Knowledge Base

Custody and Child Support,
Which Comes First 


January 1, 2014
Written by 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.

Version two is a brand new concept.

Version Three reappears from the 2009 Guidelines.

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

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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