A question that is often asked of our Law Office is whether a party can seek a credit for child support he or she had been ordered to pay, but for a time period during which they had assumed primary custody and financial support of the child or children for whom the support order was established.
A question that is often asked of our Law Office is whether a party can seek a credit for child support he or she had been ordered to pay, but for a time period during which they had assumed primary custody and financial support of the child or children for whom the support order was established. The general rule is found in Massachusetts General Laws, chapter 119A, section 13(a), which states that a retroactive child support modification of this kind cannot be granted by a Judge, except for any period during which there is a pending complaint for modification. In other words, if one assumes custody and financial responsibility of a child, it is his or her burden to file a Complaint for Modification and request a change to the child support order. Otherwise, a court cannot grant a retroactive credit for any support paid prior to the date of filing of the Complaint.
On November 22, 2016, the Appeals Court held that there is a very specific and limited exception to this rule. In Rosen v. Rosen, the Court held that a judge can grant and apply a credit to offset a child support arrearage (amount owed) during a period of time when there was no pending complaint for modification if the following circumstances are met:
"[T]he support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor's direct support of the child as an alternative method of satisfying the payor's child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor's home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child's best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient."
While it is always best to seek relief directly from the Court via a Complaint for Modification if there are any changes to the custody or support agreement, the holding in Rosen v. Rosen provides much needed relief for those parents who assume responsibility for their child during extraordinary circumstances. It also encourages parties to put the best interests of their children first, without fear that they will be found in contempt for failure to continue paying child support to a parent who has voluntarily transferred custody of a child.
If you have questions regarding your custody or support order, contact our Law Office today to schedule a consultation.
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