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Time to stop using the same terms for children in a divorce that are used for prisoners in a jail

Posted on by Seaside Legal

Currently, there is proposed legislation that seeks to modernize the language used by courts, lawyers, and parents when discussing custody matters in Massachusetts, called the “Act Relative to Parental Choice of Terminology in Certain Domestic Relation Matters.”  While the act is not a mandated change in language that would completely rid the law of the word “custody,” it provides the option to use alternative language. The legislation would give parents a choice to move away from using the words such as “physical custody,” and instead use terms such as “primary residential responsibility;” or rather than “visitation,” instead use “parenting time.”

Maritza Karmely, a Boston College Law Professor, and Kelly Leighton, a Massachusetts attorney, argue that the overall benefits of the act include: (1) overcoming the negative connotations connected to the current terms; (2) encourage cooperative parenting; and (3) provide a more neutral language that will in turn reduce the perception that the Massachusetts court system is biased when deciding custody disputes.

Karmely and Leighton note that language is powerful.  When someone hears the word “visitation,” their mind can often jump to the term being used in the prison system context.  This connection then causes the non-custodial parent to be perceived as being related to imprisonment – which is arguably not a pleasant idea with regards to the wellness of a parent and child’s relationship. Alternatively, the act would allow parents who are trying to form a positive relationship to use nonaligned language as a substitute.

The term “custody,” can also have a polarizing effect; essentially the parent granted custody is the winner and the other is the loser.  It can alienate a parent from being fully involved in their child’s life and can deteriorate the relationship between separated parents.  Even in instances where a court orders a form of shared custody, the term fails to focus on how to best parent a child after separation.  The act offers the use of terms like “parenting time,” in order to both preserve the parent/child bond and maintain the goal of cooperatively creating the best arrangements for the child.

Karmely and Leighton believe the benefits the act will go further than just improving co-parenting and argue that the act would resolve the disconnect between the people of Massachusetts’s general understanding that there is value in the involvement of both parents in their child’s life and the system oppositely favoring one parent over the other.  If the court uses the proposed neutral language it can move away from the current winner-loser dynamic and parents will not need to approach the situation with their guns drawn, resulting in better communication and less conflict early on in the separated-parent discussion.

Bottom Line:

If the “Act Relative to Parental Choice of Terminology in Certain Domestic Relation Matters” is passed then divorcing/separating parents and their children will be able to benefit from the use of language that does not invoke prisoner terminology but rather promotes an alternative, modern, cooperation-encouraging parenting plan.

The Contents of this post is for informational purposes and should not be considered legal advice. This blog post does not establish an attorney-client relationship. The content and material on this web site is for informational purposes only and does not constitute legal advice. The content and material is not guaranteed to be correct, complete, or up to date. Information provided by or cited to third parties does not necessarily reflect the opinions of Seaside Legal Solutions or any of its attorneys, employees, agents, or clients. Your receipt of the information on this web site is not intended to create, and receipt does not constitute, a contract for representation by Seaside Legal Solutions. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this site without seeking the advice of an attorney.

Security Deposits – Know in Advance before Paying in Advance

Posted on by Seaside Legal

When renting property (an apartment, house, land, etc.) a landlord can ask the tenant for no more than the following four payments in advance: (1) first months rent; (2) last month’s rent; (3) one month’s rent as a security deposit; and (4) the cost of installing a new lock. M.G.L. c. 186 §15B.
The reason for first month’s rent is basic: a tenant is receiving occupancy of the landlord’s property in exchange for payment of rent. Likewise, the law identifies the cost of installing a new lock as a basic benefit and reasonable expense for a future tenant to pay in advance.

Last month’s rent is collected as a security for the landlord but specifically if the tenant fails to pay rent; that is, the landlord collects last month’s rent as a safety net should the tenant skip out on paying a month of the tenancy. If the tenant stops paying rent, the landlord may begin the eviction process but this takes time and the landlord can rely on the “last month’s rent” deposit in the meantime. If there were no issues on behalf of the tenant with rent payment during the occupancy, then the landlord will not collect rent during the final month of the tenancy and instead the last month’s rent will become just what its name indicates: the rent for the final month.

Although the security deposit fulfills a similar purpose as the final month’s rent, the security deposit is governed by a set of strict statutes that dictate the procedure in which the funds are collected, deposited, debited when permitted, and returned to the tenant. These statutes are extremely pro-tenant and a wise landlord will make sure that they are fully versed in the technical requirements of security deposit law or have sought the assistance of a lawyer who is fully versed before requesting a security deposit from a prospective tenant. Similarly, a wise tenant will make sure that they are fully versed in the law or have sought the assistance of a lawyer in order to make sure they are able to enforce all the rights provided to them by the law.

For example these statutes require that within thirty days of receipt of the security deposit, the landlord must place the security deposit in an interest-bearing escrow account that is a Massachusetts bank account separate from the landlord’s personal account. The landlord must also provide a receipt to the tenant of the account with the banking information within this timeframe along with a “Statement of Present Condition” documenting any then-existing damage to or defects in the property. After a year, and each year thereafter, the landlord must provide the tenant with record of the interest that has accrued on the security deposit and provide the tenant with the option of electing to receive the interest or have it remain in the account.

At the end of the tenancy, the landlord must return the security deposit to the tenant unless, as stated before, there are unpaid rent/taxes or actual damages to the property. However, the landlord can’t simply withhold funds as they see fit. If the landlord alleges actual damages, they must prove the cost by using bills, receipts, invoices, and estimates.
Failure to follow any of the statutory requirements typically exposes the landlord to liability equal to three-times the amount collected, plus lawyer’s fees and court costs, should a tenant file an action to have the security deposit returned.

Many landlords do not know the required process of handling the security deposit. Many tenants do not know their rights under Massachusetts security deposit law. A proactive measure for landlords and tenants alike is to contact a lawyer prior to signing any lease. For a landlord, a lawyer can the draft documents that secure the landlord from potentially adverse events caused by tenants. For a tenant, a lawyer will act as an agent who will ensure the escrow account is created properly and the Statement of Condition is accurate. Retroactively, lawyers are there to advise their clients of the legal options after an issue arises with regards to the pay out of the security deposit (or any conflict with advance payments).

Bottom Line:

When leasing property and preparing advance payments such as a security deposit, landlords and tenants need to know the relevant laws involved so that they can both adhere to those laws and benefit from the protection the laws are designed to provide.

The Contents of this post is for informational purposes and should not be considered legal advice. This blog post does not establish an attorney-client relationship. The content and material on this web site is for informational purposes only and does not constitute legal advice. The content and material is not guaranteed to be correct, complete, or up to date. Information provided by or cited to third parties does not necessarily reflect the opinions of Seaside Legal Solutions or any of its attorneys, employees, agents, or clients. Your receipt of the information on this web site is not intended to create, and receipt does not constitute, a contract for representation by Seaside Legal Solutions. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this site without seeking the advice of an attorney.

GDT – LTE 3/14/11

Posted on by Seaside Legal

Joel has written another letter to the editor for the Gloucester Daily Times. It can be accessed here http://bit.ly/hvt6Fy and read unedited below.

I am writing today to say how disappointed I am to read that city officials have decided to withdraw a request to the City Council to accept $85,000 in grant money for a feasibility study related to wind turbines at Magnolia Woods. I am also writing to challenge this city to be more open minded to asking questions, getting answers, and thinking long-term before choosing a course. The city is currently facing a number of financial and infrastructural challenges that are a result of decisions made without first asking the proper questions and exploring the long-term benefits of various options; I would hate to see Gloucester continue to employ the use of blinders in choosing what paths it will take moving forward.
Citing push-back from a Ward 5 neighborhood meeting on the proposed Magnolia Woods turbines as the reason behind withdrawing the request, Councilor Verga is quoted in a recent GDT article as saying that residents’ concern about turbines compromising the cap on the closed landfill was “too much to overcome.” In the same article, the Mayor is quoted recognizing the need to work with the neighbors who would be impacted by the turbines but believing the necessary dialogue was “short-changed.”
The question cited by the Councilor of whether the site, a former landfill, could hold up under the weight of turbines is obviously a valid concern. Concerns about safety to those utilizing the nearby soccer fields, residents in the surrounding neighborhood, and wildlife indigenous to that region of the city are also valid and need to be answered before any project of this nature can move forward. Answers to these questions are exactly what a feasibility study would provide.
The need cited by the Mayor to work with the impacted neighbors and have a thorough dialogue with both the neighborhood and community as a whole regarding any turbine project is also paramount. However, if the necessary dialogue has been short-changed in any way it’s because the city is deciding not to have the important questions asked and answered by a feasibility study and then returning to the discussion with facts and figures.
Let’s remember, this $85,000 grant was not to build turbines—it was to ask questions, perform research, and determine whether turbines were a feasible option for Magnolia Woods. Why are we foregoing a thorough dialogue and the opportunity to have our valid concerns addressed regarding the proposed turbines by rejecting this grant offer? Is it the price tag? While the $4,750 (roughly 5%) local match required to receive the $85,000 grant is not $0, I challenge anyone to look at what the city has spent $5,000 or more on in the last decade and tell me contributing to this grant is wasteful in comparison. How much did we spend heating a nearly-empty school building this winter?
I’m not saying that turbines should be built in Magnolia Woods—I’ve seen footage of poorly located turbines casting shadows and generating loud buffeting noise upon neighbors. I’m not saying that they shouldn’t—I like the idea that the city could sell enough electricity back to the grid to zero-out the municipal electricity bill each year. All I’m saying is that before the city decides to abandon another project with the potential to positively impact the city, it ask questions, get answers and avoid putting back on the old blinders that have served us so poorly in the past.

GDT – LTE – 12/14/10

Posted on by Seaside Legal

Joel wrote to the Gloucester Daily Times regarding Gloucester schools and his letter to the editor was featured in the Tuesday, December 14, 2010, edition. You can find it here http://bit.ly/hHofw1 and reprinted unedited below.

I attended Fuller Elementary from kindergarten through fifth grade. It’s been almost 15 years since my last day of class at Fuller and, although I have since graduated from Brandeis University and Boston University School of Law, I still look back on my time at Fuller with great fondness and appreciation for the opportunities provided to me by that school. I also look presently at the situation of both Fuller and the local school system as a whole and wonder, “How did we get here?”

During my time at Fuller from 1990 to 1996, I was provided a wealth of resources beyond the typical classroom: In art class, I painted with watercolors and acrylic paints, made pinch-pots and other clay items fired on-site in the kiln, constructed structures out of wood and other materials, and learned the history and science behind the art we were making through slide and video presentations; in music class, I spent significant time hands-on with a variety of instruments in both a semi-soundproof music room and traditional lecture-hall; in gym, I utilized a full-size basketball court, auxiliary gymnasium, and an outdoor soccer/football field and baseball diamond; at lunch and recess I ate in a full-size cafeteria with kitchen and then played on a traditional playground, foursquare courts, asphalt basketball courts, and previously mentioned fields; when sing-alongs or theatrical performances were held, they were held in the large auditorium complete with lighting and sound equipment (old, but functioning).

The in-class experience was noteworthy as well. I was a student in Fuller’s Multiple Intelligences Program, which was based on the work of Howard Gardner. As a student in this program, my curriculum was structured on the theory that not every student learns in the same way as other students. I was in mixed 1st/2nd and 3rd/4th grade classes, my report cards were divided not into traditional subjects but into the seven (now nine) separate intelligences theorized by Gardner, and I received creative, unique instruction from my teachers. I flourished as a student—as did many of my peers who all learned the same core materials in very different ways.

Today, I talk to my 3rd-grader niece and other children on her soccer team attending various schools in the community. I hear stories about cafeteria tables occasionally being stuck in the “down” position and obstructing their path in gym as the same room doubles for both functions. I’m told about art teachers bringing craft-carts into the children’s primary class room and instructing the students to work from their desks. I read stories in the newspaper about the dilemma the city is facing as a result of a Charter School established in part on the idea that children need the opportunity to learn in individual and alternative ways and the ensuing financial stress put upon the school district as a result of the Charter School’s creation. And, of course, I hear about how Fuller sits nearly empty while we try to raise $500,000 for a feasibility study aimed at rebuilding West Parish—which is slated to cost $30-$40mil.

I’m guessing it would cost significantly less to repair, renovate, and renew Fuller than it will to rebuild West Parish. I’m also guessing that if progressive educational programs like the Multiple Intelligence program were still utilized in a school like Fuller, many Charter School students may have been content to stay within district. At bottom, I am simply puzzled as to how a Gloucester elementary school that, in the early 1990s, would have been able to provide solutions to many of the issues facing the school district today was allowed to wither and is now set to be removed entirely from our school district. How did we get here?

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