Legal Question in Family Law in Massachusetts

We just received the judgment on a divorce trial that was heard at Middlesex Probate Court in Sept 2009. One of the parent resides in MA and the other in NH. GAL report was in favor of the parent residing in NH (legal & physical) given the extreme conflicts between the parties. The NH parent's lawyer argued removal during trial but did not submit a pleading from this parent asking for sole legal and physical (this parent was told that arguing by itself meant that and there was no need to submit a separate pleading_ and as a result, the Court could not and did not make an 'analysis' of removal. The Court, without this pleading, ordered joint legal and physical and could not order removal. The timing and all other factors of the order is consistent with GAL recommendations.

As it is clear that NOT filing the pleading is the main reason for the judgment to have turned out this way, my questions are:

++Is it possible to submit a pleading now, post judgment, or is there some other process to ask for sole legal/physical? Is it possible?

++Two thorough GAL investigations were conducted over a three-year period, all in support of the NH parent. Can this report be used in conjunction with the pleading seeking removal?

++The judgment does say that if communication between parties is detrimental, legal and physical custody will be changed -- and this continues to be a greater challenge. What is the best way (especially time-factor) to go about doing this?

++Is there a deadline to file the pleading?

Thank you.


Asked on 2/24/10, 6:02 am

1 Answer from Attorneys
henry lebensbaum Law Offices of Henry Lebensbaum (978-749-3606)

At this stage, it is my view that the filing of a paper pleading given the judgment is too late. This is an issue that should have been preserved by virtue of an objection. At the same time, a ruling on the removal should have been tendered.

You have not addressed this as far as I can see. The only possibility at this time is to promptly file a notice of appeal.

If I am missing something, advise me.

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Answered on 3/01/10, 8:08 am


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