Child custody and support cases are by far the highest emotionally charged cases. You need an attorney who will remain focused on the legal issues and guide you through the process. You need an attorney who is experienced and who thinks about what is in the best interest of you and your children. Your attorney however, does not represent the children (an attorney can be appointment for the child if necessary other cases require the need of a Guardian Ad Litem).

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Physical Custody and Legal Custody

Physical Custody (when the children primary reside) is different from Legal Custody (who makes the decisions relating to the children. It is often presumed that Legal Custody will be Joint so that the parents are able to mutually decide major life matters such as medical, educational, and social issues relating to the child. In the circumstances where Joint Legal custody is not practicable or when the parties are unable to communicate with one another in the best interest of the minor child then the court may have to consider sole legal custody to one parent. This decision is made with careful consideration. Without legal custody you have to obtain the permission of the legal custodial parent to obtain documentation relating to the child medical or educational.

In shared parenting plans the words “custody” and “visitation” are often not used. Instead “parenting time” is a phrase you will read about. Massachusetts seems to be leaning more towards shared parenting plans so as to allow both parties to effectively co-parent when the case warrants a shared plan.

Unemployed or Underemployed Party

Child support is often calculated using the Massachusetts Child Support Guidelines. There are however a number of factors that may be considered when determining if a case should is not a guideline case. When computing the child support both parties incomes (from all income sources) shall be considered, the amount of child care costs paid, the expense of health insurance, and existing child support orders paid. The issues often arise when one party is not employed to his or her ability or not employed at all. In the event one parent is not employed or is underemployed (ie: based on their background, education and experience) the court may attribute an income to the party. This becomes important when one party alleges they cannot work or can only work part time however, they have made no diligent efforts for reasonable gainful employment. If the court determines that this is the case then the court may attribute an income to one party and make orders based on that amount.

Social Security Disability Income

In child support cases one consideration that is often overlooked is when a parent (a noncustodial parent) is the recipient of social security disability income and the child(ren) receive a dependency benefit. The dependency benefit is computed in this circumstance as the income (in computing the child support guidelines) to the custodial parent and then the noncustodial parent is credited the amount of the dependency benefit by deducting the amount of the dependency benefit from the resulting child support calculation, all in accordance with Rosenberg v. Merida, 428 Mass. 182, 697 N.E.2d 987 (1998). The courts and counsel need to give this issue careful consideration

If your child support has already been ordered and this has not been considered then you should still take action and seek legal advice. You may be entitled to a credit towards what you have paid and in circumstances where it is alleged you owe significant child support (plus penalties and interest) this issue could be significant in reducing what is alleged to be owed.

Enforcing an Existing Order

In the event the court's ordered child support is not being paid and a party files a Complaint for Contempt actions against the other parent, the court also has the authority to order that the parent seek work and report to the family probation department or to the other parent as to their efforts to find reasonable gainful employment.

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