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Family Law in Massachusetts

Questions & Answers

Marriage and Civil Unions

In an historic decision, the Massachusetts Supreme Judicial Court ruled on November 18, 2003, that gay and lesbian couples have the right to civil marriage in Massachusetts. The ruling in GLAD’s case, Goodridge v. Department of Public Health, was the first of its kind in this country by a state high court.  (The California Supreme Court issued an equivalent opinion on May 15, 2008, as did the Connecticut Supreme Court on October 10, 2008.)

This was a legal and cultural milestone. At long last, gay and lesbian families and their children are finally equal families in the Commonwealth.

Massachusetts does not have a residency requirement for marriage, but until July 31, 2008 an old law dating back to 1913 was used to deny marriage licenses to same-sex couples from other states unless they intended to reside in Massachusetts.  On July 31, 2008 Governor Patrick signed into law a bill that repealed this so-called “1913 law,” and effective immediately on that date same-sex couples from anywhere in the country or world can legally marry in Massachusetts without having an intent to reside in Massachusetts. 

Although this is great news, couples should be aware that whether the marriage will be respected in their home state or country is a complicated issue.  In addition, because of the 1996 federal Defense of Marriage Act, the marriages of same-sex couples are not respected by the federal government and so same-sex couples are not allowed access to the 1,138 federal laws that deal with marriage.  Also, should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce.

GLAD has prepared a number of publications dealing with marriage.  These publications are available both in printed form and on our website, www.glad.org.  They include:

• How To Get Married In Massachusetts
• Marriage Tips and Traps
• Same-Sex Spousal Health Benefits In Massachusetts After Goodridge
• Taxes On Employment Benefits For Same-Sex Spouses
• Navigating Income Taxes For Married Same-Sex Couples
• Separation, Divorce and Marriage Equality
• Legal Issues for Non-Massachusetts Same-Sex Couples Who Married in Massachusetts
• Marrying in Massachusetts:  A Guide for Rhode Island Same-Sex Couples

What other options are available to Massachusetts same-sex couples to obtain legal recognition of or protection for their relationships?

Marriage in Connecticut or Other Countries

Same-sex couples can marry on an equal basis with different-sex couples in Connecticut and all regions in Canada (Same-sex couples were able to marry in California between June 16, 2008 and November 4, 2008.  The California Supreme Court will hear arguments in March as to whether same-sex couples will be able to marry there in the future).  These locales have no residency requirements, so qualified couples from anywhere in the world can marry there.  For more information about Connecticut, see How To Get Married In Connecticut; for Canada, see What Do I Need To Know About Getting Married In Canada?.

Same-sex couples were able to marry in California from July 16, 2008 through November 4, 2008, but a ballot initiative took away that fundamental civil right.  A case has been filed with the California Supreme Court in an attempt to allow same-sex couples the right to marry again in California.

Some people may be able to wed in Spain, the Netherlands, Belgium, Norway or South Africa, but the residency issues are much more complicated.

Civil Unions

Same-sex couples can also enter into “civil unions” in Vermont, Connecticut, New Jersey and New Hampshire which will give them a legal status, but it is not yet clear what effect those civil unions will be accorded in Massachusetts. A civil union is intended to be parallel to civil marriage in all respects under state law.  GLAD thinks the legal status of civil unions should be respected in Massachusetts, but that it will take time for that state of affairs to evolve.  See GLAD’s publications, A Historic Victory:  Civil Unions in Vermont; Connecticut Civil Unions; and New Hampshire Civil Unions and stay tuned to the GLAD website for further developments.  (Note:  California and Oregon offer comprehensive domestic partnerships which like civil unions offer essentially the same protections, benefits and obligations as civil marriage under state law.)

Other Legal Protections for Same-Sex Couples

Short of entering into a civil marriage, a civil union, a registered domestic partnership or some other sanctioned legal status, what steps can a couple take to safeguard their legal relationship in Massachusetts?

1. Relationship Agreement or Contract: In 1998, the Massachusetts Supreme Judicial Court ruled that written cohabitation agreements by unmarried parties regarding property and finances will be respected and honored according to ordinary rules of contract law.³⁵ This ruling provides greater incentive for couples to sort out their affairs in writing before a separation.  Note that the rules governing cohabitation contracts between married people are based on what is “fair and reasonable,” a more generous standard which is not available to unmarried persons.  And as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children.
2. Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled.³⁶ If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

   A person may also nominate his or her guardian or conservator—a longer term appointment which takes priority over the attorney-in-fact—in the same document.  An individual’s choice can only be rejected by a court for good cause or disqualification.  The mere fact that a family member is not appointed is not good cause.

3. Health Care Proxy: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care proxy if he or she wishes another person to make those decisions instead of the family member.  Under Mass. Gen. Laws, chap. 201D, a person may appoint a health care agent to make decisions for him or her upon incompetence.  This can be revoked at any time by creating a new health care proxy or by a clear expression of revocation.  People often give a copy of the health care proxy to their doctors and sometimes to family members.
4. Will: Without a will, a deceased unmarried person’s property passes to:  (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state.  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child in a will.
5. Funeral Planning Documents: Upon death, a person’s body is given to their next-of-kin.  This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place.  But if a person leaves explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements, any confusion can be avoided.  Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.
6. Living Will: Within a health care proxy, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.
7. Standby Guardianship: Parents, particularly those with life-threatening illnesses, may use the Standby Guardianship and Emergency Guardianship Proxies Law,³⁷ which permits parents and legal guardians to name a proxy and successor proxy to care for the child, the child’s estate, or both.  The proxy takes effect when a parent needs help caring for his or her children.  The proxy is automatically suspended if the parent recovers, and is reactivated when needed again.  Within 90 days of assuming authority, the proxy must file a guardianship petition in the Probate and Family Court.  In addition, short-term emergency guardianship proxies allow parents (but not legal guardians) in critically urgent situations to appoint a guardian immediately without going to court.  With both types of proxies, the proxy shares authority with the parent and does not displace him or her.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although some forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with your specific instructions.

If a couple separates, what is the legal status of these documents?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system (available to all married couples) to help them sort through it. 

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which benefits were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” See GLAD publications on domestic partnership for further information.

Does Massachusetts provide domestic partner benefits to state employees?

Generally no.  By the terms of a 1993 Executive Order, certain managerial employees of the Commonwealth have expanded leave rights for their partners.  But overall, state employees do not have equal access to health benefits or other employee benefits for their partners, and the state pension system does not allow people to name unmarried partners as beneficiaries of an employee’s pension.

Can cities and towns in Massachusetts provide domestic partner health insurance benefits to their own employees?

Probably not.  While several cities and towns have done so in the past, a court ruling in 1999 found that Boston did not have the power to expand the reach of the state insurance laws by including domestic partners in the group health system.  Amherst has continued its domestic partner program by buying individual health insurance policies for the partners of Amherst employees who previously had group health coverage through the town.  Several other cities and towns have also continued to provide coverage.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. 

Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses.  For example, an employee must pay federal income tax on the value of his or her partner’s health insurance benefits, but the employee with a different-sex spouse does not.⁴⁰ Because of the federal DOMA, an employee with a same-sex spouse for federal (but not Massachusetts) income tax is treated like a domestic partner. And for pensions, a domestic partner has no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right.  In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

Probably not.  Although the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, the law contains an express exemption for employee benefits. ⁴¹ Thus, an employer may provide domestic partner benefits if it chooses to do so, but it probably cannot be forced to do so through the state non-discrimination law.

Adoption

Can a single gay individual adopt a child in Massachusetts?

Yes.⁴²

Can same-sex partners together adopt a child in Massachusetts?

Yes, ever since court rulings by the Supreme Judicial Court in 1993.⁴³

What is the advantage of doing a second parent or joint adoption?

A joint adoption means that the child now has two legal parents for all purposes.  The law will finally reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization. 

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits. 

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married or in a civil union?

A child born to a married or civil union couple is presumed to be the child of both members of the couple.  While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves.  Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

• 
  Miller-Jenkins Sidebar
  Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006), cert. denied, 127 S.Ct. 2130 (2007), Miller-Jenkins v. Miller-Jenkins⁴⁴ , 49 Va.App. 88 (2006), cert. denied, 128 S. Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made three trips to the U.S. Supreme Court. Proceedings are ongoing.

  In that case, Janet and Lisa had a child while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. While Virginia is currently deferring to Vermont’s order of visitation for Janet, legal maneuvering in Virginia continues and threatens to reopen the issues. For more information, see the GLAD website on Miller-Jenkins.  GLAD and local counsel represent Janet in the Vermont proceedings.
  

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

These are tricky cases, but if the other person can show that he or she is a “de facto parent,” then he or she has the right to visitation with the child.  De facto parents should also have rights to custody, but that has not yet been definitively decided by the courts.  De facto parents will also have an obligation to support the child.

In a groundbreaking case, the SJC ruled a de facto parent is “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family.”⁴⁵ To establish de facto parenthood, a parent must:

• reside with the child;
• and with the consent and encouragement of the legal parent, perform a share of the caretaking functions⁴⁶ at least as great as the legal parent, shape the child’s daily routine, address his developmental needs;
• discipline the child, provide for his education and medical care, and serve as a moral guide.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged.  See GLAD’s publication, Protecting Families: Standards for Child Custody in Same-Sex Relationships..

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

1. Co-parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability or death.  While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death.  These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
3. Co-guardianship: This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention for the child and act as a parent.  This status is not permanent, and may be revoked by the legal parent.
4. Power of Attorney: This document is signed by the parent and authorizes another person (the attorney-in-fact) to make medical or financial decisions for the child.  It should be updated regularly.

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

In Massachusetts, the question turns on whether there is evidence of direct harm to the best interests of the child.  As a general matter, a parent’s sexual orientation is not itself grounds for denying custody or visitation.⁴⁷ In a heterosexual case, a court found that a father who had had an extramarital affair and lived with the other woman while married did not deprive him of custody rights where there was no evidence of harm to his children.⁴⁸

What are the factors for making custody determinations generally?

Upon divorce, a court considers the parents as equals (unless one has engaged in misconduct) and makes orders based on the happiness and welfare of the children. “When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or educational health.”⁴⁹

If the parents are unmarried biological parents (such as a former heterosexual couple where one of the parties is now gay or lesbian), then the rules are different than at divorce. In a “paternity” proceeding, the court is still bound to act in the best interests of the child, but in awarding custody is bound to preserve the relationship between the child and the primary caretaker parent.⁵⁰ Parents cannot be awarded joint custody unless they have agreed to do so or the court finds that they have successfully exercised joint responsibility for the child in the past and have the ability to communicate with each other about the child’s interests.

Are there different kinds of custody?

Yes.⁵¹

1. “Sole legal custody” means that one parent only has the right and responsibility to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
2. “Shared legal custody” means that both parents are involved in and make these decisions.
3. “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
4. “Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent may argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child.  Contact GLAD for further resources for dealing with such a situation.

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody.  People can seek to modify court orders for custody when there has been a substantial change in circumstances.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew.  Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁵²

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.

Domestic Violence

What is domestic violence?

Under the law, “abuse” means that any of the following have occurred between people who are family or household members:

• attempting to cause or causing physical harm;
• placing another in fear of imminent serious physical harm; and
• causing another to engage involuntarily in sexual relations by force, threat or duress.⁵³

Do the domestic violence laws apply to people in same-sex relationships?

In most situations, yes. “Abuse” between family or household members includes, among other relationships, those relationships in which people are or were residing in the same household, or who have a child in common, or who are or have been in a substantive dating relationship.⁵⁴

How do I get a court order protecting me from an abusive partner?

Victims can file an application for a temporary restraining order (specifying ‘domestic violence’ or ‘209A’) in the clerk’s Office at the District Court with jurisdiction over the neighborhood, in which they live, or at Boston Municipal Court, or at a Superior Court.  In emergency situations after normal business hours, orders may be obtained through a police officer or at a police station.  In order to keep an abuser from learning the new address of a victim, the victim needs to request that their address be “impounded”.  This will not be available, however, with a ‘stay away’ order, since a stay away order needs to specify where the abuser is not supposed to go.  A victim’s address is always kept confidential from the public.

Temporary orders are good for ten days, and are generally issued upon request, providing a relationship between victim and offender that is covered by the law and a credible allegation of abuse, threats of abuse, or sexual assault.  A hearing to extend the order for up to one year is scheduled for ten days later.  There is no fee.  The defendant can choose not to show up at the extension hearing, but the victim is required to be present at that hearing for the order to be extended.  A lawyer is not needed for the temporary order; in certain cases, it may be helpful to have one for the extension hearing if you think the order is going to be contested by the abuser.

Violations of a 209A order are criminal offenses and can result in the immediate arrest of the abuser.  It is worth noting that restraining orders do not restrict the activities or contacts of the victim.

If I go to court, will I ‘out’ myself for all purposes?

Not necessarily.  The courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship that they do not want revealed.  Abuse Prevention Guidelines, No. 2:02 (Commentary asking courts to protect people’s privacy as much as possible).

Where can I go to get help?

In addition to the local police and district attorney, you can call the Violence Recovery Program at 800-834-3242, the Network La Red at (617) 742-4911, the Gay Men’s Domestic Violence Project at 800-832-1901, and Jane Doe, Inc. at (617) 248-0922.

Does domestic violence play a role in custody decisions?

Yes.  Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child.  If there is a pattern of abuse, or a serious incident of abuse, a rebuttable presumption arises in the law that it is not in the child’s best interests to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent. 

Footnotes

³⁵ Wilcox v. Trautz, 427 Mass. 316 (1998).
³⁶ Mass. Gen. Laws, chap. 201B.
³⁷ Mass. Gen. Laws, chap. 201, secs. 2A-2H.
³⁸ Weld, Gov.
³⁹ Connors v. Boston, 430 Mass. 31 (1999).
⁴⁰ See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996).
⁴¹ Laws 1989, chap. 516, sec. 19.
⁴² Mass. Gen. Laws, chap. 210, sec. 1.
⁴³ Adoption of Tammy, 416 Mass. 420 (1993) and Adoption of Susan, 416 Mass. 1003 (1993).
⁴⁴ Subsequently, the Vermont case went back to the Vermont Supreme Court after trial; and the prior ruling was affirmed in an unreported decision on March 14, 2008.
⁴⁵ E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 120 S.Ct. 500 (1999). 
⁴⁶ “Caretaking functions” are distinct from “parenting functions.” Caretaking focuses on interactions with a child while, for example, the provision of financial support is a parenting function but not a caretaking one.  A.H. v. M.P., 447 Mass. 828 (2006).
⁴⁷ Bezio v. Patenaude, 381 Mass. 563 (1980); Doe. v. Doe, 16 Mass. App. Ct. 499 (1983)(“[A] parent’s [homosexual] life-style—standing alone, is insufficient ground for severing the natural bond between a parent and a child”).
⁴⁸ Fort v. Fort, 12 Mass. App. Ct. 411 (1981).
⁴⁹ Mass. Gen. Laws, chap. 208, sec. 31.
⁵⁰ Mass. Gen. Laws, chap. 209C, sec. 10.
⁵¹ Mass. Gen. Laws, chap. 208, sec. 31.
⁵² See generally, Mass. Gen. Laws, chap. 208, sec. 31.
⁵³ See Mass. Gen. Laws, chap. 209A, sec. 1.
⁵⁴ Mass. Gen. Laws, chap. 209A, sec. 1. See also Abuse Prevention Guidelines, No. 3:02 (Commentary) (“Unmarried persons who live together, or who did so in the past, are also within the court’s jurisdiction under c. 209A, regardless of whether the relationship between them is homosexual, heterosexual, or not sexual”).
⁵⁵ Mass. Gen. Laws, chap. 208, sec. 31A.

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