Massachusetts Divorce Lawyer Blog

The new modified Massachusetts Child Support Guidelines (see the Task Force Report and new Guidelines) became effective January 1st but not without the controversy that normally trails such changes. Massachusetts' divorced (and otherwise separated) fathers have hounded the promulgators of child support guidelines for almost as long as they've been around and several years ago succeeded in advocating for less financially imposing obligations on non-custodial parents. The ever-active Dr. Ned Holstein of "Father's and Families" was on the most recent task force in 2008 that worked on revamping the Guidelines and he ended up issuing a dissent in an interesting Minority Report in which he was partially joined by two other of the 12 task force members. The Task Force was chaired by Paula M. Carey, Chief Justice of the Probate and Family Court. Then, earlier this month, Fathers and Families made a federal case out of their objection - filing for injunctive relief at the Federal District Court in Boston. However, on January 5th, Judge Woodlock decided that his court shouldn't be addressing a state regulation, so look for the matter to be filed in state court in the near future. For now, the new Guidelines rule. I have fielded questions about whether the new guidelines apply in as yet undecided cases when the cases were filed before January 1st. The short answer is that, yes, they do. However, I believe that one can reasonably argue that if there is to be an order for retroactive child support (going back to a point before January 1st) that at least for the pre-January 1st period, the old guidelines should apply.

A recent article titled "Not Your Dad's Divorce"  by Susanna Schrobsdorff at Newsweek.com about the national "shared parenting" trend brings to mind the status of the shared parenting (or shared custody) concept in Massachusetts divorce law (and related areas, such as paternity matters). It's a steadily progressing concept among Massachusetts lawyers (whether it is "progressive" is an altogether different question) and there have been recent bills submitted in the state legislature that would create a presumption in the courts that divorcing (or otherwise separating) parents should have shared custody, thereby placing the burden on a challenger to show why it is not in the child's best interests to have it (see HB 1460 and SB 994). Also, in 2007 Governor Deval Patrick voiced his support for such laws. For now, however, judges are not compelled to presume that shared custody is in a child's best interests, but there is steady pressure to move toward that concept. 

The increasing popularity of the "shared parenting" idea is evident in the proposals and writings from diverse sectors, such as the "Fathers and Families" organization (of course) and the Massachusetts chapter of the supposedly non-biased Association of Family and Conciliation Courts (AFCC) which has published "Planning for Shared Parenting - A Guide for Parents Living Apart".  The AFCC pamphlet was created in collaboration with at least two Probate and Family Court judges, as well as Massachusetts divorce lawyers and prominent mental health practitioners.  

One can see that, even without the shared parenting presumption written into a statute, courts in Massachusetts  (and nationally) have become more open to the notion of shared parenting being in a child's best interest.  Notwithstanding this trend, my experience is that, for various reasons, even fit fathers frequently choose not to seek shared parenting or, even, expanded parenting time. However, my experience, also, is that fathers who do choose that route by vigorously advocating at court succeed in at least expanding what might have been their post-divorce (or separation) parenting roles. The legislative approach would lessen  a father's reluctance to fight for shared parenting. At least, that's the idea, for proponents of this approach wish to mandate a judge's awarding shared parenting. Under such Massachusetts divorce legislation judges would have no discretion to award sole custody absent the existence of abusiveness or other factors that raise the risk of harm to children. Opponents of such legislation feel that judges must be able to weigh all factors to determine the best interest of a child without any presumption pressing in favor of any particular result - whether it be sole custody or shared parenting.

This posting is very general and certainly doesn't address all of the shared parenting implications in Massachusetts divorce law, including its effect on child support and removal of the child to another state. The shared parenting concept is part of a large and complex debate, much of which can be be found on Web sites and blogs. I urge any parent who finds himself or herself facing divorce or separation to review their history and their aims with an appropriate professional. And keep in mind that, whatever approach is chosen - whether it be negotiation, mediation or litigation - the goal should always be achieving what is in the best interest of the child.  

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