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Critcal Cases in Massachusetts Family Law for E&F Guardians Ad Litem

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Critcal Cases in Massachusetts Family Law for E&F Guardians Ad Litem CRITCAL CASES IN MASSACHUSETTS FAMILY LAW FOR E&F GUARDIANS AD LITEM: A mental health professional’s perspective on how appellate law informs GAL investigations and evaluations. Robert A. Zibbell, Ph.D.© Critical Cases in Appellate Law for GALs 2 “…nothing between human beings isn’t complicated and there’s no way to speak of human beings without simplifying and misrepresenting them.” Joyce Carol Oates, We Were the Mulvaneys. “…present-day knowledge about human behavior provides no basis for the kind of individualized predictions required of the best-interests standard.” Robert Mnookin,(1975), “Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy” Critical Cases in Appellate Law for GALs 3 Critical Cases in Appellate Law for GALs 4 INDEX OF TOPICS AND CASES1 FOREWARD…………………………………………………………………….7 I. CUSTODY AND VISITATION………….………………………………….11 ROLDE v. ROLDE (1981)………………………………………………11 BAK v. BAK (1987)……………………………………………………..15 ARDIZONI vs. RAYMOND (1996)…………………………………….19 FREEDMAN vs. FREEDMAN (2000)………………………………….23 CUSTODY OF ZIA (2000)……………………………………………...27 II. REMOVAL FROM THE COMMONWEALTH………………………...…31 HALE V. HALE (1981)…………………………………………………31 YANNAS v. FRONDISTOU-YANNAS (1985)………………………...35 ROSENTHAL v. MANEY (2001)………………………………………39 D.C. vs. J.S. (2003)………………………………………………………43 III. DOMESTIC VIOLENCE…………………………………………………..49 CUSTODY OF VAUGHN (1996)………………………………………49 MALOOF V. SALIBA (2002)…………………………………………..53 CARE AND PROTECTION OF LILITH (2004)……………………….57 IV. EXPERT TESTIMONY……………………………………………………61 COMMONWEALTH V. LANIGAN (1994)……………………………61 ADOPTION OF HUGO (1998)…………………………………………63 THERESE CANAVAN'S CASE (2000)……………………………….67 V. RELIGIOUS ISSUES………………………………………………………71 FELTON V. FELTON (1981)…………………………………………..71 KENDALL V. KENDALL (1997)……………………………………...75 SAGAR V. SAGAR (2003)……………………………………………..79 VI. JUDICIAL IMMUNITY FOR GALs………………………………..……83 LALONDE V. EISSNER (1989)………………………………………..83 SARKISIAN V. BENJAMIN (2005)…………………………………...85 VII. PRIVILEGED COMMUNICATION……………………………………89 ADOPTION OF DIANE (1987)………………………………………..89 ADOPTION OF SAUL (2004)…………………………………….…...93 VIII. GRANDPARENTS' RIGHTS……………………………………….….97 JONES V. JONES (1965)………………………………………………97 BLIXT V. BLIXT (2002)………………………………………………99 DEARBORN V. DEAUSAULT (2004)………………………………103 1 Some cases are listed under more than one category, as the decision applies to multiple issues. Critical Cases in Appellate Law for GALs 5 IX. DE FACTO PARENTING………………………………………………..107 JONES V. JONES (1965)........................................................................97 C.C. V. A.B. (1990)...............................................................................107 YOUMANS V. RAMOS (1999)……………………………………...109 E.N.O. V. L.M.M. (1999)…………………………………………….113 X. DEFINITIONS: BEST INTEREST, MODIFICATIONS, CHILDREN'S PREFERENCES………………………………………………………………117 DELMOLINO V. NANCE (modification) (1982)……………………117 ARDIZONI V. RAYMOND (child's preference) (1996)………………19 CUSTODY OF KALI (best interest) (2003)………………………….119 XI. APPENDED RECORDS………………………………………………….127 ADOPTION OF ASTRID (1998)…………………………………….127 XII. GAL ISSUES…………………………………………………………….131 GILMORE V. GILMORE (1976)……………………………………131 KENDALL V. KENDALL (1997)……………………………………75 SARKISIAN V. BENJAMIN (2005)…………………………………85 XIII. WAIVER OF CONFIDENTIALITY……………………………...........133 COMMONWEALTH V. LAMB (1974)……………………………133 AFTERWORD………………………………………..………………………137 RELEVANT GENERAL LAWS………..……………………………………145 Child Protection G.L. c. 119: §21, 24-29: child protection issues…………………………………....145 G.L. c. 119: §39D: grandparent visitation statute……………………………….….151 Marriage and Divorce G.L. c. 208: § 28: children; care, custody and maintenance……………………… 153 G.L. c. 208: § 31: custody of children; shared custody plans…………….….…...155 G.L. c. 208: § 31A: custody and visitation of children with abusive parent……… 157 G.L. c. 265: § 13K: assault and battery definitions……………………………….. 158 Children born out of wedlock G.L. c. 209C: § 1: declaration of purpose; definition………………………….…..159 G.L. c. 209C: § 10: best interest in unmarried parent situation……………………159 G.L. c. 209C: § 20: modification of judgment……………………………………..161 G.L. c. 209C: § 32: support, custody and maintenance orders…………………….162 Adoption of Children G.L. c. 210: § 3: dispensing with required consent in certain cases……………….165 Privileged Communications: G. L. c. 112: § 135B: confidential communications; testimonial privilege………..171 G. L. c. 233: § 20B: privileged communications; patients and psychotherapists….173 About the author…………………………………………………………………………….177 Critical Cases in Appellate Law for GALs 6 FOREWARD The inspiration for this casebook began in 1991, when I had the privilege of attending a series of seminars led by Thomas Grisso, Ph.D. and Alexander Greer, J.D. at Worcester State Hospital-UMASS Memorial Medical Center’s post-doctoral program in forensic psychology (I was a mid-career, post-doctoral fellow in the Child and Family Forensic Program). One of the tasks of the students was to read the significant case law, both federal and state (Massachusetts) that pertained to issues that (adult) forensic psychologists would be expected to evaluate. These included such topics as criminal responsibility and competence to stand trial, inter alia, as well as cases related to the assessment of youths in the juvenile court. That program led to an appreciation of the factual issues that judges consider in making decisions and how legal thinking had evolved (or not) in relationship to the development of social science research. It also allowed me, as a mental health professional, to begin to understand the language of the law and the reasoning that lawyers applied to issues that existed at the juncture of mental health and the law. Since I was primarily concerned with the interface of psychology and family law, I began reading Massachusetts cases (and a few Federal decisions) that pertained to those issues, such as in the areas of child custody, parental access, removal, termination of parental rights and the like. Over the next decade other issues emerged in the law. Some were new (e.g. de facto parenting, same sex parenting, domestic violence), while others reflected an evolution in previous law (e.g. removal, role of religious differences in parenting, privileged communication). It became clear that any professional who was assigned the task of assessing families in family or juvenile court, whether through an investigation (Category F) or evaluation (Category E), needed to know the relevant case law and statutes. New training requirements for investigators and anticipated ones for evaluators mandate knowledge of the relevant laws and cases.2 The recent revision of the AFCC standards for child custody evaluations also requires knowledge of relevant case law.3 I believe that a collection of significant case summaries and statutes in one volume would serve to educate and guide the family investigator or evaluator in the fulfillment of his or her role as the “eyes and ears” of the court. The structure of the project would also permit the addition of new cases as they arise. The casebook is intended to serve as an adjunct to the Category F training materials, and eventually, for Category E, but should be useful to those who have already undergone those trainings. It is not an exhaustive collection, as I chose the cases I considered to be most relevant with respect to the general experience of GALs. The plan of the casebook is to group the cases by topic, although a few cases relate to more than one legal issue. Pertinent statutes are referenced in the body of the casebook and can be found in the last chapter. Each case contains a summary of the important facts, the decision of 2 Medeiros, L., Elsen, S., Winchester, M, & O’Leary, S. Guardian ad Litem Case Summaries, in GAL Training for Category F Matters, presented in Springfield, MA, May 5, 2005. Handbook published by Massachusetts Continuing Legal Education, Inc., Boston. Standard 7B, at 22. 3 Association of Family and Conciliation Courts (2005). AFCC Model Standards of Practice for Child Custody Evaluations, draft copy #3. at 4. Available at www.afccnet.org Critical Cases in Appellate Law for GALs 7 the Appeals or Supreme Judicial Court, and a commentary at the end. The goal of the commentary is to highlight those issues most important for GALs, so that attorneys looking for specific legal arguments will need to look to the cases themselves. Some comments relate to commonalities in thinking or logic between apparently disparate cases. In these ways, the casebook is different from that which Richard Packenham authored for MCLE, and which he has updated annually.4 However, where it is relevant I cite his work and reference it in the text. The casebook is more selective and more detailed than the cases compiled for the Category F training5, although I have referenced some of the same cases. In addition, the book is unbound and in loose-leaf form, so that readers can remove cases as they wish and new relevant cases can be added as the Courts decide them. I completed the initial summaries of the cases and then several consultant attorneys edited many of the summaries (see acknowledgments), although I made the final edit. Lastly, in the Afterword, I summarize my impressions about some of the larger issues in the case law and the differences in clinical and legal perspectives and language, and I present some thoughts about GALs’ addressing ultimate legal questions. While many others (see below) have shared their
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