USA – MASSACHUSETTS LAW AND PRACTICE Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
sent or future care, protection, training, and personal relationships. • Emergency – in an emergency where the child is physically in Massachusetts and the child has been abandoned or it is necessary in an emergency to protect the child from abuse or mistreatment. • More appropriate forum – Massachusetts is a more appropriate forum. This situation can arise when no other state has home state status, significant connection or emergency jurisdiction, or when another state declines to exercise jurisdiction because Massachusetts is a more appropriate forum. 3.2 Living/Contact Arrangements and Child Maintenance In a divorce, the Massachusetts Probate and Family Court will make determinations as to the children’s legal and physical custody. Legal custody relates to decisions regarding a child’s health, education, and religious upbringing, whereas physical custody is where the child lives day-to-day. If divorcing parties cannot agree on custodial arrangements, including a parenting plan for the children, either party can seek temporary orders from the court related to legal custody or physical custody pending a final adjudication. On a temporary orders basis in a divorce, but not a trial, there is generally a presumption of shared legal custody. Whether on a motion for temporary orders or at a trial, a court’s primary consideration for child custody determinations in a divorce is the best interests of the child(ren). In general, the court will seek to support and preserve each parent’s relationship with the child(ren) during and following a divorce. The court has significant discretion in making custody determinations. The Massachusetts Probate and Family Court also has jurisdiction over child support orders. It
is the responsibility of the divorcing parties, not the child, to seek a child support order. In gen - eral, the court issues child support orders pursu - ant to the Massachusetts Child Support Guide - lines. The Child Support Guidelines calculate child support using a formula based on a com - bined income of the parties up to USD400,000 and takes into consideration factors such as the parenting plan of the parties, whether a child is over 18 years old, and the cost to each parent for health insurance and childcare. In instanc - es where parties’ combined incomes exceed USD400,000, the guidelines provide a presump - tive minimum order, and additional child support on income over the combined USD400,000 is within the court’s discretion. A self-calculating worksheet is available to assist with the com - putation of child support pursuant to the Child Support Guidelines. Under certain circumstanc - es, the parties may agree, or the court may order, an amount of child support that deviates from the Child Support Guidelines, but any amount of child support is subject to the court’s considera - tion of the children’s best interests. Child support can be ordered for a child for as long as the child remains unemancipated. Eman - cipation for child support purposes is effectively determined by statute, Massachusetts General Law, Chapter 208, Section 28. While there are circumstances that constitute emancipation before, it is possible that a child could remain eligible for a child support order until age 23. 3.3 Other Matters In high-conflict child custody cases, there is often disagreement between parents on issues such as school choice, medical or therapeutic treatment, religious upbringing, and sharing of holidays. When divorcing parents who are joint legal custodians are unable to agree on these matters, the Massachusetts Probate and Fam -
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