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Child Custody Matters Can Be Complex When Parents Do Not Agree

Last updated on October 30, 2023

Usually, the most contested issue in a divorce and subsequent modifications is custody of the children, and any corresponding child support. Once the basic premises are broken down, however, it becomes much easier to see what the realistic options are, and what factors the Judge will look to when making a custody and child support determination.

What Is Custody?

There are two types of custody: Physical custody and Legal custody.

Physical custody pertains to where the child resides for the majority of the time. Historically, physical custody was awarded to mothers, who were traditionally the stay-at-home parent. Today, however, it is more and more and common for both parents to spend equal time outside of the home and to share in all caregiving for the children. As such, it is important to look closely at both parents’ contributions to the child’s needs as well as what will be in the child’s best interests moving forward.

For the most part, a Judge will not alter the designation of a child’s primary physical custodian, unless the parties agree to a different custodial arrangement or there are circumstances which show that a change would be in the child’s best interest.

Legal custody pertains to major decisions concerning the child, such as medical decisions, religious observance and the choice of educational institutions. Generally, both parents maintain joint legal custody following a divorce, as it is presumed that they should both have an equal say in major decisions regarding their child. However, in circumstances where parents cannot effectively communicate regarding their child’s well-being, or where there are restraining orders in place, sole legal custody may be granted to the parent maintaining physical custody.

How Is Child Support Determined In Massachusetts?

Per statute, every parent is obligated to provide financially for their child, regardless of whether they obtain custody or even maintain a relationship with their child. Child support is calculated according to the Massachusetts Child Support Guidelines, which were modified in 2021 and became effective on October 4. Only in select circumstances will the Judge deviate from these guidelines, which are designed to provide support to the custodial parent for the benefit of the child, while giving certain credits to the parent paying child. A custodial parent is presumed to have parenting time 2/3 of the time, while the non-custodial parent has parenting time 1/3 of the time. In situations where one parent has physical custody for more than 2/3 of the time, the Court may deviate from the guidelines and provide a greater amount of support.

In situations where both parents share physical custody, the guidelines are run “against” each other, as if each parent were the primary custodial parent. Shared physical custody means that the parties share parenting time and financial responsibility equally or almost equally.

For a link to the Massachusetts Child Support Guidelines, please click here.

Child support is always modifiable if there is a material change in circumstances, such as loss of employment, increase or decrease in salary, commencement of higher education, termination of alimony or incarceration. It is also modifiable at any time if the resulting child support order is different from the current order. In other words, if you have a child support order from prior to October 4, 2021, it is likely for a different amount than the guidelines now result in, which may warrant a modification.

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