Massachusetts Child Support Guidelines and Shared Parenting: Wrestling With Those Puzzling Provisions of the 2013 Guidelines (Part Six of Ten)

In Part Five, I began to discuss the puzzling new provisions of our current 2013 Guidelines and ended with the presentation of what I see as seven inter-related and overlapping issues, which I will further examine in this part using a recent court case as an example.  First, a short restatement of those basic seven issues (for a more detailed description of these issues themselves, see Part Five again):

1. How do we count parenting time to arrive at percentages?
2. When and how should we deviate when the noncustodial parent has less than 33 percent?
3. What does "approximately equally" mean?
4. What does "approximately one-third of the time" mean?
5. Do we want dramatic changes at the 33 percent line?
6. What does “average” mean here?
7. Must the “recipient” always be the parent with more parenting time? 

Nearly all of these issues arose in a recent post-divorce case. In it, I represented a father with less parenting time and less income than the mother. Father believed he had his children 36-38 percent of the time, while Mother claimed he had 33 percent or even less. How to calculate time – days, nights, school days, weekends, holidays – is an open question that threatened to be a big one for us before we managed to settle right before trial, although without resolving that issue.

The 2013 Guidelines unfortunately made percentage of time important without also stating how to calculate it. Before the 2013 Guidelines, there was rarely a need to calculate parenting time with precision. Case law pre-dating the new guidelines suggests night time and sleeping hours cannot be discounted in favor of “quality time” during the day. Katzman v. Healy, 77 Mass.App.Ct. 589, 594 (2010) (" The law has not…neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it.”) But that 2010 case by itself is insufficient to answer the questions posed by the 2013 Guidelines, and there is almost no help from other cases or statutes. Had we gone to trial, Father and Mother would have advanced evidence and arguments for very different ways to count time and it is uncertain how the judge would have ruled.

Another question was how to calculate support for the new 33-50 percent parenting time category. Father’s income was slightly under $100,000, and Mother’s was about $200,000. If the parenting share was an approximately one third/two thirds split, Father would pay $290/week to Mother. I argued Father was in the new 33-50 percent zone and should benefit from the second cross-calculation.

Here’s where it gets interesting. If Father was in that new zone, we needed to “average” the $290/week sole custodial support award from Father to Mother with the joint custodial award, a $308/week support award from Mother to Father. The literal “average” of $308 and $290 is $299. I argued the “average” should require the use of a negative number for the smaller number, to indicate the difference in direction, following mathematical logic and a belief the intent of the averaging was to effect a perfect compromise. The numbers to be averaged were nearly equal, but in opposite directions, and so I reasoned we should take the average of $308 and -$290, or $9, thus requiring a payment of $9 from Mother to Father.

I contended we should treat the “average” in all cases in a mathematically consistent way, as the true midpoint. When numbers to be averaged are going in the same direction, that is, when the parent with less time also makes more money, and would be the payor under both a joint custody calculation and a sole custodial calculation, the “average” would properly yield a number exactly between those two numbers, a perfect compromise. But in our very different case, a mathematically consistent compromise between my client’s paying $290 and his receiving $308 would be an award to him of $9. That $9 number would be the precise midpoint between the numbers to be averaged if graphed as a positive and a negative number to reflect their opposite directions.

Opposing counsel countered that language in the guidelines suggests the “recipient” is always the parent with more time; furthermore, there is no support at all for my crazy idea ever to use a negative number when calculating the average. The Guidelines state: “The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.” They speak of averaging the base child support paid to the recipient and the shared custody cross calculation paid to the recipient.

Still, if the recipient is always the parent with more time, and we must always use the literal average, then how could we justify using this literal average $299? Furthermore, if someone had to pay $299 and it had to be Father, why would Father then have to pay $9 more than the $290 he would have paid with less parenting time, that is, under a straight one third/two thirds split?

Imagine if the variables had been only slightly different – a real possibility – with numbers to average being exactly equal, $300 to him and $300 to her. The average would then also be $300. So who pays whom? The literal average will properly function in all cases where the putative support numbers go in the same direction, as it would be the exact compromise, equidistant between the two positive numbers. However, it is logical to require use of a negative number for one of the numbers when they represent transfers in opposite directions, to get the number that is similarly the real compromise, the true midpoint between those numbers to be averaged, here (-$300 +300)/2 = 0, and in my actual case, (-$290 + 308)/2 = $9.

In many cases, results would be even more skewed than in my real-life example and the slightly modified hypothetical I just posed, if we merely insisted upon using the literal average without the negative sign, and always required the parent with less time to pay the other. In fact it is in all cases where the parent with less time also has less income that results skew in the wrong direction with such an approach. In the most extreme examples, this literal approach yields the absurd result that the payor would pay more than his/her actual available income! I will demonstrate that next.

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 In Part Seven, I will show those most absurd results of the new formula using a literal "average".

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines and Shared Parenting: Puzzling Provisions in the 2013 Guidelines (Part Five of Ten)

The 2013 Massachusetts Child Support Guidelines introduced some interesting but puzzling provisions. As I said earlier, the 2013 Guidelines represented the next awkward step, after that first, giant leap of the 2009 Guidelines, to incorporate evolving principles of shared income and shared parenting. Now I will begin to discuss, in this and the following several parts of this series, that next awkward step. The 2013 Guidelines created a new category between sole and joint custody for parents who have their children between 33 and 50 percent of the time. For them, support is to be the “average” of the amounts that would be paid under joint custody (equal or "approximately" equal parenting time) and sole custody (the "approximately" one third/two thirds split).

It remains unclear how and when this new cross-calculation should apply, however, and where the boundaries lie among the new categories of parenting time. I have found several inter-related and overlapping problems with the new shared parenting and other provisions of the 2013 Guidelines, which together create these new, vague categories of parenting time.  To see directly for yourself what I will be discussing, read the 2013 Guidelines here, particularly the "Parenting Time" provision on pages 6-7 and the "Deviation" provisions on pages 11-12, specifically paragraph 13.

Others have already written about some of the problems these new provisions present. Justin Kelsey observed that use of the term “approximately” is vague, and that calculating the average “sounds simple, but in application this will be the most difficult new section because it is not entirely clear when to apply the new formula and because at times the results will be counterintuitive.” Justin Kelsey, "A Mediator’s Guide For Understanding the 2013 Child Support Guidelines Changes," Family Mediation Quarterly, Vol. 12, No. 3, pp. 9-19 (Summer 2013). William and Chouteau Levine complained that while the provision for upwards deviation for parenting time under 33 percent is vague, the “greater but not equal shared parenting” provisions, by contrast, appear “way specific.” William and Chouteau Levine, 2013 Child Support Guidelines Preview, Part 5 Slicing the Parenting Plan?, Levine Dispute Resolution Center: Divorce Mediation Blog (Aug. 28, 2013). 

In those early articles on the 2013 Guidelines, commentators had only begun to scratch the surface of a big problem, or several inter-related and overlapping ones actually, which I have organized for descriptive purposes into the following seven issues:

1. How do we count parenting time to arrive at percentages? Do we count nights? Days?Actual hours? If so, do we include sleeping hours and do we count them differently? Do we count school time, and if so how, and who gets credit: the parent who drops off the child, who picks up the child, who picks up the child when sick, who has primary custody? What about weekends and holidays? Do we count them the same as school time, or more because they constitute “quality time”?

2. When and how should we deviate when the noncustodial parent has less than 33 percent? A provision allows upward deviation if the noncustodial parent has less than 33 percent of parenting time. When should we deviate? At 32 percent? At 25 percent? By how much?

3. What does "approximately equally" mean? What is “approximately” half or equal time? Is it 46 percent? 48 percent? 49.5 percent?

4. What does "approximately one-third of the time" mean? What is an “approximately” one third/two thirds split? When does “approximately 33 percent” cease to be that and become “between 33 and 50 percent”? Is 34%/66% approximately one third/two thirds? How about 37%/63%? But don’t the guidelines suggest the second cross-calculation applies to any number between 33 and 50 percent?

5. Do we want dramatic changes at the 33 percent line? If we can deviate upwards at 32 percent and use the second cross-calculation at 34 percent, the changes at that line could be extreme, especially if the parent with less time also has a much smaller income.

6. What does “average” mean here? Is the “average” always the literal average of the two numbers, both when it would be of putative amounts paid by the same payor, and when it would be of putative amounts paid by different payors to each other? Should we use a negative sign when taking the average of numbers representing transfers in opposite directions, to find the true compromise? Without the negative sign, averages in cases where the parent has both less time and income skew in the wrong direction, contrary to the guidelines’ rationale. Instead of benefitting parents when they have more than 33 (but less than 50) percent of the parenting time, it would punish them. In extreme cases, support computed that way would exceed the payor’s actual available income!

7. Must the “recipient” always be the parent with more parenting time? Is the parent with more time the only one who can receive a child support payment? Can we shift the presumed payor and recipient?

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 In Part Six, I will begin to explore these problems through discussion of a recent court case.