Untying the Knot: Child Support and Custody

As I explained to my sister, one of the reasons getting divorced is so much more expensive and time consuming than getting married is that often, rights and responsibilities regarding children have to be sorted out in divorce, things that did not have to be figured out in order to enter into marriage.

In Massachusetts,   Chapter 208, Section 28 speaks to the question of the care, custody, and maintenance of children, including child support, and provisions for education and health insurance in divorce.  This is separate and apart of the child support guidelines - discussed later.

A good stating point is to understand some terms that you’ve likely heard before.

1. Physical Custody: This refers to which parent the child lives with.  Joint physical custody is possible, however, it works best when the parents live near each other – this allows the child to have a steady routine.  This does not mean that if one parent is the sole or primary physical custodian, the other parent can’t see the child.  The other parent has a right to visitation or parenting time with the child.  However, judges have the discretion to deny this if the parent is unfit.   

2. Legal Custody: Here we’re talking about the right and obligation to make decisions about the child’s upbringing.  This mostly refers to the “big stuff.”  For example, religion, schooling, medical care (not bedtime).  This is more easily shared, and the parents can have joint legal custody even if they live very far apart.  Again, parents have a right to legal custody of their children, but it can be denied if the parent is unfit.

One important thing to keep in mind, is that custody (whether physical or legal) are separate and independent of child support.  A parent with no legal or physical custody can be ordered to pay support, and a parent can’t deny the other their custody rights due to non-payment of support. 

The court makes decision regarding custody based on the best interests of the child.  Decisions about child support are based on the child support guidelines in addition to the best interest of the child.

The Child Support Guidelines define what constitutes income, and sets forth the factors judges should consider in setting the order amount.  Among them are: parenting time, child care costs, the age of the children, provision of insurance or for medical expenses, and other orders or obligations.

Under the guidelines, child support can be modified every three years, or when a substantial change in circumstances has occurred, for example, health insurance was previously available, and is no longer available, etc…

Judges and/or the parents (with judge’s approval) can also deviate from the guidelines, that is come up with some other number, if the amount of the order provided by the guidelines would be unjust or inappropriate in that particular family’s circumstances, and it is in the best interest fo the child.  An example of such a circumstance might be, a child with extraordinary medical expenses, or in very low income, or high income families, where the guidelines create a disparity that is unreasonable for one of the parents.   

We’re almost done with marriage and divorce, next, a discussion on prenuptial agreements, a tool families can use to make the decisions that are right for them, rather than submitting such decisions to a judge.