2017 MA Child Support Guidelines Eliminate Hybrid Orders for 33-49% Parenting Time

Nicole Levy reviews how the 2017 Massachusetts Child Support Guidelines will eliminate “hybrid” child support orders for parents with 33% to 50% of available parenting time.

In 2013, the Massachusetts Child Support Task Force tried an experiment. The 2013 Child Support Guidelines included language that reduced child support for non-custodial parents who had custody of their children between 33% and 50% of the available parenting time. The resulting “hybrid orders” were not pretty. Parents began counting hours within parenting plans, and litigation increased as parties and attorneys jockeyed for extra parenting time as a way to reduce child support. The 2017 Child Support Guidelines, released in July, have unceremoniously done away with the so-called “hybrid orders”. Few are complaining.

For a complete review of the other changes under the 2017 Guidelines, check out our full-length blog on what is new in the 2017 Massachusetts Child Support Guidelines.

Table of Contents for this Blog

2017 Child Support Guidelines: A Quadrennial Review Results in Elimination of Hybrid Orders
How “Hybrid” Child Support Orders Worked Under the 2013 Child Support Guidelines
An Immediate Problem: Hybrid Orders Under the 2013 Guidelines Were Too Broadly Defined
A Spike in Modifications and Litigation Over Parenting Time and Child Support
2017 Guidelines: Hybrid Orders Deleted
2017 Guidelines May Increase Modification Filings for Cases with Hybrid Orders in Effect, but Increased Emphasis on Deviations an Issue
Changing Negotiation Strategies for Pending Divorces and Custody Cases
A Welcome Change: Less “Hour Counting” Under the 2017 MA Child Support Guidelines
The Big Losers: Active Parents with More than One-Third of the Available Parenting Time

2017 Child Support Guidelines: A Quadrennial Review Results in Elimination of Hybrid Orders

In order to comply with federal child support regulation 45 C.F.R. § 302.56, the Chief Justice of the Trial Court in Massachusetts appoints a Child Support Task Force every four years to review the Massachusetts Child Support Guidelines and make recommendations for changes. The 2016-2017 Task Force was brought together in March of 2016 and issued its finding and recommendations in July of 2017. The changes in the new 2017 Guidelines go into effect on September 15, 2017, and are far from trivial. The 2017 Guidelines will control child support orders for parents throughout the state, including parents who are unmarried, getting divorced, already divorced, currently involved with the court system, or previously uninvolved.

Among the most interesting changes in the 2017 Guidelines was the decision to do away with so-called “hybrid” child support orders. Under the 2013 Child Support Guidelines, hybrid child support was an alternate method for calculating child support that was supposed to kick in when one parent had “more than one-third but less than one-half” of the available parenting time. Despite its theoretical soundness, this controversial addition in the 2013 Guidelines proved especially problematic in practice.

The elimination of hybrid child support orders under the 2017 Guidelines certainly cleans up a mess of the 2013 Task Force’s making, but it does not resolve the underlying question: how should Massachusetts courts calculate child support in cases where parenting time is split roughly 60/40 between the parents?

How “Hybrid” Child Support Orders Worked Under the 2013 Child Support Guidelines

Under the 2013 Guidelines, the amount of child support that a non-custodial parent would have to pay was tied directly to the amount of parenting time he or she had with the children. Although Massachusetts had always calculated child support differently for cases involving true shared (50/50) custody, the 2013 Guidelines marked the first time that Massachusetts tried to introduce a sliding scale for child support, with child support incrementally decreasing in proportion to the non-custodial parent’s increasing parenting time. Specifically, Page 7 of the 2013 Guidelines provided:

Where parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%, the child support guidelines shall be calculated first with one parent as the Recipient, and second as if the parties shared custody equally. The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.

As we pointed out in an earlier blog, parents who are granted more than two-thirds of the parenting time in Massachusetts receive “full” child support orders using a standard child support guidelines worksheet. In contrast, when parents shared parenting time 50/50, the 2013 Guidelines provide a very different calculation:

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.

(In other words, in shared custody scenarios, the Court calculates the Guidelines both ways – with each parent acting as the custodial parent – and child support equals the difference between the two calculations.) The 2013 Child Support Task Force decided that calculating child support for “primary” vs. “shared” custody was too narrow. What was needed, the Task Force decided, was a hybrid calculation reduced child support for non-custodial parents who fell short of true shared custody (i.e. 50% of the parenting time), but who had more than 33% of parenting time. Given the growth in parenting time enjoyed by fathers in the previous decade, the new hybrid order rule was seen at the time as a victory for Father’s Rights groups.

An Immediate Problem: Hybrid Orders Under the 2013 Guidelines Were Too Broadly Defined

The problems with hybrid orders under the 2013 Guidelines started with how the orders were defined within the Guidelines. Simply put, the 2013 Guidelines failed to restrict hybrid orders to a true “middle grounds” between primary and shared custody. Instead of restricting hybrid orders to a middle range between primary and shared custody, the 2013 Guidelines suggested that hybrid orders would apply broadly. As Attorney Owens wrote in a recent blog:

Our opinion was always that the range provided by the Guidelines for a hybrid order was simply too broad. For example, a better formula would have called for a hybrid child support order for a parent who has the children between 39% and 44% of the time. Such a spread would fall much closer to a true mid-range between primary and shared custody. However, by making hybrid child support available to all parents with between 33% and 50% of parenting time, the 2013 Guidelines created a major incentive for parents to “count hours” and jockey over weekday overnights in an effort to change child support.

After the 2013 Guidelines, the Appeals Court further confused matters by ruling that a child support should calculated based on the “shared” formula (rather than the hybrid formula) when a parent had as little 43% of the available parenting time. Even if the Appeals Court decision made sense based on the facts of the case, the ruling contributed to the sense that hybrid orders were a vague, unworkable mess at the Probate Court level.

Indeed, the overly-broad wording of the hybrid language ended up hurting an unexpected group: parents with shared physical custody. Prior to the 2013 Guidelines, a parent with 46% of the available parenting time would be viewed as having shared physical custody in nearly every case. However, where the 2013 Guidelines suggested that any parent with less than 49% of parenting time was only entitled to a hybrid order, parents with shared custody were harmed. (“Hour counting”, as further discussed below, also became an issue in shared custody cases, with one party frequently jockeying for 55% of the parenting time to push child support into hybrid territory for the other parent.)

A Spike in Modifications and Litigation Over Parenting Time and Child Support

Despite the constant mantra in the Probate and Family Court that child support is independent from child custody, human nature soon took hold after the 2013 Guidelines took effect. The “hybrid” calculation led parents to bean-count their hours with the children, causing more conflict over both parenting time and child support. Strange new arguments emerged from lawyers. If one parent had 11 out of 30 days one month, but 10 out of 31 days in the next, should child support be reduced? Suddenly parents were fighting for 3-hour dinner visits they felt would tip the hybrid scales in their favor. Parenting schedules became riddled with attempts add or delete a few hours here and there simply to try and receive (or block) one parent from having more than one-third of the time. Invariably, the justification for these oddly-formed schedules involved cynical arguments about the needs of the children. The bottom line: the hybrid orders tempted many parents to try to limit the other’s parenting time or seek increased parenting time in an effort to lower child support.

Judges caught onto this nonsense fairly quickly, and many simply would not stand for this behavior. (Often, I would hear a judge lecture the parties about how he or she does not appreciate hour counting from one or both parents.) Judges could see that the “hybrid” category, while well intentioned, was causing more turmoil in other areas of divorce and custody battles. Moreover, even as judges recognized that hour counting was happening, it was often hard for a judge to determine which party was trying to manipulate parenting time to affect child support in a given case. (Lawyers are paid to cleverly disguise such arguments.)

As judges grew more aware of hour counting, the problems compounded. After all, the Child Support Guidelines are the law of the land in Massachusetts, and judges within the state are legally bound to follow the Guidelines. And yet many judges simply ignored the Guidelines when it came to hybrid orders, failing to enter required findings when they chose to deviate from an otherwise required hybrid order.

2017 Guidelines: Hybrid Orders Deleted

The 2017 Child Support Guidelines unceremoniously do away with hybrid orders. Explaining the change, the 2016-2017 Task Force wrote:

The Task Force discussed at length the consequences of the changes that were incorporated by the 2012 Task Force with regard to when parenting time is more than one-third but less than fifty percent. The Task Force agreed that the provision relating to these circumstances needed to be eliminated. … The 2012 change increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.

The Task Force suggested that the first step in determining a child support order is actually creating a parenting plan that is best for the children, recognizing that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests. Child support should not be driving the parenting plan. Once the parenting plan is established, then calculations may occur.

The elimination of hybrid child support orders leaves open a number of questions, the main one being this: what happens to all the hybrid support orders that exist right now?

2017 Guidelines May Increase Modification Filings for Cases with Hybrid Orders in Effect, but Increased Emphasis on Deviations an Issue

With the 2017 Guidelines eliminating hybrid orders, we expect an increase in parents seeking a modification of existing agreements or judgments featuring hybrid orders. Indeed, even as the 2017 Guidelines provide a refreshing level of candor about hybrid orders, the sternness of the Task Force’s language when rejecting hybrid orders may fuel modifications in the aftermath. The elimination of hybrid orders under the 2017 Guidelines does not guarantee that such complaints for modifications will be successful, however.

If a party is currently paying or receiving child support based on a “hybrid” calculation, the change in the 2017 Guidelines is clearly one basis for changing the current child support order. However, the parties and counsel must carefully consider the real-world consequences of the elimination of “hybrid” orders before filing a modification action. Parties who seek to modify child support based solely on the elimination of the hybrid order may struggle in court, absent a substantial change. However, if a new modification request comes before a judge that is based on more factors than just the elimination of hybrid orders, such as changes in income or the parenting schedule, then the modification is more likely to be successful.

Lastly, it should be noted that for the first time, the 2017 Guidelines expressly encourage judges to deviate from the Guidelines when the facts of a case warrant it. Deviations under the 2017 MA Child Support Guidelines is a subject we will be exploring in an upcoming blog, but for now, we will say this: one reason the Task Force chose 2017 to encourage deviations was probably because of the removal of the hybrid orders from the Guidelines. The thinking goes like this: just because hybrid orders created problems in practice, the thought behind hybrid orders – i.e. that parents who have around 40% of the available parenting time should pay less child support – remains a valid. To the extent that such parents may be harmed by the elimination of hybrid orders, the Task Force’s urging of judges to exercise their authority to deviate from the Guidelines may be intended to prod judges to enter hybrid orders by deviating from the Guidelines. In short, even if hybrid orders are no longer automatic under the Guidelines, many judges may exercise their authority to deviate from the Guidelines to preserve existing hybrid orders or enter new ones.

Parties seeking to modify an existing hybrid order should be mindful that a judge may seek to preserve the hybrid order by simply deviating from the 2017 Guidelines to keep the hybrid order in place. Although deviations require judges to enter written findings, the findings and the analytical process are generally simpler for a judge when he or she is being asked to preserve an existing deviation (from a prior agreement or order) versus deviating from the Guidelines on an initial order.

Changing Negotiation Strategies for Pending Divorces and Custody Cases

The elimination of hybrid support orders will have a pronounced impact on pending divorce and custody cases. Suddenly, non-custodial parents cannot rely on the “hybrid” support system being presumptive (or even an option), and many parents will need to adjust their goals to suit the options offered by the new Guidelines. If the parents agree to continue to use the “hybrid” number, despite the Guidelines not including this calculation, a judge can approve the deviation. However, parents who argue for a hybrid order after September 15, 2017 will find themselves working against the Guidelines, rather than with them. Hybrid orders will be attainable in some cases, but the degree of difficulty to obtain such orders is likely to increase significantly.

Ironically, the change may have a larger impact on custody and parenting time negotiations than child support. Under the 2013 Guidelines, a non-custodial parent only needed a bit more than one-third of the time to reduce his or her child support order. With hybrid calculations no longer an option, the incentive will increase for non-custodial parents to pursue a more drastic remedy: shared physical custody.

A Welcome Change: Less “Hour Counting” Under the 2017 MA Child Support Guidelines

One of the worst results of the hybrid support system was that it resulted in parents “counting hours” in an effort to accumulate enough parenting time to pursue a hybrid order. Because the 2013 Guidelines did not define how “parenting time” should be measured, parents and attorneys would count hours per week, overnights and even holiday and vacation time. (Indeed, programs like Custody X Change enable attorneys to calculate an entire year’s worth parenting time almost down to the minute.)

Hour counting ultimately created more tension between parents than before. It was no secret as to why a parent may be pushing for a “few extra hours.” Some judges were constantly on the alert for hour-counting while other judges dutifully noted that “the law is the law”, and if the Guidelines require hour-counting, then attorneys should get out their calculators. With more child support money on the line, litigation increased while pulling the focus away from the needs of the children. Eliminating the hybrid support presumption is no magic bullet, but it was the right thing to do.

The Big Losers: Active Parents with More than One-Third of the Available Parenting Time

Unfortunately, there are parents who will not benefit from the elimination of hybrid orders. For example, consider a parent who has the children 40% of the time, and where all of the children spend in school falls during the other parent’s time. For the nine months of the year, when school is in session, the reality is the school is responsible for monitoring and supervising a large chunk of a child’s waking hours. A hypothetical parent with 40% of the available parenting time – all of it outside of school hours – is precisely who the hybrid order was intended to assist. This parent loses under the 2017 Guidelines.

I have represented plenty of clients with twelve or thirteen days per month with their children who fit neatly into the hybrid category. A hybrid order allowed that parent to benefit from a break on child support; not a full break, but enough to fairly compensate him or her for the time that the children were with that parent. Without that break, these parents face a full support order, or perhaps pushing for a few more days to seek a 50/50 support order. The 2017 Guidelines are unlikely to make existing hybrid orders disappear overnight, but for parents with new cases, the degree of difficulty just increased for obtaining a below-Guidelines child support order.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.