Massachusetts attorney Jason V. Owens reviews when increased parenting time can result in a reduction in child support for non-custodial parents.
One of the trickiest issues in child custody cases is the delicate balancing act between parenting time and child support. Most Probate and Family Court judges will tell you that child custody (a concept that includes visitation and parenting time) is decided strictly upon each parent’s child-rearing abilities, while child support is decided strictly based on financial considerations. An increase in parenting time should not automatically result in decreased child support, or vice versa.
In 2013, however, the newly revised Massachusetts Child Support Guidelines complicated this idealized separation between custody and child support. The new Guidelines specifically tied the child support calculation to the specific amount of parenting time each party has with the children. Under the 2013 Guidelines, parents with 67% or more of the parenting time received “full” child support orders; parents with shared 50/50 custody would receive child support based only on a disparity in the parties’ earnings; and parents with between 50% and 33% of the parenting time would receive a kind of hybrid order, that averaged “full” child support with the much smaller amounts paid in most shared custody scenarios.
Many Massachusetts Probate and Family Court judges expressed displeasure with the 2013 Guidelines, where the new rules seemed to encourage “hour counting” and strategic requests for additional parenting time by parties seeking to reduce or increase child support. Today, only months before the release of the 2017 Guidelines, the “hour counting” provisions of the 2013 Guidelines remain controversial. Making matters worse, neither the Supreme Judicial Court nor the Massachusetts Appeals Court have provided a method for calculating parenting time under the Guidelines. Some judges count weekly overnights under a base parenting schedule, some judges include vacations and holidays, and still other judges focus on the frequency of non-overnight contact between each parent and the children.
A recent Massachusetts case, Davidson v. Davidson, illustrates the complicated issue of “hour counting”, and how the amount of parenting time can affect the method that Probate and Family Courts use to calculate child support in Massachusetts.
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In Davidson v. Davidson, a husband and wife were divorced in 2015 following a trial before William F. McSweeny, III, of the Middlesex Probate and Family Court. In the Judgment of Divorce, the judge granted the husband parenting time equal to 159 overnights visits per year, or 43.6% of all available overnights. In addition, the judge ordered the husband to pay child support of $304 per week. The judgment treated the wife as the primary custodial parent of the children, despite the husband being awarded 43.6% of overnights.
Under the Massachusetts Child Support Guidelines, a non-custodial parent is presumed to have 33% or less of the available parenting time and financial responsibility for the child(ren). If parties share parenting time equally, or approximately equally, the Guidelines provide that child support is only awarded if one parent substantially out-earns the other. If the non-custodial parent has between 33% and 50% of the available parenting time, then:
[T]he child support guidelines shall be calculated first with one parent as the [primary parent], 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.
In Davidson, the husband’s parenting time plainly exceeded 33% of the available of parenting time; however, the judge calculated child support as if the wife was the clear primary parent. Following the judgment, the husband appealed.
On appeal, the husband argued that the order granting him 43.6% of overnights was so close to a 50/50 custody schedule that child support should be calculated using the shared custody formula under the Guidelines, which would have resulted in $49 per week order, instead of the $304 per week order entered after trial. The Appeals Court found that the husband’s argument had merit, although the Court declined to confirm whether counting overnights is the correct method for all Probate and Family Court judges to use moving forward:
The husband has requested that we approve the calculation of his parenting time based on “overnights,” that we determine which of the two potentially applicable calculations methods applies, and that we set the amount of child support ourselves. We decline to do so. For any number of reasons, it is appropriate that the trial court make the first cut on such issues (and on whether any deviation from the standards is appropriate).
Nevertheless, the Appeals Court held that the trial judge did not address the husband’s argument fully enough in the Judgment of Divorce and Findings of Fact:
Although the specific [theory] adopted by the judge is not clear, it appears that … the judge must have rejected the husband’s argument that child support could not be calculated using the presumptive method that assumes one-third parenting time. In the alternative, if the judge accepted the husband’s argument, but nevertheless decided to deviate from the child support guidelines, he did not explain his reasons for doing so or support them by findings. … We therefore remand this matter for recalculation of the husband’s child support obligations for the relevant period and for the judge to explain his reasoning.
Although the lower court judge could (theoretically) “double down” on the $304 per week by entering detailed findings in support of the decision, other portions of the Appeals Court opinion suggest that a reduction in the husband’s child support would be more appropriate.
In its opinion, the Appeals Court noted that the former husband’s parenting time exceeded the presumptive share for non-custodial parents under the Massachusetts Child Support Guidelines:
As the husband accurately points out, under the child support guidelines, the amount of support is determined in part by how much parenting time each parent has been allocated in the divorce judgment. The base amounts in the guidelines (included in the guidelines worksheet) are “based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.” … Where the circumstances of a case deviate from that assumption, alternative computation methods are prescribed.
Pointing to the Massachusetts Child Support Guidelines, the husband argued that the court should recalculate his child support amount. Additionally, he argued that it should use the calculation method for when two parents share the financial responsibility and parenting time “approximately equally.” Based on his calculations, the husband argued his parenting time should result in a child support payment of only $49 per week, saving him $262 every payment:
[The husband] argues that 43.6 percent [of the parenting time] is so close to one-half that the judge should have used the calculation method that applies “[w]here two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren).” … According to the husband, this method would have generated a child support award of $49 per week … On the limited record before us, there appears to be some merit in the husband’s arguments.
Although the Appeals Court opinion was not absolute, it offers clear support for the husband’s argument; namely, that a parent who is entitled to more than 33% of the available parenting time is likely entitled to an alternate calculation method under the Child Support Guidelines. Perhaps more importantly, the decision illustrates the complex and often ambiguous relationship between parenting time and child support.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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