Modifying Child Support or Custody/Parenting Time Orders

It is tough to know when it’s appropriate to modify a past child support or custody/parenting time order. A standard that courts look at is “a material change in circumstances,” which may seem vague and overbroad to many people. Here are a few examples of situations that may warrant modifying a support order: One parent changes jobs or obtains a promotion and makes a significant amount more or less than before; when a child is around 16 years old and planning to continue his/her education; if a child spends more or less time with one parent than before (the more time a child spends with one parent, in theory, the more the other parent should have to contribute to assist that parent who has the child for more time); and the length of time from the original court order.

If college is not discussed or provided for in a court order, it can be revisited later when the child is in high school and considering pursuing higher education. At that point, it becomes much more relevant and costs can be ascertained rather than be merely speculative.

Here are a few examples of situations that may warrant modifying a custody/parenting time order: Extracurricular activities are getting in the way of a parent’s time with his/her child and the other parent isn’t accommodating to switch days; an old parenting schedule or holiday schedule doesn’t work as the child gets older or traditions have changed; vacation or holiday time is absent from the agreement and becomes an issue later on; disputes arise about taking the child on vacations out of state; if either parent moves out of state or has a new job requiring a new schedule/parenting plan; or any type of disagreement about how the child should spend time with each parent, which never made its way into an official court order.

If there are issues with the original court order and the old order doesn’t seem to work anymore for your situation, a modification may be appropriate, especially if the other parent does not want to accommodate a request for an unofficial change to the existing order. Child support and custody/parenting time can be easily modifiable, since there are many situations that may arise that can be interpreted as “material” and significant in nature.

If you need any assistance or have any questions about a child support or custody modification, please contact our office at 413-583-5196 or info@govelawoffice.com.

Divorce Options: Litigation

In our first two posts about divorce options, attorney we discussed Limited Assistance Representation and mediation. In the last post in this series, we examine the most common approach to divorce.

The final and most common option is litigated divorce. Litigation does not necessarily mean that the case goes to trial, and often times it does not. The process to initiate a divorce is that one spouse needs to file a Complaint for Divorce with the Probate and Family Court and serve the other spouse with the Summons and Complaint. Most complaints for divorce cite as the reason for divorce that the marriage has irretrievably broken down and there is no hope for reconciliation. This is referred to as a no-fault divorce and is the most common. A fault divorce is different because there is a specific reason that the marriage dissolved, such as adultery, desertion, cruel and abusive treatment, confinement in prison, habits of intoxication, or impotency. The spouse initiating the divorce has the burden of proving the other spouse behaved in one or more of those ways during the marriage, and this can be a heavy burden; it is usually easier to show that a marriage has no hope of reconciliation. Also, there is no significant benefit to filing for a fault divorce, as it is only one of the eighteen factors a judge will look at to determine property distribution, alimony, and child custody and support.

Litigation is an appropriate option when a divorce is combative or emotionally charged. Litigation allows each party to have a lawyer advocating for their best options, which is a great asset to have during the divorce process. It also allows for some negotiation between the initial filing of the divorce and the first court appearance (usually a pre-trial conference). Many cases are settled before the pre-trial conference, at which time the judge reviews the separation agreement with the spouses, which will become the final divorce decree.

One danger of litigation occurs when the parties do not settle beforehand – any disagreement will be settled by a judge who knows little about your situation, but will have the final decisions about personal topics such as your children, assets, or potential future alimony. This option is usually pursued by spouses who have significant personal and/or business assets and cannot decide between themselves a fair and equitable allocation. Cases which involve alimony or spousal support may also go to trial, since there are many factors a judge can weigh in determining the type, amount, and duration of alimony and spouses seldom take all of those factors into consideration.

If you need any assistance with a divorce or family law matter, please contact our office at 413-583-5196 or info@govelawoffice.com.

Divorce Options: Mediation

In our first post about divorce options, we discussed Limited Assistance Representation. Our second installment in the series delves into the world of divorce mediation.

Mediation is often viewed as an advisable alternative to do-it-yourself divorce because it may lower the cost of divorce while allowing another individual — a mediator — to be involved in the process, in hopes of handling it more peacefully. A mediator’s role is to be a neutral third party who facilitates a discussion around issues such as property division (how to divide joint assets and liabilities, pensions and retirement accounts), alimony, and post-divorce medical coverage. If the couple has children together, other issues that may be discussed include custody, parenting time, holiday and vacation schedules, extracurricular activities, uninsured medical costs, child support, and, potentially, the contributions of each parent to the cost of college/higher education.

Mediators do not provide legal representation to the parties. Rather, they are trained and skilled professionals who foster dialogue between the parties in a respectful manner and discuss potential outcomes with them. An important aspect of the mediation process is that the couple comes in with an open mind and is willing to enter into discussions and compromise if needed. The parties are each advised to consult an attorney of their choosing before they sign anything to ensure that it is fair, reflects all of their wishes, and addresses all property, assets, liabilities, and child custody/support issues accordingly.

Some couples anticipate a traditional litigated divorce and both parties retain counsel, but later on realize they are more in agreement than previously thought. At this point, mediation can still be explored and utilized to resolve any issues that are not agreed upon. It can be helpful to have a neutral third party facilitate discussions that can open dialogue around sensitive topics, paving the way for resolution without litigation.

Divorce involving mediation often allows for a better future relationship with your ex-spouse because fighting may be minimized and all discussions are handled in private. This can be an especially good approach for couples who have children together because they are able to continue to have a relationship with one another post-divorce. Minimizing hostility is especially important for effective co-parenting.

However, mediation may not be a good option if you are likely to be manipulated by your spouse. The mediator’s role is to make sure that the divorce outcome is one that both parties can settle on, and not necessarily one that is fair to both parties. All financial information is presented voluntarily, so if you believe your spouse may be hiding assets, then this option may not be advisable. Most importantly, if you might feel uncomfortable properly advocating for your needs, then you may want to avoid this option.

If you need any assistance with a divorce or family law matter, please contact our office at 413-583-5196 or info@govelawoffice.com.

Divorce Options: Limited Assistance Representation

Limited Assistance Representation (LAR) provides a new innovative approach to representation in Probate and Family Court, Housing Court, Land Court, and District Court. The Massachusetts Probate and Family Courts were the first to adopt this alternative type of representation. LAR allows a client to retain an attorney for just part of their case and to limit the scope of the work that the attorney does on their behalf. This particular type of representation is especially useful in family law matters due to the often contested nature of divorces, child custody/parenting time, and child support, and the need for representation at hearings for temporary orders, motions, or contempt.

Courts recognize the need for attorneys to assist clients with aspects of litigation, but perhaps not the entire case. Clients can retain counsel for a portion of their matter, such as for the drafting of a separation agreement or attending a hearing, and can limit the scope of the work done to that one portion or event. All of the work done on their behalf is charged on a flat fee or hourly rate schedule, and payment is due on the date the work is completed. If a client wishes for their attorney to attend another hearing or prepare additional work on their behalf, he or she can retain counsel again for another limited purpose. This is especially useful for clients who have the ability to handle the majority of the representation themselves and only need an attorney for a few portions of their case. Additionally, this approach is useful for financial reasons. Some clients lack the financial means to pay an upfront retainer, so paying on this per instance basis works best for them.

One example where LAR is frequently used is an uncontested divorce. A majority of clients choose to retain an attorney in this capacity to draft or review a separation agreement and to attend the divorce hearing. Most of the other paperwork can be completed by the client since it is significantly less complicated and time consuming when both parties can agree upon the terms of their divorce. We have seen an increase in the use of LAR for cases involving child support where both parties need to complete a financial statement prior to the hearing but are unfamiliar with certain terminology on the forms. Clients want to ensure they are well informed before entering into agreements, especially those for child support, due to the significant financial impact that they can have.

LAR is a great way to make legal representation more affordable and accessible to those in need. Each courthouse in Massachusetts has a list of attorneys who are trained and certified to provide this type of representation. It is always best to consult an attorney before entering into agreements that can be binding and have a lasting effect upon your and your family’s lives. LAR can provide you with peace of mind in a cost-effective manner.

If you need any assistance with a divorce or family law matter, please contact our office at 413-583-5196 or info@govelawoffice.com. Also see the subsequent posts in our series on divorce options, Mediation and Litigation.

Some Resources for Parents

For forty years, the non-profit Federation for Children with Special Needs has provided information, assistance, and support to parents of children with disabilities, and has helped thousands of families in Massachusetts in addressing the issues that arise in special education programs.

The Federation’s Parent Training and Information Center connects parents like you with special education advocates and compiles and summarizes key topics and relevant legislation for easier comprehension of the rules and regulations you and your child have to work within. It also holds regularly scheduled workshops around the state covering every stage of the special education process from ‘Basic Rights in Special Education’ to ‘Transition 101 – High School to Adulthood,’ and can be a valuable resource for this initial information.

If you have questions about the Federation for Children with Special Needs, or any other issues related to special education advocacy, contact me at mgove@govelawoffice.com or 413-570-3170.

Protecting Your Special Needs Student from Bullying

With students returning to school following the holiday weekend, it’s important to remember the disproportionate impact bullying can have on students with disabilities. Not only are students with learning disabilities, attention deficit disorder, autism, and other special needs more likely to be bullied than their peers, but they are also less likely to recognize an action as bullying, less likely to understand the harm the behavior is causing, and less likely to report the behavior to an adult. As a result, it’s even more necessary these issues are spotted and addressed as early as possible.

In light of this need, the U.S. Department of Education recently issued a statement reminding school officials of their obligations to identify and prevent the bullying of students with special needs. (See the letter here.) In the letter, the Office of Special Education and Rehabilitative Services makes clear that the bullying of a student who is receiving special education services can result in the student not receiving a Free and Appropriate Public Education if the behavior prevents the student from receiving meaningful educational benefits.

Whenever a school becomes aware that a disabled student has been bullied, it should call a meeting of the student’s IEP team to determine if the student’s needs have changed and if the IEP needs to be changed. The school, however, should try to avoid a change in placement because the disabled student is still entitled to receive FAPE in the least restrictive environment, and this requirement cannot be avoided simply because of bullying behavior. Instead, whenever possible, the school should address the situation in a way that allows the student to continue their education in a meaningful and appropriate fashion.

If you have questions about your child’s education, contact me at mgove@govelawoffice.com or 413-570-3170.

The Importance of the IEP to a Free and Appropriate Public Education

Earlier, we discussed a student’s Individualized Education Plan (IEP), including how it should be drafted, who should be involved, how goals, objectives, and benchmarks should be set, and which direct services and related services could be identified as necessary. We also discussed different examples of related services which might be available. The ultimate goal of the IEP, and the provision of all special education services, is your student’s free and appropriate public education (also known as “FAPE”).

Under federal law, each state is required to provide a free and appropriate public education to every student with disabilities between the ages of three and twenty-one. FAPE is defined as “special education and related services” that (i) are provided at public expense; (ii) meet the state’s education standards; (iii) include an appropriate preschool, elementary, or secondary school education; and (iv) are provided in conformance with an IEP.

Courts have determined the requirement to provide FAPE does not mean the school has to provide the “best” program available, nor does it mean the school has to provide a program that will “maximize” a student’s potential. Instead, it means only that the program must provide a “basic floor of opportunity” which allows a “child to benefit educationally from instruction.”1 This minimal standard allows many school districts to argue a proposed program meets the requirements for a free and appropriate public education merely because a student will receive some benefit from the program, even if the student would receive greater benefit from a different placement.

The requirement that FAPE integrates the IEP, however, opens a door to making sure a student is placed in a program that provides more than just minimal benefits. As we know, an IEP must be individually tailored to a student’s unique needs, and must be calculated to provide the student with services that help achieve specific goals, objectives and benchmarks. Because of this, what is a free and appropriate public education for one student may be different than what it is for another. As a result, by making sure your student’s IEP contains a very detailed listing of the special education services to be provided, you can ensure your student is receiving a free and appropriate public education that is both unique to them and provides benefits greater than the minimum standard required by the courts.

If you have questions about whether your student is receiving a free and appropriate public education, or whether a school district is complying with an individualized education plan, contact me at mgove@govelawoffice.com or 413-570-3170.

1 Board of Education v. Rowley, 458 U.S. 176 (1982).

“Related Services”: Special Education Services May Be Broader Than You Think

After a student undergoes an evaluation for special education services, the IEP team will determine if the student is eligible to receive special education services. If so, some of the services provided to the student will be aimed directly at overcoming the obstacles created by the student’s disability.

Related services, however, are not aimed directly at the student’s disability, but instead assist the student to access or benefit from the special education services already being provided. Because of this, the need for related services can be easily overlooked, but they can be instrumental in helping a student succeed throughout their education and parents should consider asking the school district to provide them when appropriate.

Some examples of related services include transportation assistance, speech-language pathology, audiology testing and assistance, interpretation services, psychological testing and therapy, physical therapy, recreational programs, social work services, counseling, assistance from school nurse staff, mobility services, and diagnostic medical services. Related services can even include counseling, therapy, and home services for the student’s family, if these will assist with implementation of the student’s IEP. This list, however, is not exhaustive, and if the IEP team determines that something else is necessary to assist a student with a disability, then that can also be provided as a related service.

If you have any questions about your child’s receipt of special education services, or their eligibility for related services like those described above,
contact me at mgove@govelawoffice.com or 413-570-3170.

Eight Tips (and a Bonus) for a New School Year

The beginning of the school year is a busy time for any parent or guardian, but if you have a student receiving special education services, there are even more things you have to do to get ready.  Here are some tips:

  1. Get Organized: Purchase a new loose-leaf binder to contain all of the IEPs, notices, communications, evaluations, and reports you’ll receive during this year.  Purchase a separate large folder to hold all of the school work your student brings home so you can easily monitor and document his or her progress.  Keep a smaller notebook available to document incidents or notes you have with your student.  Start by reviewing how the summer was – this can be important if you plan to ask for Extended School Year services next summer.
  2. Review the IEP: Go over the objectives and benchmarks your student should be achieving in both the short-term and long-term.  Make sure you understand what services the school has agreed to provide, and contact the school if you have any questions about how those services will be provided.
  3. Meet the Teacher: Introduce yourself to your student’s teacher.  Bring extra copies of your student’s IEP so you and the teacher can review and discuss it, and so you can answer any questions the teacher may have about your student.
  4. Don’t Forget the School Nurse and Aides: Stop by the nurse’s office to talk about your student, and to discuss the current medication status and any changes that have been made since the previous year.  If you can, introduce yourself to the aides and therapists that your student will be meeting and working with.
  5. Check-ups and Evaluations: Consider having your student evaluated again by a private specialist.  This will help you get a “baseline” picture of your student at the start of the year that will make it easier to follow your student’s progress.  If possible, try to have evaluations done by the same specialists who have always seen your student, as their impression will carry more weight if there is a dispute.
  6. Contact the Local Parent Advisory Council:  The local Parent Advisory Council (PAC) is a valuable source of support and information.  If you haven’t been involved with them before, attend a few meetings, get to know the coordinators, and meet other parents of students in the special education programs.  If you can, offer to help organize a meeting, bring in a guest speaker, or volunteer to be the coordinator.
  7. Catch-up on Developments: There are many places you can get updates on changes in special education laws, regulations, or practices.  You can stay in contact with the local PAC, research issues online, attend a talk by a special education specialist, subscribe to special education blogs by special education attorneys (like this one), or meet with a special education advocate or attorney.
  8. Monitor Progress: Throughout the school year, make sure your student’s teachers and aides are sending you regular progress reports and updates.  Compare these over time, and compare them with the objectives and benchmarks outlined in the IEP.  If you think your student is not progressing appropriately, don’t hesitate to meet with the teacher or school representatives to ask what can be done.

Bonus Tip:  As busy as you might be, don’t forget to make sure your student knows you love them and you’re there to support them.  After all, in the end, that’s the most important thing you can do.

Basics of Individualized Education Plans (IEPs)

If you are the parent or guardian of a student who has been referred for a special education evaluation, one of the first acronyms you will hear is “IEP”.  An IEP, or Individualized Education Plan, is the document that governs the delivery of special education services to a student.  After a special education evaluation is completed, and at least annually thereafter, a “Team Meeting” will be held.  The “Team” consists of you, representatives from the school district, the student’s teachers or aides, and anyone else you want to include, such as outside evaluators or therapists, a special education advocate, or your special education attorney.  The Team should also include the student when appropriate.  The goal of the Team Meeting is for you and the school district representatives to cooperatively develop the IEP, using input from teachers, aides, and professional evaluators.

An IEP will address many issues, but should start by outlining a broad vision for the student which can extend beyond the immediate school year.  The IEP should identify what the student has already achieved academically, socially, physically, and emotionally.  It should then set out goals for the student to meet in the upcoming year.  These goals must be broken down into specific objectives and benchmarks.  Each benchmark should contain objectively measurable targets which pinpoint exactly what tasks the student should be able to accomplish, and when the student should be able to accomplish those task.

The IEP will then list all of the services and support to be provided by the school, including out-of-district placements and other related services.  It should also address the student’s involvement in statewide assessment tests and, if the student is over the age of fourteen, outline how the student will be prepared for the transition into adult life.  Over the course of the IEP, the school district is required to provide these services, as well as regular reports on the student’s progress toward the benchmarks and objectives set out in the IEP.

If you have any questions about an IEP, are concerned that your school district is not providing the services required by the IEP, or are concerned that the services being provided are not leading to effective progress, contact me at mgove@govelawoffice.com or 413-570-3170.