Comments the Family Law Section Chair

Issue Vol. 9 No. 1 January 2007 By Fern L. Frolin

Family Law in Massachusetts continues its rapid evolution. Same-sex marriage and de facto parent rights opened doors for some spouses and parents in Massachusetts, but we are still learning – and debating – how far the law should go and under what circumstances.

In Charron  v. Amaral, et al., now pending at the SJC, the plaintiff seeks the right to sue for loss of consortium where the cause of action accrued before the plaintiff and her spouse were permitted to marry. The couple exchanged rings in a commitment ceremony, executed reciprocal estate plans and other documents, and adopted a child together before the cause of action accrued. They married immediately after the Goodridge decision permitted them to do so. One spouse died, allegedly as a result of medical malpractice that occurred after the couple’s commitment ceremony and co-adoption of their daughter but before the marriage. Under principles of loss of consortium law, the survivor’s claim for loss of consortium would be barred. The issue to be decided here is whether equitable principles may trump tort law in this plaintiff’s favor.

The Supreme Judicial Court also recently heard arguments in A.H .v. M.P., a de facto parent case in which the Court sought amicus filings on the issue of expanding de facto parent rights to include custody. In this case, the trial court denied de facto parent status to the former partner of the biological mother, citing (among other factors) an American Law Institute Principle of Family Law that would require the non-biological or non-adoptive parent to have lived with the child for at least two years. The parents in this case were in an unmarried same sex relationship. So, one issue in the case may the usefulness of the de facto parent doctrine to would-be parents who have neither adopted the child nor married the legal parent.

Stay tuned for these important family law decisions and more discussion on the rights of parents and spouses under expanding definitions of family.

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Substantive family law is not static, and neither is procedure. As this Section Review goes to press, two Probate and Family Court venues, Hampden and Suffolk counties, will begin 18-month trial programs with Limited Assistance Representation. LAR will offer clients the opportunity to hire counsel for just a single important aspect or event in the client’s case, without the expense of assuming an ongoing attorney-client relationship. Lawyers will be able to offer assistance and expertise without preliminary concern that the client may not be able to pay the legal bills through completion of the case. We will all find it much easier to commit to pro bono undertakings if we know in advance the limit of our obligation. But there are risks and concerns for LAR counsel and clients and these risks must be addressed and evaluated.

Massachusetts is among the early jurisdictions to test LAR. Endlessly energetic retired Judge Edward M. Ginsburg and attorneys John G. Dugan and Ned Notis-McConarty and others have been working with a task force of the Supreme Judicial Court, literally for years, to develop parameters for this pilot. Probate and family cases are ideal for the program. Dozens of family law attorneys have been trained to represent LAR clients. Some of those lawyers received their training at the MBA’s recent 2006 Family Law Conference. John Dugan’s article in this issue of Section Review explains the new LAR procedures and the pitfalls.

As section chair this year, one of my goals is to encourage and stimulate dialogue about the principles and practice of family law. We are fortunate to work in a developing field in a cutting edge jurisdiction. I hope that our section members find much to think and talk about in our publications and meetings and I urge each member to join the conversation.