December 2010 Newsletter

The Law Office of Susan Castleton Ryan, P.C., wishes all of you and your families a happy and healthy New Year.



There are specific rules for each court within the Commonwealth of Massachusetts, and the probate court is no exception.  If a matter relates to domestic relations, that is to divorce, separate support, paternity, and/or custody support and visitation of children, the Rules of Domestic Procedure must be followed.  Matters involving adoptions, guardianships, and other probate matters, the General Rules of the Probate Court and Uniform Practices of the Probate Courts apply.  Attorneys and Pro Se litigants alike must follow these rules, and complete service of any pleadings, (motions, complaints, affidavits) as specifically outlined in the rules.  This is especially important when a motion hearing is scheduled, as the opposing party is entitled to receive sufficient notice in advance of the hearing, to enable him/her or his/her attorney to prepare for the hearing.


Service, that is the delivery of the motion, complaint, or other document, may need to be given "in hand," by a disinterested person (constable or sheriff), or as directed by the Court.  While some courts allow service by electronic transmittal and/or facsimile, such service is not acceptable in the probate court unless the parties/attorneys agree to such service, and/or the Court orders such delivery.  Usually in hand service is required for hearings scheduled within seven to ten days of the date of service, whereas first class mail is acceptable service for a hearing ten days later.  In the event a Party has presented an ex-parte motion to the Court, the Court may issue an order with specific requirements as to when, where, and how service is to be completed, as well as a date and time, and location of a hearing when all Parties and counsel must appear.  Note that a Proposed Order must accompany any motions filed in the Plymouth Probate & Family Court, ex-parte or otherwise.  All courts require a Notice of Hearing date, unless specifically ordered by the Court, and a Certificate of Service, signed under the pains and penalties of perjury, as to who was served, when, and the type of service performed.



Sometimes situations arise that require an immediate hearing before the Court.  These include but are not limited to abuse and/or neglect of a child, withdrawal of monies from joint accounts by a spouse or co-owner, failure to return a child to the other parent, and/or removal of a child from the Commonwealth without the other parent's permission and/or a Court order.  There may be numerous other reasons to seek an emergency order, but failure to pay child support, or comply with orders/judgments of the Court may not rise to an emergency situation.


If there is an emergency, it is possible to appear in front of the judge assigned to the case for an ex-parte hearing, and/or to obtain a short order of notice for a hearing within a short period of time.  Ex-parte means without notice to the other side, denying that Party the opportunity to be heard.  There are important and legitimate reasons for having such a hearing, particularly if there is a threat to any child(ren), and/or liquidation or dissipation of assets that may never be recouped.  In order to assist the Court in determining whether or not a true emergency exists, anyone seeking an emergency ex-parte order must complete a detailed Affidavit in support of the emergency motion.  Plymouth County also requires that a motion be filed to waive notice of the hearing, in addition to the motion for a short order of notice.  A short order of notice is a request to the Court to schedule a hearing with all parties and attorneys present as soon as the court calendar allows.  Depending on the nature of the request/motion, the Court may enter temporary orders until the date of the hearing.  If there is a hearing, it is often only to schedule the hearing, and not to make a ruling on the relief requested.  Therefore, a second hearing is almost always scheduled, with instructions for service to the other side and/or attorney for the opposing Party.


Often the initial, ex-parte hearing is heard by a judge other than the one assigned to the case.  He/She may be reluctant to hear the emergency motion if it is really not an emergency, and/or can be addressed in the regular course of business, that is, scheduling it for the assigned judge's normal motion day.  Judges will frequently ask if notice was given by telephone, facsimile, and/or email, even though it is not required by the rules.


It is important to remember that most probate courts require all emergency motions be filed before 9:30 AM for the morning session, and by 1:30 PM for the afternoon session.  Failure to adhere to this and other local rules may prevent even a legitimate emergency motion from proceeding on the day it is filed.  If there is a question as to what each court requires, information is available in the Register's office or on the website for the particular Court.


Any issue related to a divorce, paternity, estate or other matter is important to the litigants, but may not be an emergency.  The clerks in the probate court's Registry office are not attorneys, and are not allowed to give legal advice.  Litigants representing themselves, that is Pro Se, should consult an attorney, including any available Lawyer of the Day, to review whether or not their request is in fact an emergency.  Once the motions, affidavit, and other documents are filed, the judge's clerk/judicial case manager may determine that the judge will not hear the motion that day.  If that occurs, it will be necessary to give notice pursuant to the relevant rules of court.



Important facts about this office:
1.     That Attorney Susan Castleton Ryan has been practicing since December 1991, focusing her practice on divorce, family law, and estate administration?

2.     That  Attorney Ryan's two assistants, Paula and Rachel, have been with Attorney Ryan a combined total of 15 years?

3.     That each case is managed by either Paula or Rachel with Attorney Ryan to insure accessibility with the office, prompt response to questions and concerns, and a liason to the court?

4.     That regular staff meetings and education development insures everyone on the "team" is up to date on each and every case?

5.     That anyone of the team is accessible by email or phone, although clients are always welcome to visit the office in person?
Issue: 22

scales of justice

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If anyone has a topic that would be of general interest, please do not hesitate to contact the office and let us know what items would be of general interest to the readers of this newsletter.
Susan C. Ryan, Esq.
Law Office of Susan Castleton Ryan, PC
(781) 982-8850

This newsletter is designed to keep you up-to-date with changes in the law.  For help with these or any other legal issues, please call our firm today.
The information in this newsletter is intended solely for your information .  It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.