates, we need to remember how difficult this is for parents, realizing your son or daughter can’t make decisions.

S i l N d T t (S NT) S pecial Needs Trusts (S NT)

T

t l ti hi ith t t t

Trust = a relationship with respect to property Created when a person gives legal title of a piece of

property to a trustee property to a trustee

Trustee has duty to hold and manage the property for

the benefit of others

In S

NT , beneficiary is a person with a disability

S

NT established by individual with disability or a family S NT established by individual with disability, or a family member, legal guardian, or the Court

Funded by assets belonging to the beneficiary

S NT C ti d S NT Continued…

T f h f ll di i h i di

Trustee often has full discretionary authority regarding

distributions that are made from the trust

S

NT distributions complement but do not replace

S

NT distributions complement , but do not replace, government benefits (S NT is supplemental but not supportive)

Placing property in trust helps protect the property

from creditors, and allows a person to benefit from the property without being responsible for its management property without being responsible for its management

http:/ / www.specialneedsalliance.org/ resources

A l i th C t Applying the Concepts

h i l 1 Hypothetical 1: Hypothetical 2:

Q ti ? Questions?

C B i 617 236 5847 Contact Brian at 617-236-5847 Brian@ bmj rlaw.com Contact Mary at 508-507-8222 C y marywsheridan@ gmail.com