Custody Checklist

A checklist of steps for assisting your client with a custody matter.

  1. Parent Education Program

  2. 1. Parent Education Program

    Plaintiff/defendant to a divorce action w/ minor children must register with an approved program within 30 days of service of the complaint upon defendant.

    • Other parties may be ordered to register, and must do so within 30 days of an order.
    • List of approved programs.
    • Costs $80 (unless fee waiver- reduced to $5)
  3. Filings for Parenting Education

  4. 2. Filings for Parenting Education

    • Affidavit confirming Registration at Parent Education Program and file with the Court.
    • Certificates of Attendance filed with the Court within 30 days after completing the program
    • Copy is supposed to be provided to the plaintiff upon filing the Complaint, and is supposed to be served on defendant along with the Complaint and Summons.
  5. Waiver of Parenting Education?

  6. 3. Waiver of Parenting Education?

    Only applicable if either party:

    • Is incarcerated
    • Is being hospitalized
    • Is in the military service
    • Does not speak English

    Will be scheduled for hearing

  7. Watch on DVD: Parenting Education?

  8. 4. Watch on DVD: Parenting Education?

    Include reason why the party is unable to attend in person
    May be granted upon a showing of:

    • Significant health or financial issues
    • Geographic issues
    • Transportation issues
    • Other significant barrier to in person participation
    • Will be scheduled for hearing

    Still must complete the interactive program and obtain/file the Certificate of Attendance with the Court within 30 days of completion

  9. Child Support Guidelines

  10. 5. Child Support Guidelines

    • Child support is based upon gross income of the parties and certain expenses.
    • Read the text of the Guidelines, not just the charts. 
    • The worksheet is available online.
    • Costs of child care, health and dental insurance are all taken into account.
    • Guidelines apply to combined annual gross incomes of $250K or less.
    • Deviations from the guidelines amount can be argued in appropriate circumstances.
  11. Rule 401: Financial Statement

  12. 6. Rule 401: Financial Statement

    • Both parties in a case where financial relief is requested must file a Financial Statement within 45 days from the date of service of the summons and provide it to the opposing party.
    • If a motion hearing is scheduled during the 45 day period, parties must exchange financial statements two business days prior to the hearing.
    • Short Form is for income of less than $75K. 
    • Client signs under the pains and penalties of perjury.
    • Attorney signs stating that s/he has no knowledge of any false information.
    • There are financial statements in English, Spanish and Portuguese.
  13. Rule 410: Mandatory Self Disclosure

  14. 7. Rule 410: Mandatory Self Disclosure

    Parties to a divorce action must exchange the following within 45 days of service of the summons:

    • Federal and state tax returns for past 3 years
    • 4 most recent pay stubs
    • Documentation regarding cost of available health insurance coverage
    • Bank account statements for 3 years
    • Stocks, bonds, 401K, IRA, pension statements for past 3 years
    • Loan or mortgage applications for past 3 years
    • Any financial statement prepared during last 3 years
  15. Discovery

  16. 8. Discovery

    • Conduct discovery after Service of Process, and before settlement discussions.
    • Rule 401 Request for Financial Statement
    • Rule 410 Mandatory Self-disclosure
    • Subpoena wage records, pension records, etc.
    • Request for Production of Documents
    • Interrogatories
    • Motion to Compel
  17. Finalizing the Case

  18. 9. Finalizing the Case

    Standing Order 1-06 Time Standards
    Standing Order 4-08 Parent Education Program requirement Motion to Waive Parent Education Class

    File Request for Trial, if case is uncontested

    File Request for Pre-Trial Conference, if case is contested

    • Pre-Trial Memorandum
    • Pre-Trial Conference
    • Pre-Trial Order and Trial date
    • Separation Agreement
    • Proposed Judgment, where there is no Separation Agreement

    Judgment of Divorce Nisi
    Divorce Absolute

    Follow up - Is wage assignment in effect? etc.

  19. Temporary Orders

  20. 10. Temporary Orders

    Remains in place only temporarily as it “expires” when the parties either complete a separation agreement which is merged into a final judgment or when the court enters a final judgment as the result of a trial.

    Get orders for:

    • Child Support
    • Child Custody
    • Visitation
    • Spousal Support
    • Health Insurance
    • Uninsured Medical Expenses
    • Mortgage payments
    • Extracurricular activities for the Children
    • Other child-related expenses
    • Other expenses
    • Other issues
  21. Temporary Orders: What to do

  22. 11. Temporary Orders: What to do

    • File the Motion with the Probate Court.  Best to file in person.
    • “Mark up” (schedule) the Motion for Hearing, giving sufficient time for notice by getting a hearing date from the Court.
    • Serve copies by mail on opposing party:  7 days’ notice plus 3 days for mailing.  See Mass. R. Dom. Rel. 6.
    • Request interpreter from the Court, if needed.
    • Mail a copy of the Motion (and Affidavit if one was filed)  to opposing party with notice of when the motion will be heard.
    • Provide notice to Department of Revenue, Child Support Enforcement, if required.
    • Subpoena OP’s employment & salary records.
  23. Temporary Orders: What to file

  24. 12. Temporary Orders: What to file

    A Motion for Temporary Orders
    An affidavit accompanying the motion, as needed
    Proposed Order
    Certificate of Service with notice of hearing date

  25. Temporary Orders: If you need a hearing

  26. 13. Temporary Orders: If you need a hearing

    Preparing for the Hearing

    • Prepare client’s financial statement.
    • Prepare client ahead of time and know what they are looking for.
    • Prepare Child Support Guidelines worksheet for the hearing with different financial scenarios.
    • File Financial Statement with Assistant Judicial Case Manager.
    • Exchange Financial Statement with opposing party/counsel.
    • Engage in negotiations and discussion with opposing party/counsel and client.
    • All motions in Suffolk and Norfolk start in FSO (aka Probation), in Middlesex if there is one or two attorneys you go to the courtroom to check in.
  27. Temporary Orders: Family Services/Probation

  28. 14. Temporary Orders: Family Services/Probation

    • Report to Family Services Office (FSO)
    • File Financial Statement
    • Exchange Financial Statement with opposing party/counsel.
    • Engage in negotiations and discussion with opposing party/counsel and client.
    • Meet with Family Services Officer for dispute resolution
    • FSO will report to the judge – be respectful, courteous and careful.
    • If full or partial agreement is reached, FSO will write up agreement, which will become a court order.
    • If full agreement is not reached, case will go before the Judge to make a decision
  29. Temporary Orders: What happens at the hearing

  30. 15. Temporary Orders: What happens at the hearing

    • If an agreement is not reached, the Judge will briefly hear the case.
    • Parties will be sworn.
    • Attorney or pro se litigant will make argument to the Court.
    • Judge may issue a decision from the bench or “take the matter under advisement” and mail out his/her decision.
  31. Separation Agreement

  32. 16. Separation Agreement

    • Appropriate where spouse has or will seek counsel.
    • Tailor any boilerplate carefully to your case.
    • Exhibits.
    • Merger versus Survival. 

    Issues re: children (custody, child support, visitation) may always be modified.

  33. Request for Final Hearing

  34. 17. Request for Final Hearing

    Submit the following to the Court:

    • Proof of Return of Service
    • Proof of Attendance at Parent Education Program, if there are children
    • Request for Trial or uncontested hearing
    • Client’s Financial Statement
    • Proposed Orders
  35. Uncontested Final Hearing

  36. 18. Uncontested Final Hearing

    • This occurs when the defendant does not file an answer to the complaint or show up at the hearing
    • Prepare client’s testimony ahead of time for final hearing
    • When you arrive in court, check in with Assistant Judicial Case Manager
    • File Client’s Financial Statement and Proposed Orders
    • Wait for case to be called
    • Present testimony
    • Judge may ask counsel to present a prima facie case or judge may inquire of the parties.
    • If there is a separation agreement, both parties will be asked if they find it fair and reasonable, and if they made full disclosure on their financial statement.

    Note: If defendant shows up for an uncontested hearing, the case cannot go forward without a separation agreement.

  37. Contested: Pre-trial Conference

  38. 19. Contested: Pre-trial Conference

    If your case is contested, the court will schedule a Pre-Trial Conference.

    In advance of pre-trial hearing:

    • Conduct 4 way meeting
    • Prepare and submit Pre-Trial Memo
    • Updated financial statement for client

    At pre-trial hearing, judge will try to narrow the contested issues and to settle the case.

    The majority of cases settle at the pre-trial conference stage.

    Be prepared with a separation agreement and extra copies to modify during negotiations.

  39. Judgment of Divorce Nisi

  40. 20. Judgment of Divorce Nisi

    • Judgment of Divorce Nisi enters at the final hearing. 
    • Court will mail out copy of Judgment of Divorce Nisi. 
    • Client cannot remarry during the Nisi period.
    • Nisi period is 90 days (or 120 days in the case of a 1A joint petition for divorce).
  41. Divorce Absolute

  42. 21. Divorce Absolute

    • If 1B divorce, divorce absolute occurs after 90 days from judgment of divorce nisi
    • If 1A divorce (joint petition), divorce absolutely occurs after 120 days from judgment of divorce nisi
    • Divorce Absolute is automatic.  There will be no notices from the Court.  To obtain a certified copy of a Judgment of Divorce Absolute, client must return to the Court, pay $20 or submit a fee waiver.