S. De Oliveira Law Blog

DCF Involvement with Overweight/Obese Parents

2011-07-27T15:33:00.002-04:00

I work with many families who have the Department of Children and Families (DCF) involved in their lives. DCF becomes involved when there is an allegation of child neglect or abuse. My cases have ranged from a parent being accused of failing to properly secure a baby in the car to a parent sexually abusing a child. These cases all have one thing in common: a parent is allegedly failing to properly care for a child. In some cases it's a misunderstanding, while in other cases it's a crime. The state usually doesn't get involved if a parent is properly caring for and protecting a child.

Recently a study was published that may want to change that. The study suggested that overweight/obese parents should have their children taken away from them because an overweight parent may raise an overweight child.

Being an overweight person should never, by itself, be a reason for DCF to take away a child. Perhaps there may be an argument that a parent can be so obese as to be unable to move in order to properly care for a child, such as getting up to change the child's diaper, or acting quickly enough to prevent a child from seriously harming himself. However, even in these examples, DCF should still not have the authority to take a child away from the parent because all of these issues can be addressed by other methods.

The state should not have the authority to take a child away from a parent only because the parent is obese.

Winning is more important that proving yourself right

2011-06-29T14:06:00.003-04:00

I recently had a client who wanted the court to know his side of the story and he wanted his day in court. Both parties had a history before the court, and the judge had little patience for either of them.

We went in on contempt complaints. Both parties claimed the other had failed to live up to their paternity settlement. My client knew he would win his contempt, but we were uncertain he would win on the other party's contempt. The other side did not want to take the risk and was willing to settle and reimburse my client's legal fees.

My client knew there was a chance the opposing side would win its contempt but he refused to settle. He wanted the court to know he was right. We went to trial and the court said that both parties were in contempt.

The client's insistence on proving himself right caused him to lose half of the case. Instead of getting what he wanted and being reimbursed for legal fees in a settlement, he got no reimbursement.

Family cases are often very emotionally charged, but you will do yourself a favor if you focus on winning instead of focussing on being right.

Tips for testifying in paternity matter

2011-05-19T15:31:00.000-04:00

The decision to go to trial is never an easy one. It takes a long time to prepare for trial, and to file all of the paperwork, pleadings, trial memorandums, proposed conclusions of law and issues of fact. Clients need to be aware of all costs associated with going to trial, and all avenues available to you in addition to trial.

If you decide to go to trial, you should meet with your attorney in order to prepare you for what to expect at the trial. The attorney should go over the questions she plans on asking you during the trial, what questions you should expect from the opposing counsel during cross examination, and inform you on how she expects the trial to go. You should feel free to ask as many questions of your attorney as you want.

During the trial, you need to remember that the judge wants to hear your story, but most importantly, the judge will focus on how your story affects your child. When testifying, keep in mind that you have to convince the judge that your position is the best position for your child and is in the best interest of your child.

If you truly do not believe that your position is in the best interest of your child, you should change your position because a judge will be able to tell that you don't believe your own story.

It's important to be 100% truthful in the court because not only will the judge know if you're lying, but the opposing counsel will know you are lying too and will make you look foolish during cross examination.

Marital Assets

2011-04-28T11:40:00.001-04:00

In Massachusetts, everything you own and everything your spouse owns will be considered a marital asset that can be divided during a divorce, regardless of how long you have been married. Typically if your marriage is a short term marriage, there fewer things will be divided because the Court will want to be fair. If it’s a longer marriage, say 4 or more years or you and your spouse have children together, then more things will be divided.

This includes bank accounts, retirement accounts, real estate purchased before the marriage or after the marriage that only has one person’s name on the deed or mortgage. Everything will be put in a “pot” for the Court to divide it based on what the Court thinks is fair.

If you are about to get married, you may want to consider a pre-marital agreement (pre-nup) in order to assure that what was yours prior to the marriage continues to be yours if the marriage should ever dissolve.

If you are about to thinking of divorcing, consider speaking to an attorney prior to filing for the divorce to discuss what may happen during the divorce and how a judge may treat your case.

For whatever your situation, the attorneys at S. De Oliveira Law, LLC will be able to talk to you about your specific situation. Contact us to schedule your free consultation.

Defending Yourself and Your Family Against The Department of Children and Families

2011-03-10T07:27:00.000-05:00

The Department of Children and Families (DCF) has the right to take your child away from you if it suspects that your child is being abused or neglected. The reasons may DCF suspect abuse or neglect can be as simple as your child going to the emergency room with an unexplained injury. Sometimes the parents have no idea how the child was injured, but DCF has the right to take custody of your child.

Other times, a parent or caretaker of the child is actually abusing the child. Sometimes the other parent may not even know that a caretaker is abusing the child.

If DCF is involved in your family because it suspects abuse or neglect, you must quickly find an attorney with the knowledge and expertise to handle your case as quickly as possible. When DCF takes your child, there will be an emergency hearing usually within 3 days where you will have to present your case to a judge to defend yourself and your family.

Our law firm has the knowledge and expertise you need. Attorney Sarah De Oliveira is a trial attorney with experience in representing clients in DCF trials and hearings. She is also an excellent negotiator and has a solid reputation as a zealous attorney. Attorney Paul S. Kitchin is our in-house appeals attorney. At S. De Oliveira Law, your case will be handled with care, knowledge, and expertise at all levels of litigation.

Call us as soon as DCF opens a file on your family. We will be able to help you during that difficult time.

Child Support For Non Married Parents

2011-01-14T12:02:00.000-05:00

Massachusetts requires that all parents pay child support to their children regardless of marriage status. This means that if you conceived a child in Massachusetts, you are required to pay child support.

The custodial parent of the child has the right to sue for child support regardless of the child's age. A custodial parent can come after the non custodial parent at any time for back child support. The custodial parent can sue the non custodial parent no matter how old the child is. If the child is 18, and the non custodial parent has never paid child support, the custodial parent can sue for 18 years of past child support. The court has the authority to order the non custodial parent to pay 18 years worth of child support.

If you have fathered a child in Massachusetts, you should protect yourself from a law suit years later by having a support agreement. At S. De Oliveira Law, we can help you customize a support agreement so that you are not forced to litigate an expensive law suit years later.

If you are the mother of a child in Massachusetts, you have the right to child support to help you raise your child. You may also have the right to back child support if the father has not supported the child in the past. At S. De Oliveira Law, we can help you and your child get the help and the support you are entitled to.

Contact us today for your free consultation.

Appeals

2010-10-14T07:03:00.000-04:00

Attorney Kitchin is an appeals attorney who has experience practicing the the Massachusetts Appeals Court. Client have come to the office requesting appellate advice and unfortunately there have been some occasions where we have been unable to help the client. That is typically because the trial attorney did not advise the client of the right to appeals and the extremely strict procedures and deadlines for an appeal.

If the courts have issued a decision that is unfavorable to you, it is extremely important that you speak with an appellate attorney as soon as you get the decision. Contact us today to reserve your right to an appeal.

Immigration consequences of criminal defense

2010-10-06T10:42:00.002-04:00

Criminal charges can have serious immigration consequences, even for seemingly minor crimes, and even without a conviction. If you are not a US citizen, make sure your criminal defense attorney knows the immigration consequences of criminal defense.

Status quo in family law cases

2010-09-28T14:09:00.003-04:00

Judges in divorce and child custody cases like to preserve the family status quo when making decisions. Therefore skilled divorce attorneys advise clients on how they can shape the family's status quo to the client's advantage before filing for divorce or custody.

You are not financially helpless when you file for divorce

2010-09-23T07:49:00.002-04:00

Some people considering filing for divorce are very concerned about their short-term financial future. They may worry they will not have any money to live on during the divorce case since they might not be employed and might have nowhere to live except the family home. You may be entitled to much more than you think, though. You own a part of everything you think of as "belonging" to your spouse. You spouse will likely be ordered to support you financially through the divorce using the marriage's funds. Consult a divorce attorney and you may find you will not be a helpless as you fear.

An OUI tip

2010-09-21T08:12:00.002-04:00

If you are pulled over by the police and you think you may be over the legal alcohol limit, consider refusing the breathalyser test. Refusing the test automatically suspends your driver's license for 6 months (but much longer if you have a prior OUI!), but giving the police strong evidence of an OUI offense could put you in the position of needing a criminal defense attorney.

Have a lawyer review your divorce settlement agreement

2010-09-20T08:57:00.000-04:00

Make sure a lawyer reviews your divorce settlement agreement before you sign it. A recent client, during her divorce, did not have a lawyer negotiating for her and did not have the divorce settlement reviewed by a lawyer. The ex-husband had a lawyer who negotiated and then drafted the divorce settlement. Several parts of the divorce settlement were quite unfair to the client, and have cost her more than a review by a lawyer would have cost.

Getting Ex-Spouse's Name Off the Mortgage

2010-09-17T12:45:00.002-04:00

If you bought out your ex-spouse's interest in your home as part of a divorce agreement, you are probably required to get your ex-spouse's name off the home mortgage by a certain deadline. This is a serious requirement, and if you cannot refinance to a mortgage in your name only, you may need to sell the house in order to get rid of your ex-spouse's mortgage liability. If this may apply to you, be sure to check with a divorce attorney.

Mediation and Divorce

2010-07-15T17:09:00.002-04:00

Mediation is a great alternative to a contested divorce or any post-divorce modifications. After you and your spouse have come to an agreement about the terms of your divorce with a mediator, you should review the agreement with another attorney to make sure that you understand all of the terms.

If you went through a mediation in the past and did not have an attorney review the terms of your agreement outside of the mediation, you should consider reviewing the agreement with an attorney. You or your spouse may not have understood a particular term in the agreement, and you may be missing out on what is rightfully yours.

The Importance of Communication

2010-07-03T11:00:00.004-04:00

Many people complain that their attorney never returns their phone calls. Attorney client communication is the most important thing that needs to occur during a divorce or criminal defense matter.

Cases are resolved so much more efficiently if the client is in constant communication with the attorney. At the law firm of S. De Oliveira Law, you will get your telephone call returned within 24 hours. We also ask that when our law firm calls you, that you also return the phone call quickly. Frequently we will need a piece of information that only our client has, and we need it quickly. Your case will run much more smoothly and efficiently if you are in communication with your attorney.

Jail Time in Child Support

2010-05-28T09:05:00.006-04:00

A Middlesex Judge has ordered a man to go to jail for contempt for failing to support his family. Click here to read the story.

The man owes his family $150,000 in past due support. Usually judges do not order a person to jail unless s/he is blatantly in contempt and has been warned several times in the past that s/he is in contempt.

Child support exists so that the child is supported by both parents. It took two people to have a child and it's unfair that only one person has the sole financial responsibility for that child.

"The custodial parent is not 'ordered' to provide child support because s/he is already supporting the child. Noncustodial parents often forget who has to pay for housing, utilities, food, clothing, and all the other expenses. These expenses typically add up to a lot more than than the noncustodial parent can see.

Noncustodial parents: you have a child and it's your responsibility to help provide for that child."

If you have a child support issue, contact our law firm for a consultation.

New Office Location

2010-05-18T21:21:00.005-04:00

S. De Oliveira Law has moved from Somerville to Framingham. Our new location is:

47 Franklin Street, Suite 2A
Framingham, MA 01702

The office space is on the second floor and is really great location for our law firm. Give us a call and make an appointment to come by.

Common Questions about Drunk Driving

2010-05-15T14:30:00.003-04:00

What happens if I get caught driving drunk?

For a person caught drunk driving the first time, if there are no accidents or property damages, typically you get a "continued without a finding" and you have to go to a drunk driving program that typically runs 16 weeks. (MAPS officers this program in Portuguese.) You also have to pay fines and court costs which can run over $2500. You also get your license suspended. If you're under the age of 21, the minimum penalties are much worse.

If you are caught driving drunk a 2nd time and there are no accidents or property damage, the minimum penalty is that you will have a 2 years loss of license, 2 years probation, a 14 in-patient drunk driving program, and over $4000 in fees, fines, and court costs. In MA, you face mandatory jail time if you are convicted of drunk driving more than three times.

If your blood alcohol level is greater than .08, you will be taken to jail if you are caught driving. If you have had more than one or two beers, it's in your best interest not to drive.

If you are caught driving drunk or under the influence, you have the right to refuse to take the breath test or to give the police information other than you name and your license. You will automatically lose your license for at least 180 days, but it will be more difficult for the state to find you guilty of driving under the influence.

My advise to you is simple:

Don't drive under the influence of drugs or alcohol because it's not worth it. You may end up killing someone because you are too drunk to drive. It will be far more cheaper for you if you call a taxi cab, have a sober friend drive you, or find a place to spend the rest of the night. A cab/hotel will be a lot less expensive and a lot less dangerous than driving drunk.

Common Questions about Drunk Driving, Part II

2009-11-30T15:53:00.001-05:00

Does Massachusetts use a breath test to calculate whether you're drunk or are there other ways?

Police Officers typically use "field tests" to determine if a person is drunk, and then they will use a breathalyzer to confirm their original findings. Officers may decided to administer the breath test when they stop you by your car, or after conducting the "field test," they can take you into the police station to give you a breath test there. You have the right to refuse a breath test, but you will automatically lose your driver's license for at least 180 days if it is your first offense.

Common Questions about Drunk Driving, Part 1

2009-11-18T13:15:00.003-05:00

How much alcohol can one person drink so that you can still legally drive?

It all depends on the size of the person, how much the person has had to eat that day and whether that person is taking medicine because some medicines will increase the effects of alcohol. However, if you're a man or a woman of average size and have no health problems and are not taking any medicines, one or two beers probably will not put you above the legal limit, which in MA is .08 blood alcohol content (b.a.c.) for a person 21 years old or older. If you are under 21, the legal limit is .02. Drinking any alcohol can bring you to .02 or greater.

The Importance of a Financial Statement in the Family Court

2009-11-16T12:25:00.002-05:00

In the Family and Probate Court of Massachusetts, you are required to file a financial statement in all divorce, child support, and child custody issues. Typically, you would fill out a financial statement and submit it to the Court prior to the first time you appeared before the Court. The only time you need to file a new financial statement would be if any of your financial information has changed, including the amount of money in your bank account.

Many people forget that they must update the financial statement if there has been any changes whatsoever. I remind clients to provide an updated financial statement to me at least one week before we appear in court. This minimizes the time spent in court because no time is wasted in trying to put together a new financial statement.
I went to court with a client a few weeks ago for a divorce, and he had all of his documentation ready and signed. If it were just him, we would have been in and out of court within an hour. His wife forgot to update her financial statement. The wife had changed jobs but neglected to update the financial statement.

We went in front of the judge, and the judge asked if there were any changes on the financial statement. The wife said she needed to change her financial statement. The judge could not issue the divorce without an updated financial statement.

Filing out the financial statement in court is very dangerous. When you sign the financial statement, you are signing it under the pains and penalty of perjury. Mistakes made in the financial statement may come back to harm you later in the litigation.

Services and Legal Options for Victims of Domestic Abuse

2009-11-02T11:05:00.000-05:00

Domestic abuse is a pattern of abusive behavior used by a partner to gain or maintain power and control over a family member. Both women and men can be victims of domestic abuse. Domestic abuse is common, and the abuse comes in many forms.

Physical abuses such as hitting, pushing, restraining, threatening, and sexual abuse are all forms of domestic abuse. Many people do not realize that abuse can also be emotional or economic. Emotional abuses such as humiliating, isolating from friends and family, and withholding information are all forms of domestic abuse. Economic abuses such as withholding money and requiring begging for money are also forms of domestic abuse.

Get Help

Victims of domestic abuse can get help. If you have a friend or family member who may be a victim of domestic abuse, you can help them by making them aware of the services below.

Support Services

There are many support services available to help victims of domestic abuse. SafeLink is a statewide, toll free domestic violence hotline available 24 hours a day at (877) 785-2020 that includes Portuguese support and can direct you to many services.

The Massachusetts Alliance of Portuguese Speakers (MAPS) offers outreach, prevention education, advocacy, individual assistance, translation/interpretation, guided referrals, and related services for domestic violence survivors. MAPS also offers a 40-week program that teaches men how to stop engaging in abusive behavior against their partners/spouses. You can call MAPS about these services at (617) 864-7600. www.maps-inc.org/services/

Legal Options

Victims of domestic abuse have a number of legal options.

Victims of domestic abuse can seek a restraining order against the abuser when there is an immediate danger of abuse, even non-physical abuse. A victim of domestic abuse who is married to the abuser can seek a divorce.

Immigration relief is also available if the victim is married to the abuser and the abuser is a U.S. Citizen or Lawful Permanent Resident. A victim of abuse in this situation may be eligible for Lawful Permanent Residence.

Crime Victims Have Path to Green Card

2009-10-23T12:06:00.003-04:00

A little-known path to a green card (permanent residence) exists for victims of some crimes. This path is the U visa.

The U visa is available to non-citizens who suffer physical or mental abuse as the victim of certain crimes. The eligible crimes include most violent crimes, kidnapping, trafficking, and criminal assault, but do not include crimes such as fraud and non-violent theft. The victim must also help the authorities investigate the crime with information or testimony, but the visa is still available if the authorities do not find a suspect or do not proceed with criminal charges.

Examples of people who may be eligible for the U visa are victims of domestic violence, mugging victims, and the surviving family members of a murder victim.

The U visa is a major benefit. A U visa lasts for four years, and after three years the U visa holder may be eligible for a green card (permanent residence). A U visa holder can also get employment authorization. Some immediate family members of the U visa holder are also eligible for their own U visas.

The U visa is potentially available even to immigrants who are undocumented or not in valid immigration status. It is even available to some immigrants who have a deportation order against them.

For example, imagine a Brazilian immigrant who is the victim of a mugging. The man reports the mugging to the police and provides information about the mugger. The police investigate and arrest the mugger. The mugger takes a plea and his case does not go to trial. The police are willing to certify that the man helped them investigate the mugging, and the man is eligible to file an application for a U visa. His wife and young children are eligible to receive U visas with him. The man and his family apply for and receive U visas. With the U visa the man receives work authorization, and he and his family receive four years of legal status to stay in the U.S. After three more years in the U.S., he and his family may be eligible for green cards (permanent residence).

If you have been the victim of a crime in the past and you have already helped the authorities investigate the crime, you may be eligible for the U visa based on that past crime if the authorities are willing to certify that you helped them in the past.