Knowledge Base

Custody and Child Support: Which Comes First?

January 1, 2014

Written by Dr. Lynne C. Halem


Professionals in the divorce field and lay-persons alike typically share the belief that custodial arrangements should not be determined by child support considerations. Thus in deciding parental time with their children, parents should focus on an arrangement that best serves their children’s interests, not one which yields the higher child payment for the recipient parent or the lowest obligation for the payor parent.


This objective is hard to dispute. Few if any parents would state that their child’s welfare is secondary to the financial impact of the amount of support they pay or receive. Yet despite the widespread acceptance of the best interest of the child being separated from child support negotiations, the Commonwealth of Massachusetts, in August of 2013, devised support guidelines which may well result in couples prioritizing or commingling support considerations with custodial determinations.


Let us be specific: The August 2013 Child Support Guidelines has created a formula based on four (4) different custodial arrangements, two of which are first time entries for the calculation of payment.


Version one is the same as the 2009 custodial classification. Here support is “based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.”


Version two is a brand new concept. Here the Guidelines stipulate that “if parenting is less than one-third from the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the Child Support Guidelines.” Note, Version One uses the word “approximately” one-third, but the approximation no longer appears in Version Two. How do we then account for less than one-third parenting time? Indeed how do we actually calculate time? Is the time when the child is sleeping worth the same as when the child is not sleeping? What about weekends vs weekdays for school age children or children in day care? With a little creativity, the questions can be endlessly promulgated.


Version Three reappears from the 2009 Guidelines. “Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent, with the lower weekly support amount.” Here again appears the word “approximately.” What in fact does that mean? Does forty-five percent  vs. fifty-five percent constitute approximate time? How about sixty percent vs. forty percent? And, too, how do we measure time?


As if this were not confusing enough, there emerges Version Four, which reads:

“Where parenting time and financial responsibility are shared in a proportion greater than one-third, but less than fifty percent, the Child Support Guidelines shall be calculated first with one parent as the recipient (Version One), and second as if the parties shared custody equally (Version Three). The average of the base child support and the shared custody calculations shall be the child support amount paid to the Recipient.”



In Version four we are once again faced with precisely defining time spent with each parent and, in fact, making judgments as to the value, percentage wise, of the time when the children are in the care of each parent. Does bath time count for more than carpooling time? Silly question, I guess, but the care question is far from silly. How in fact do we, as parents, determine the percentage of time we spend with our children. And more importantly, should we actually “waste” time by tabulating time?


Further, what if parents have a truly collaborative arrangement, accommodating childrens’ and parents’ needs to provide for the children’s care and the parents’ ability to work? Should these parents account for their willingness to be flexible by translating time into dollars?


Fortunately mediation offers an opportunity to take a step back from the support vs custody dilemma. Here the children can be placed first and foremost and the word “approximately” can truly be implemented without intricate gamesmanship used to create formulas based on unrealistic attributions of the “value” of parenting time. Here couples can really and truly focus on the best interests of their children in structuring support and custodial arrangements. This is not to argue for ignoring formulas set forth by the Court. To the contrary, formulas can be implemented without jumping through artificially imposed hurdles to increase or decrease support obligations.

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