admin

About admin

This author has not yet filled in any details.
So far admin has created 34 entries.

Guardian Ad Litem v. ARC Attorney

 

In Massachusetts, the standard set by the legislature regarding custody (legal and physical) of minor children is what is in the children’s “best interest”. In highly contested custody cases, it is sometimes necessary to involve additional professionals to assist the Court in making this determination.  Two types of professionals are Guardian Ad Litems and ARC attorneys.
Guardian Ad Litem
Guardian Ad Litems (GALs) are typically either mental health professionals who specialize in working with separating families or family law attorneys who have taken additional required training in order to act in this capacity.  The appointment of a GAL can be requested by one or both of the parties or appointed by the Judge in her/her discretion. The role of the GAL is to determine what is in the best interests of the children and to provide the Court with a report regarding their investigation and their conclusion. The GAL speaks with the parties, the children and other collaterals (family members, friends, teachers, etc.).  If a GAL wants to speak with the children’s therapist then a special GAL has to be appointed to determine whether or not the children’s therapist-patient privilege should be waived. The GAL’s report is available for the parties and attorneys to review at the courthouse. The GAL can be called to testify in court. Judges often given great deference to the GAL report.

The cost of the GAL is expensive and may range from $5,000 to $15,000 depending on the nature of the case.  If the parties have assets or access to funds, the Court will often order the parties to share the cost equally.  In some cases, the Court will designate that one party pay for the GAL in full or the parties […]

Is Shared Physical Custody Possible?

There has been a growing trend in the Massachusetts Probate and Family Courts in the philosophy that parents should, barring certain circumstances, have shared physical custody of their minor children.  In this firm, we have seen a trend of parents who ask for what’s “fair” or “half of the time”.  However, a parenting plan is dynamic and may not always appear to be equal.  Custody is possible to share but whether it’s in the best interest of the child(ren) is determined by the parties or ultimately the Court.

Physical custody is defined by where the children reside and who is responsible for making the day-to-day decisions regarding the children. Traditionally in a divorce, it was automatically presumed the mother was the primary caretaker of the children during the relationship/marriage and therefore, she was awarded primary physical custody of the children.  In Paternity cases, (where the parties are unmarried) under the law, it still is presumed to be the Mother.

With that said, times are changing.  Women are working and becoming more and more financially independent.  With that, father’s rights have come to the forefront and courts have started to analyze the question, “why not?”.  If we have two working, capable, and loving parents – who both work, rely on others for various caretaking tasks and chores, what’s the tie breaker?  We see that there are more dual-income families, there has been a real shift in a shared parenting plans.  Children perform better when parents can continue their relationship post-divorce.  Clearly, this is not the same husband/wife relationship but the relationship should evolve to a co-parenting relationship.  This is what is required to have a successful shared physical custody plan.  The Courts have seen an increase in shared […]

Minimum Wage Increase/ Retail Sunday Pay

In addition to Paid Family and Medical Leave, the act signed by Governor Baker on June 28, 2018, the act also increases the minimum wage in Massachusetts and eliminates the Premium Pay for retail establishments on Sundays.

By the year 2023 the basic Massachusetts minimum wage will be $15.00 an hour and the tipped minimum wage will be $6.75 per hour, a dramatic increase from the current amounts of $11.00 an hour and $4.35 per hours. These amounts will not increase over night but will rather gradually increase beginning in January 2020.

January 1, 2020 = $12.75 per hour; $4.95 per hour (tipped);
January 1, 2021 = $13.50 per hour; $5.55 per hour (tipped);
January 1, 2022 = $14.25 per hour; $6.15 per hour (tipped); and
January 1, 2023 = $15.00 per hours; $6.75 per hour (tipped)

As a form of compromise for the increase in minimum wage and paid family medical leave, the act also will affect employees of retail establishments by gradually eliminating the “time and half” payment of wages on Sundays.

January 1, 2019 = 1.4 x the employee’s regular rate of pay;
January 1, 2020 = 1.3 times the employee’s regular rate of pay;
January 1, 2021 = 1.2 times the employee’s regular rate of pay;
January 1, 2022 = 1.1 times the employee’s regular rate of pay; and
January 1, 2023 = Employees regular rate of pay

The new changes to law will not affect an employee’s ability to refuse to work on Sundays as previously allowed. The prohibitions against discrimination and retaliation regarding an employee’s right to refuse to work on Sundays will remain in full force and effect.

Authored by Eric B. Langfield, Esq.

Paid Family and Medical Leave

On June 28, 2018, Massachusetts Governor Charlie Baker signed a new comprehensive law that will require that employees in Massachusetts receive paid family and medical leave. Previously, Massachusetts employees were only afforded unpaid leave for family and medical issues, usually stemming from either the MPLA, the Massachusetts Parental Leave Act (formerly the MMLA, Massachusetts Maternity Leave Act) or from the Federal FMLA, Family Medical Leave Act.

The new act will allow for employees to receive a portion of their pay for up to twelve (12) weeks of paid leave to care for an ill family member or for the birth (or adoption) of a child. The act will also allow for up to twenty (20) weeks of paid leave to care for their own serious medical issues. The benefit amount will be determined based upon a percentage of the employee’s weekly income, but will not exceed $850.00 per week.

While the law has been signed into law the formalities of the new act have yet to implemented. On March 31, 2019 the first set of proposed regulations will be published which will allow for more guidance on how the new law will affect employers. On or about July 1, 2019, the Commonwealth will begin collecting a new payroll tax of 0.63% to help pay for this very generous benefit. Employees will be able to utilize this new benefit beginning January 1, 2021.

In addition to creating paid family and medical leave, the act also places a strong retaliation provision for employers who unfairly retaliate against an employee for engaging in this new program.

By |April 24th, 2019|Employment law|0 Comments|

Does a spouse have to pay for nursing home care?

 

There is a long-established principal of law that holds that spouses are jointly and severally liable for debts incurred to third-parties for “necessities” (i.e., common-law doctrine of necessaries). Essentially, under the doctrine of necessities, a spouse is equally responsible for payment of a debt incurred for the provision of life’s essentials. For example, a husband is equally responsible for a debt incurred exclusively by his wife (i.e., husband was not a party to the transaction) for groceries or housing.

The Massachusetts legislature has enacted a law codifying this common-law doctrine, Mass. Gen. Laws. ch 209, § 1 (“G.L. ch. 209”). Under G.L. ch. 209, “spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.” While the G.L. ch. 209 does not define “necessities”, Massachusetts’ Supreme Judicial Court has stated, when discussing the common-law doctrine, that the term is “not confined to articles of food or clothing required to sustain life, but has a much broader meaning and includes such articles for use by a wife as are suitable to maintain her according to the property and condition in life of her husband.” Jordan Marsh Co. v. Cohen, 242 Mass. 245, 249 (1922).

Consequently, the Courts have found that necessities include nursing home care. See Mediplex of Mass., Inc. v. Donovan, 1994 Mass.App.Div. 123, 1994 WL 361967 (1994) and Emerson Vill., LLC v. Jode, No. MICV201201736F, 2012 WL 6928123 (Mass. Super. Dec. 15, 2012). In Emerson, husband and wife (“Husband” and “Wife”) were a long-married couple. In April 2010, Husband was admitted to skilled nursing facility (“Nursing Home”) for long term care. Husband applied for MassHealth long term care benefits (“Benefits”) to […]

#MeToo Movement in Massachusetts

#MeToo Movement in Massachusetts
In October 2017 the nation was hit with a movement that was drastically overdue, the #MeToo movement. The movement was a viral sensation in which victims of sexual harassment came forward in droves to proclaim that they too have been victims, many of whom shared their stories in hopes that it would bring attention to sexual harassment and would likewise encourage others who have not reported their sexual harassment to come forward.

One of the most important aspects to the #MeToo movement is letting victims of sexual harassment to know that they are not alone. Too often victims feel as though they will be ostracized and retaliated against for coming forward. The #MeToo movement has brought this issue to the forefront of discrimination and has empowered victims to no longer remain silent.

In Massachusetts, M.G.L. c. 151B operates to make sexual harassment in the workplace unlawful. In general, there are two main areas of sexual harassment, Quid Pro Quo (this for that), and hostile work environment sexual harassment. Quid Pro Quo consists of a person with authority over another using that authority to force the victim into committing sexual acts that they otherwise would not have performed. For example, conditioning a raise or promotion upon the acceptance of sexual advances. Hostile work environment sexual harassment exists when unwanted comments, action and sexual advances exist and cause an interference with one’s ability to perform their job. Both are unlawful and can subject the perpetrators and their employers to various forms of damages.

If you believe that you have been a victim of unlawful sexual harassment it is important that you make a complaint right away. In addition to providing your employer with important information that […]

Criminal Defense Attorney is Now in Quincy

Your Criminal Defense Attorney is Now in Quincy!
Cohen Cleary, P.C. has added a new criminal defense location to southeastern Massachusetts. We now offers our legal experience to Quincy, MA along with the surrounding communities from our office at:

21 Franklin St., 3rd Fl, Quincy, MA.

With a comprehensive law enforcement background, we pride ourselves with our criminal defense experience that allows us to defend your rights zealously.

Out of the vast areas of criminal charges we handle, some of the primary practice areas our Trial Lawyers focus on include:

Operating Under the Influence/Drunk Driving
Drug Crimes
Restraining Orders
Domestic Assault and Battery.
Probation Violation

For any of these issues, we can be reached day or night at cell# (508) 269-3051 or during business hours you can call our main office line at (508) 880-6677.

If you or someone you know requires a defense attorney at our new location in Quincy, or at any of our other locations in Raynham and Plymouth, please contact us to discuss the possibility of retaining our firm to assist in your criminal defense.

With an emphasis on honest representation, knowledge of the law and trial advocacy, this practice is committed to understanding each client’s unique circumstances, setting a plan of action, and getting results. Call us today!

By |December 5th, 2018|Uncategorized|0 Comments|

Non-Competition and Non-Solicitation Agreements

Non-Compete (or Non-Competition) Agreements and Non-Solicit (or Non-Solicitation) Agreements, are contracts entered into by an employee and employer regarding future activities once the employment relationship has ended. These Agreements will be used to limit your future employment for a set period of time, whether it be in a selected field that directly competes with your former employer or by prohibiting your ability to leave and take employees or customers with you.

Generally, these agreements are governed by the state in which the contract is entered into, unless the agreement specifically dictates another state (choice of law provision). Massachusetts currently possesses no general non-compete agreement laws. However, it can be said that Massachusetts courts generally disfavor non-compete agreements and will err on the side of caution in favor of employees when disputes arise due to the fact that employer has a stronger bargaining position when entering into an agreement and the courts do not want to deprive an employee’s ability to earn a living.

When deciding whether a non-compete or non-solicit agreement are enforceable, the courts will look to determine the extent that they are necessary to protect the employer’s legitimate interests while not interfering with ordinary competition and only if “reasonably limited in time and space, and consistent with public interest.” As such, a covenant not to compete and other restrictive covenants must not be more restrictive than necessary to achieve its purpose.

If you are asked to enter into a Non-Compete Agreement or other restrictive covenant before you enter into your employment relationship, it is often a wise investment to have this agreement reviewed by a trained professional so that you understand the agreement you are making and its potential impact on your future employment. Likewise, […]

By |November 2nd, 2018|Employment law|0 Comments|
  • marijuana OUI field sobriety test
    Permalink Gallery

    Operating Under the Influence of Marijuana and Field Sobriety Testing

Operating Under the Influence of Marijuana and Field Sobriety Testing

Operating Under the Influence of Marijuana and Field Sobriety Testing
A Review of Commonwealth v. Thomas J. Gerhardt
In the recent decision,  the Supreme Judicial Court made a decision regarding the Admissibility of Standardized Field Sobriety Tests in cases involving a police officer’s suspicion of a driver that is operating under the influence of marijuana.   The decision reached by Review of Commonwealth v. Thomas J. Gerhardt answers the following questions. Commonwealth v. Gerhardt, SJC-11967, slip op. at 9 (Mass. Sep. 19, 2017).
May a police officer testify to the administration and results of standard field sobriety tests in prosecutions for Operating Under the Influence (OUI) Marijuana, as they do in OUI Alcohol prosecutions?
Short Answer:  No

Officers may only testify to the administration of “road side assessments”
Lack of scientific agreement on the results of the standardized field sobriety test for impairment does not make them irrelevant, though the relevance threshold is very low. at 13.
There is no doubt that an officer can testify to his or her observations, such as the driver’s appearance, demeanor, odors that are relevant to impairment.
Field Sobriety Tests CANNOT BE TREATED AS SCIENTIFIC TESTS that establish impairment as a result of marijuana consumption. The test should neither be treated as a definitive test of impairment nor should it be excluded from the entirety by the finder of facts. at 15.
A Police Officer need not be qualified as an expert. Tests can be admitted without satisfying the Daubert-Lanigan requirements.
The Officer cannot suggest that the defendant was under the influence of marijuana due to their performance on the field sobriety tests and cannot say the defendant PASSED or FAILED. at 16.
Must be made clear under all circumstances to the fact […]

Civil Commitment: A Way to Address America’s Opioid Crisis?

Civil Commitment: A Way to Address America’s Opioid Crisis?
Right now more people in America are dying of drug overdoses than car accident and gun related deaths combined. In the last 15 years more than half a million people across the country have died from drug overdoses. More than two-thirds of those are opioid related deaths. Across the country many states are utilizing, creating, or expanding statutes, to permit courts to involuntarily commit someone with a drug or alcohol addiction.

At Cohen Cleary, we are proud to announce that Attorney Kellie Sanders will be serving as a panelist and moderator for a Webinar through the American Bar Association, where she will be discussing the current opioid crisis, the status of involuntary commitment laws across the country, along with other treatment models that are being used to address the growing drug related crisis in America.

Attorney Sanders has extensive experience representing individuals who are the subject of involuntary commitment petitions in Massachusetts. She has represented nearly 100 people in these commitment hearings. In addition to her expertise representing clients in these hearings, she is also a published Author on this subject, “Nature and Utilization of Civil Commitment for Substance Abuse in the United States.”

For more information, or if you’d like to attend “Civil Commitment: A Way to Address America’s Opioid Crisis?” on 10/5/2017 please visit https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=280856769&sc_cid=CE1710CCO-FMP to register.

Format:
Webinar

Date:
October 5, 2017

Time:
1:00 PM – 2:30 PM ET

Credits:

1.50 General CLE Credit Hours

Panelist(s):

Kellie Sanders

Mary Catherine Roper

Zarah Levin-Fragasso

Sponsor(s):

Center for Professional Development

Center on Children and the Law

Commission On Disability Rights

Commission on Lawyer Assistance Programs

Criminal Justice Section

Division for Public Services

Government and Public Sector Lawyers Division

Health Law Section

Legal Aid and Indigent Defendants

Section of Civil Rights and Social Justice

Section of State and Local Government Law

Senior Lawyers Division

Solo, Small Firm and General Practice Division

Youth at […]

By |September 19th, 2017|Top News|0 Comments|