Massachusetts Child Support Guidelines and Shared Parenting: Skewed Results with a Literal "Average" (Part Seven of Ten)

As I began to explore in Part Six, the 2013 Massachusetts Child Support Guidelines formula for the intermediate, shared parenting category, of 33-50 percent of parenting time, is quite poorly conceived and drafted, in that it does not specify the use of a negative number in computing the "average" where it is an average of transfers by different parents one to the other.  Literally interpreted, the formula works well, and as designed, in all cases in which the parent with less parenting time also has a higher income.

Where it doesn't work, and the results skew in the wrong direction, in a manner contrary to the rationale of the guidelines, is in the case where the parent with less parenting time also has a lower income. This was an oversight by the guidelines committee, who probably failed even to consider that situation, and most certainly failed to test the formula for that situation.  Such an oversight is unfortunate, as the lesser-time parent who most needs the "break" or "credit" for extra time is the parent who makes less income than the primary custodial parent.  But under a literal interpretation of the guidelines (and particularly the term "average"), the literal results obtained for such a parent are absurd as the effect could be to punish rather than reward the extra time.

In many cases, results under the literal average approach would be laughably ridiculous. Take this example: A couple with one child mediate their divorce, and decide Mother will have 40 percent of the parenting time and Father 60 percent. The available weekly income, after deductions, is $4500 for Father and $200 for Mother. Mother would pay $22/week to Father if he had sole custody (one third/two thirds split), Father would pay Mother $730/week if she had sole custody, and Father would pay Mother $708/week if they had equal time. With their actual 40/60 split, the literal average calculation would be $365. If the parent with less time must pay, that would mean Mother would need to pay Father $365 per week, nearly double her available income of $200! If instead we used my proposed negative sign (which should have been explicitly included in the formula) to compute the average and allowed the parent with more time to pay, we would get a much more reasonable payment from Father to Mother of $343, the perfect compromise between putative transfers in opposite directions.

It is not only in such extreme examples, but in all cases involving a parent with both less parenting time and less income, that use of the second cross-calculation with a literal average will skew in the wrong direction, as will be demonstrated in charts in the next blog in this series. Under a literal interpretation of average and a requirement that the parent with less time always pays, parents with both less time and less income would actually have a disincentive to gain more than 33 but less than 50 percent of the parenting time, as they could pay more that way, sometimes way more. In fact, they would do well to have exactly 33 percent, as they could pay more both if their time were one percent less (through upward deviation) and if it were one percent more!

One solution to this problem is to interpret the guidelines to allow the person with less time and income to receive child support from the richer, primary custodial parent, as would automatically occur if we used the negative sign as I propose to compute the average of putative transfers from different payors to each other. Guidelines calculations flow logically from the rationale of the shared-income model. The method is to add together the parents’ available incomes, then deem a portion as shared support, and finally allocate from one parent to the other relative to income. That basic approach suggests such an outcome is possible, fair and logical; furthermore, it comports with the preamble’s goal that “to the extent either parent enjoys a higher standard of living” the child should be “entitled to enjoy that higher standard.”

A second solution would be instead to deviate from, and effectively ignore, all calculations where payments from different payors are to be averaged. Effectively ignoring the literal average, perhaps by deviating in all these cases using the explicit disproportionality provision, might be the more reasonable course, as the real problem is that the guidelines failed to account for this particular situation.  There were economists who advised the guidelines committee, but they appeared to have done so only before the guidelines committee deliberated and wrote the new guidelines (this time, the committee was a small group of a few judges and lawyers who work in the system, and there were no economists or accountants serving directly on the committee, as there had been for the previous guidelines committee that created the 2009 Guidelines), and so this glaring mistake was not caught before the guidelines were completed and became final and effective.

However we interpret the new provisions, problematic policy implications will persist. There may be unwelcome incentives to manipulate the dependent variables of child support and parenting time to influence the other, especially while these new provisions remain murky. Perverse incentives and consequences may always exist to some degree in any child support scheme. Our goal should then be to give direction that is as clear, predictable and fair as possible, to guide parents to a result in their children’s best interests.   This unfortunate provision for the "average" is just one of a number of provisions in the 2013 Guidelines - as discussed in the last several blogs in this series - whose lack of clarity and predictability may cause more problems than they solve.

*****************************************************

 In Part Eight, I will further analyze and explore effects of the 2013 Guidelines through the use of charts.

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: 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.

*****************************************************

 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?

 *****************************************************

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

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Unintended Consequences? (Part Four of Ten)

The 2009 Guidelines may well have been higher but better, as they appeared to "get the policy right," as I discussed in Part Three of this series. However, appearing to get the policy right should not be enough to satisfy us. The proof is in the pudding. The Guidelines should be examined and tested, in various scenarios, to make sure that the actual outputs comport with our view of a fair allocation of parental resources. We should not be satisfied just because the policy is “right,” if despite that, the numbers we get as outputs do not seem fair. Indeed, family law litigants will never let us ignore the results. Outputs deemed unfair are what lead to criticism that in turn results in reforms at the next guidelines review cycle. The latest changes of the 2013 Guidelines certainly reflect much expressed dissatisfaction with child support outcomes, that is, primarily with the historically high awards, in most categories, of the 2009 Guidelines. 

The record-high awards of the 2009 Guidelines themselves are not likely to have been unintended consequences, as there was dissent on the guidelines task force, even a written dissent in fact, pointing to the realization that these guidelines would produce higher, and arguably too high, awards.  The higher awards probably reflected two things, the first of which I am fairly certain, and the second less so, as it is based more on speculation and intuition: 1) the new shared-income model, in adding together income from both parents first, before deeming a portion of that shared income as child support, and then allocating according to relative income, naturally puts upward pressure on the total child support amount ultimately awarded, in absolute value terms, as joint incomes increase, and 2) the awards, in most categories, may have been allowed to go higher for the benefit of those on the task force who have traditionally favored relatively high awards, as a concession for, or in exchange for, the big shared-income and shared-parenting paradigm shifts about to be made.

Those paradigm shifts surely would have been favored by the new voice on the task force, lead by Ned Holstein, from the organization then called Fathers and Families, and now re-named the National Parents Organization, whose raison d'etre has been advocacy of their view of equal rights for fathers to parent their children and specifically for shared parenting policies and gender equity as they see them. On the other hand, in the dissent, Ned Holstein broadly criticizes the guidelines for, among other things, not having a proper rationale.  I cannot help but think, however, that he would have welcomed generally not only the new shared parenting formula but also the new shared income paradigm itself.

My strong suspicion is that the more traditional forces insisted on the relatively high awards in some implicit exchange for the big paradigm shift that paved the way for the new shared parenting provisions and the shared income model.   The task force members - an unusually large, and most diverse group, in contrast to prior task forces, and in contrast to the latest, smaller task force for 2013 as well - had to be aware that they were creating guidelines that would lead to higher awards for most categories of payors.  That is apparent from the fact that a Minority Report issued - by  Ned Holstein, with partial concurrence from two other individuals on the task force, including economist Mark Sarro, Ph.D. (whose comments appeared in the last part of this series) - which strongly protested what it deemed the "generally excessive" nature of the awards about to be instituted. (To see the conflict yourself, compare that minority report with the Task Force Report (Majority Report).

After the 2009 Guidelines issued, Fathers and Families went beyond Ned Holstein's mere words of dissent, and went to federal court, and then state court as well, in an unsuccessful effort to try to block use of the child support guidelines on that same basis.  Later in this series of blogs, I will more specifically discuss the politics of child support, ever present though often cloaked in niceties and banal platitudes about the "best interests of the children," that all-important and vague legal principle that is a buzzword easily tossed about by advocates of all stripes.

In any case, the relatively high, and arguably too high, awards that resulted from the 2009 Guidelines, were consequences well anticipated and understood, if not fully intended, by the task force, well before implementation of the 2009 Guidelines. But there were other consequences that more likely were neither foreseen nor intended, as in fact they appeared to operate at odds with the new shared-income rationale.  What am I talking about? Well, these high awards of the 2009 Guidelines - relative both to the guidelines of other states and to previous Massachusetts guidelines - relate to the fact that the new formula, though designed as a shared income model, actually in practice often functioned more like a percentage of income model. The 2009 Guidelines, according to financial planner James McCusker, in practice made child support more of a “fixed cost (as a percentage of income) rather than a variable cost.” In particular, upon comparing results under the 2005 and 2009 guidelines, McCusker found:

In all the calculations performed, the “new” guidelines produced child support amounts that approximated 25% of payor gross income. Under the “old” guidelines that percentage went down to approximately 14% when payor and recipient income reached parity.

It should come as no surprise, then, that the 2013 Guidelines, while continuing, and adding to, the new shared parenting provisions, also managed to reduce the child support awards, even by as much as 10 to 15 percent, for many categories of payors (link is to Justin Kelsey's article on the 2013 Guidelines in Family Mediation Quarterly).  Nevertheless, even after these significant reductions from the highs of the 2009 Guidelines, the Massachusetts Child Support Guidelines of 2013 remain quite high relative to other states, as detailed in a most recent, comprehensive comparison of the guidelines of all states in late 2013, by child support expert and economist Jane Venohr (article previously cited in Part One).  Her research as reported in that article reveals the remarkable fact that Massachusetts’ 2013 Guidelines still yield either the very highest or second highest awards, among all 50 states and the District of Columbia, in all three of the varied case scenarios she examined.

************************************************

In Part Five, I will begin to discuss that next, awkward step: the 2013 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Higher But Better? (Part Three of Ten)

The 2009 Guidelines brought many changes as part of the move to a shared income model, all consistent with the growing recognition that the needs, income, and contributions of both parents should be considered in determining appropriate levels of support. The 2009 Guidelines provided, for the first time, a cross-calculation to be used, both in cases of joint custody, where parenting time was “approximately equal,” and split custody, where parents had primary custody of different children. These cross-calculations, which “split the difference” between the putative amounts each parent would be obligated to pay for the other’s custodial parenting, had already been used informally by many judges and practitioners, as one of the more popular methods for determining child support in these situations in the years before the 2009 Guidelines. 

Beyond this explicit treatment of joint custody and split custody situations, the 2009 Guidelines did many other things to move away from the old tendency to unduly focus primarily on the needs of the recipient/custodial parent on the one hand, and to unduly focus primarily on the ability to pay of the payor/noncustodial parent, on the other. For example, the 2009 Guidelines eliminated the “income disregard” (of the first $20,000 of custodial income), which had always only applied to the custodial parent/recipient; this had been justified as the provision of an effective exemption from consideration of what was needed for basic living expenses (“a roof over the head”) for the custodial parent, but was hard to sustain in the face of criticism that the noncustodial parent also had basic needs, including a roof over his or her head as well. 

Other provisions of the 2009 Guidelines, as very thoroughly described by Gayle Stone-Turesky and Katherine Garren in their 2009 article, such as the “circuit breaker” and the new hypothetical guideline used to account for legal obligations to support additional children though done without a court order, all reflected a new, more comprehensive, big-picture, shared-parenting kind of thinking. The new approach was to treat child support as something that springs not from the child support payor or noncustodial parent alone, but from both parents, apportioned and transferred from one party to the other, through use of a shared income formula that first calculates a deemed total shared support amount based on shared financial responsibility. 

Many of us who have been early and consistent champions of shared income and shared parenting, both as models for determining child support and as models for thinking more broadly about parenting and support issues, saw these 2009 Guidelines as a substantial improvement. We saw them as better in many ways, perhaps even for those parents, most often the fathers, who were not the recipients but instead the payors of child support, and even though the 2009 Guidelines raised the obligations for these noncustodial parents, in most if not all categories of payors, to their highest levels ever. As Mark Sarro, economist and former member of the Child Support Task Force, said at the time: “child support amounts under the new guidelines are higher almost across the board (in all but the highest-income cases).” Yet he went on to say that the 2009 Guidelines were better even though higher, because they got the policy right: 

The most notable economic improvement is that the new guidelines symmetrically account for both parents’ financial and non-financial contributions to their children. The guidelines are entirely even-handed; the same rules now apply to both payors and recipients. For example, the ad-hoc income disregard is gone. All of the income definitions and cost deductions apply equally to payors and recipients. So do the amounts in Tables A and B, in proportion to each person’s share of combined income. Conditioning support amounts on the relative contributions of both households in the same way assures that each parent pays child costs in proportion to their relative ability to pay and under the same policy constraints.

 *****************************************************

 In Part Four, I will address some possible unintended consequences of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: The National Trend Toward Shared Income and Shared Parenting Models (Part Two of Ten)

Beginning with the 2009 overhaul, Massachusetts has been part of a national trend toward a shared income model as the favored child support guidelines model, and specifically away from models that focus primarily or solely on the obligor’s income. The first child support guidelines for the 50 states and the District of Columbia began about 25 years ago (ours was in 1987).

By 1990, there were already 31 states with shared income models, but also 15 states with percentage of obligor’s income shares models, known simply as percentage of income models, two jurisdictions with guidelines based primarily on percentage of income models, but with modifications and thus called hybrid models (Massachusetts and DC), and three states with Melson formula models.  For more detailed information about the guidelines models in use throughout the U.S., see economist and child support expert Jane Venohr's recent article in the Family Law Quarterly, Vol. 47, No. 3 (Fall 2013), "Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues" available here to ABA members.

By the end of 2013, both of the hybrid model jurisdictions, Massachusetts and DC, had moved to shared income models, and six states with straight percentage of income models had also moved to shared income models. Consequently, the new totals, as of the end of 2013, according to Venohr, are now as follows: 39 jurisdictions with shared income models, 9 with percentage of income models, and 3 with Melson formula models (hybrid models are gone altogether).

Massachusetts has also been part of the trend toward more recognition, and accounting for, “non-traditional” (to use the old language) cases of joint custody and split custody. Massachusetts is one of four states that in 1999 had no shared parenting formulas but now do, bringing the total of jurisdictions with shared parenting formulas from 30, in 1999, to 34 today, again according to Venohr.

Massachusetts, which adopted its first shared parenting formula, as well as its similar split custody formula, in the 2009 Guidelines, is one of the two states that adopted this new shared parenting formula as part of a simultaneous move to a shared income model for child support. Massachusetts thus provides a good illustration of both of these national trends, the one toward shared income as the favored child support guidelines model, and the other toward greater recognition and explicit treatment of shared parenting situations.

*****************************************************

In Part Three, I will discuss that giant leap of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: Introduction (Part One of Ten)

Recently I have been researching the Massachusetts Child Support Guidelines and their history since the first Massachusetts support guidelines of 1987, and have been comparing them with child support guidelines in other states. That is mainly because I have a journal article or two in the works and will be presenting a workshop "Shared Parenting and Child Support: Formulas, Incentives and Consequences" at the annual conference of the Association of Family and Conciliation Courts (AFCC) in Toronto, May 28-31. The theme of this year's conference is shared parenting, and my particular workshop, at the last session on the last day of the conference, is entitled "Shared Parenting and Child Support: Formulas, Incentives and Consequences." Here's the brochure's description:

The workshop will explore the range of child support models being used across the country, including income share models, percentage of income models, and Melson Formula models, and how they affect, and are affected by, decisions about shared parenting. The workshop will explore the relationship between child support guidelines and child custody determinations, and the often attendant challenges related to the inevitable incentives to increase or decrease either of the dependent variables of child support and child parenting time in order to influence the other.

Through my recent research, I have learned a lot about the Massachusetts Child Support Guidelines and how they compare to the guidelines of other states. I already knew quite a bit about the Massachusetts guidelines, of course, as I regularly use them in my practice as a Massachusetts family law attorney. But now I have a broader perspective, after having examined the guidelines and practices of other jurisdictions in some detail. Aided by that new perspective, I am beginning with this blog a ten-part series about the Massachusetts Child Support guidelines, their history, and particularly their recent evolution in response to the national trend in favor of shared income models for child support guidelines, and the national trend in development of specific provisions and policies to recognize and foster shared parenting. 

The latest Massachusetts Child Support Guidelines, effective August 1, 2013, continue a trend toward greater emphasis on shared income and shared parenting, begun with the last quadrennial child support guidelines revision of 2009, which was, in contrast to prior guidelines, the first “extensive overhaul” of the guidelines’ principles and formulas, following the mere “tinkering” of earlier guidelines revisions, as William and Chouteau Levine have put it. The early guidelines, from 1987 through 2005, only considered what was then called the “traditional” case, where there was a custodial parent and a noncustodial parent. 

Any shared parenting or split parenting situations, as they were not specifically addressed in the guidelines, were then commonly referred to as “outside the guidelines” and thus their treatment, for purposes of child support determinations, was left in the complete discretion of the court. The primary purpose of this ten-part series of blogs is to focus on our own recent history, particularly our evolving principles of shared income and shared parenting, and ultimately to critically examine the 2013 Guidelines as they represent the latest awkward step our Commonwealth has taken, after the first, giant leap of the 2009 Guidelines, to incorporate our evolving principles of shared income and shared parenting into our child support determinations.

********************************

In Part Two, I will discuss the evolution of our guidelines in relation to national trends.

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

Massachusetts Pets Now Included in Custody and Abuse Protection Orders

Over this past summer, the Massachusetts legislature passed a bill, which the Governor signed into law, that provides for the inclusion of pets in custody and abuse prevention orders.  See the recently issued Massachusetts Trial Court memo here.  I blogged about pets in restraining orders five years ago (No Longer Mere Chattel: The Rising Status of Pets in Family Law) when it was still a relatively new thing, and there were only a handful of states with such laws.  Since then, the total, not including the latest addition of Massachusetts, has risen to at least 22 other states, plus D.C. and Puerto Rico.

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

An October Surprise for Mitt out of Mass. Divorce Court?

Tomorrow morning there may be some interesting drama in one of Boston's family courts where I regularly practice, the Norfolk Probate and Family Court, involving sealed testimony by Mitt Romney, apparently given in support of his friend, former Staples CEO Tom Stemberg, during his divorce.   The ex-wife, represented by celebrity lawyer Gloria Allred, is reportedly here to tell the judge her client doesn't object to having the testimony unsealed.  

If this is just about Mitt's testimony that Tom Stemberg was a good father, we probably don't have much of a story.  On the other hand, if TMZ's reports are true that Mitt also falsely testified under oath that Staples was worth virtually nothing to aid his friend in misleading the court in order to reduce a payout to his exwife, then we may have a real story, an October surprise of sorts.

This may be the most excitement we have seen in the Norfolk Probate and Family Court since Bobby Brown's arrests here for contempt on child support arrears.   (I don't count the matter of the other Massachusetts Presidential candidate, John Kerry, who tried unsuccessfully, in 1995, to seal records here of his 1988 divorce to his first wife, as the facts of that case are rather boring.)

If TMZ's report about Mitt is accurate, and his testimony becomes unsealed, this could be significant news.  As we all know, from the most recent Clinton and Bush terms, a President's lying to Congress, the American people, and the United Nations about reasons for going to war is one thing.     But lying under oath before becoming President, in a deposition or trial, in a private civil case, such as a divorce or sex discrimination suit, is quite another.  It's absolutely unthinkable and disqualifies one from the very important job of lying about wars with absolute impunity and immunity.

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

Mommy Wars, Daddy Wars, and Having it All

From the time I heard Anne-Marie Slaughter's interview on NPR, back in late June, and found my Atlantic Magazine copy waiting for me in my office later the same day, there with the by now much-ballyhooed article, Why Women Still Can't Have It All, which she had just discussed with Terry Gross on air, I have been thinking quite a bit about the issues raised.

I thank her for her provocative contribution to the dialogue among the chattering classes on issues of gender roles, feminism, motherhood, and fatherhood.   I must say, however, that I reacted to her article much as I did to the seminal work of Betty Friedan upon my first encounter with it back in college: I appreciated its historical contribution, but its focus seemed too bourgeois for someone with my more radical sensibilities.

I have since enjoyed reading and learning from many of the varied reactions to that Atlantic Magazine article.  Two of my favorites, which I will pass on without comment, are The Daddy Wars, by Jessica Valenti, and Why Can't All Parents Have More, by KJ Dell'Antonia.

Boston Globe Calls for Task Force to Study Child Custody Reform

I couldn't agree more with this suggestion from the Boston Globe that the governor or legislature convene a task force to explore child custody reform proposals. It's way past time for a serious consideration of reforms in our custody law to level the playing field for fathers, who have been treated unfairly for so many years, and whose children have suffered as a consequence.

The recently enacted alimony reform was a very real victory for gender equality in Massachusetts.  This victory has more than a few of us dads (and others who care about dads and their children) thinking about the possibility that we might finally reform our child custody laws as well.   As with alimony reform - which I supported long before it became popular - I have also gone on record, long ago here, in favor of a shared child custody presumption (see my first, second, and third posts on this issue from 2008).  I am not going to get too excited too soon, but I am very encouraged by the sight of this opinion piece in the Boston Globe.  Who knows? Maybe equality is contagious.

We have lived far too long with the "best interests of the child" standard not to finally implement laws and procedures that will fully give life to that standard as the true test, not just in theory but in practice.  While the "best interests of the child" has long been the legal standard - on paper - in practice that standard has proved vague enough to be undermined far too often by traditional, patriarchal and/or downright anti-male attitudes that earlier accompanied the now-extinct "tender years doctrine" and which attitudes have stubbornly persisted.

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

Divorce Books for Little Kids

Many will soon be giving or receiving holiday gift cards for a certain megabook chain or amazon.com.  So maybe now's a good time for some recommendations of books about divorce.  I just created two listamania lists on amazon.com.  One of them is a list of my recommended books for small children about divorce, and the other one is for a couple of books I recommend avoiding.   Below you will find the substance of both lists and my comments.  Happy Holidays!

These are good books for divorcing parents or other caregivers with children of preschool age. Read them first to see if they make sense for you and your own child.

1.  Standing on My Own Two Feet: A Child's Affirmation of Love in the Midst of Divorce by Tamara Schmitz

2.  Dinosaurs Divorce by Marc Brown The list author says: "This book should stimulate discussion of more serious issues that may come up with slightly older children.  Use what you need, and ignore what you don't. You might choose to skip the part with mommy dinosaur drinking a martini with wine and liquor bottles, and a spilled pill bottle, behind her."

3.  Two Homes by Claire Masurel

4.  Mom's House, Dad's House for Kids: Feeling at Home in One Home or Two by Isolina Ricci

5.  Was It the Chocolate Pudding?: A Story For Little Kids About Divorce by Sandra Levins

6.  When I Miss You (The Way I Feel Books) by Cornelia Maude Spelman

OK, now here are a few books to avoid:

1.  If Daddy Only Knew Me by Lila Sprague McGinnis

2.  Mom and Dad Don't Live Together Anymore by Kathy Stinson

Kobe Bryant Headed for Divorce

There's bound to be a bit of schadenfreude here in New England, as we Boston Celtics fans absorb the news of the impending divorce of our nemesis Kobe Bryant out in LA. But any divorce like this one - which involves two small children, ages five and eight - should be no cause for celebration.

On the bright side, it appears that this will be handled quickly and without painful public drama.  According to both TMZ and the LA Times, Kobe's wife Vanessa signed her petition on December 1, Kobe penned his response on December 7, papers were filed with the court on December 16, and the couple has already issued a joint statement late yesterday that they have come to an agreement privately through counsel and will have their divorce judgment entered next year.

According to TMZ, Kobe has already vacated their huge Newport Coast mansion, which wife Vanessa is to keep in their deal. It is clear from the filings, as released by TMZ, that Vanessa has claimed some jewelry as her separate property (including, presumably, the multi-million dollar ring Kobe gave her after his infidelity with the Colorado woman who accused him of rape back in 2003), that they did not have a prenuptial agreement, that she is seeking spousal support, and that both have requested joint physical and legal custody of their two girls.

Even though California has tightened up its rules for prenuptial agreements (following the Barry Bonds divorce, which was thought to have been unfair to his Swedish wife), it is possible in California to waive the right to share in community property and to limit the right to spousal support in a prenuptial agreement.   But Kobe Bryant, by failing to insist upon a prenuptial agreement at the time he and Vanessa married - over ten years ago, while they were very young, at the very beginning of what would become a very successful NBA career - will thus end up sharing a lot more, in both assets and in ongoing support obligations, of his earnings with Vanessa than he would likely have been required to do.

That is because the overwhelming bulk of their assets was accumulated during the past ten years of their marriage and Kobe's tenure with the NBA.  Consequently, they will likely be splitting their assets in half as it will all be "community property" - except for the jewelry she can claim as separate property because it was a gift to her.  That could mean she would walk away with slightly more than he does (on account of these expensive gifts she listed as separate property), and then continue to collect child support and alimony which will be tied to his continued high earnings.

But given estimates of their net worth in the $200-300 million range, and many more millions to come - through Kobe's expected NBA salary of $25 million plus endorsements for the next several years - the Bryants do not need our financial sympathy.

Let's just hope the girls will be okay with their parents living in separate lavish homes. And of course, go Celtics!

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

Father Absence Affects Sons More than Daughters?

A new working paper  recently discussed in the Freakonomics blog, and which looks at the relationship between the absence of fathers from the home and juvenile delinquency, suggests that the presence of fathers, while beneficial for both sons and daughters, may be much more beneficial for sons than daughters.  The working paper finds, among other things, that "adolescent boys engage in more delinquent behavior if there is no father figure in their lives.  However, adolescent girls' behavior is largely independent of the presence (or absence) of their fathers."  

Of course, we should always view claims of findings from such social "science" reports with a healthy dose of skepticism.  A commenter on the Freakonomics blog named Todd makes the good point that this new study may be missing some important factors, especially as previous biological evidence shows father absence early in life may affect daughters by dramatically altering the age at which they get their first period. I would add that longitudinal studies in the United States and New Zealand have previously shown that father absence is strongly correlated with a higher risk for daughters of early sexual activity and teenage pregnancy.

However differently father absence may affect daughters versus sons, what is clear is that father presence has positive effects and father absence has negative effects - that is the common denominator of all studies to date, including this latest one.  And while that may seem self-evident to most of us, it is not uniformly understood or believed due to the sad pervasiveness of men bashing in certain circles.

Father absence and its effects on children - both sons and daughters - should concern us all, as we have gone from a nation, here in the US, with 8 percent of children living in mother-only homes in 1960 to one with fully 23 percent living in such homes in 2010, according to the US Census bureau.  I hope more such studies will be done, and that more of us will pay attention to them and the issues they raise.

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

Testosterone and Fatherhood

A scientific study done in the Philippines suggests that men who become fathers have hormonal changes that may help them to adapt to their new role - i.e., they have a drop in testosterone upon becoming fathers.   That should come as good news to those of us who already know that men can and do make excellent, nurturing parents, and who envision a world of increasing gender equity, both at work and at home.

Gender stereotypes and prejudices, backed by faulty biological assumptions, have inevitably resulted from thousands of years of history in a predominantly patriarchal culture (with fathers in the bread-winning role and mothers in the primary parenting role), and they continue to stand in the way of men in search of parenting equity at home, even as women have made tremendous strides in the workplace over the past fifty years.   This scientific study provides hope to the optimist in me that parenting equity and equality in the home will eventually catch up to, and parallel, the rapidly advancing workplace equality women have achieved, and are continuing to achieving, both in this country and throughout the developed world.

New York Times: In Study, Fatherhood Leads to Drop in Testosterone, excerpt:

          This is probably not the news most fathers want to hear.

Testosterone, that most male of hormones, takes a dive after a man becomes a parent. And the more he gets involved in caring for his children — changing diapers, jiggling the boy or girl on his knee, reading “Goodnight Moon” for the umpteenth time — the lower his testosterone drops. 

So says the first large study measuring testosterone in men when they were single and childless and several years after they had children. Experts say the research has implications for understanding the biology of fatherhood, hormone roles in men and even health issues like prostate cancer. 

“The real take-home message,” said Peter Ellison, a professor of human evolutionary biology at Harvard who was not involved in the study, is that “male parental care is important. It’s important enough that it’s actually shaped the physiology of men.” 

“Unfortunately,” Dr. Ellison added, “I think American males have been brainwashed” to believe lower testosterone means that “maybe you’re a wimp, that it’s because you’re not really a man. 

“My hope would be that this kind of research has an impact on the American male. It would make them realize that we’re meant to be active fathers and participate in the care of our offspring.” 

The study, experts say, suggests that men’s bodies evolved hormonal systems that helped them commit to their families once children were born. It also suggests that men’s behavior can affect hormonal signals their bodies send, not just that hormones influence behavior. And, experts say, it underscores that mothers were meant to have child care help.

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

Divorce: Hair Loss, Weight Gain, Binge Drinking

We hardly need any more reasons to convince us that divorce is to be avoided if possible.  But some recent studies indicate that following divorce women are more likely to lose hair (hat tip to Family Lore) and men are more likely to gain weight.   What about the kids, you ask?  Well, after their parents split, kids are more likely to become binge drinkers by the time they reach 16.

Could be worse, I guess.  It could have been found that after divorce, women are more likely to gain weight and men are more likely to lose hair.  After all, we know women really hate to gain weight, and men really hate to lose their hair.  But you know, since men as they age are much more likely to lose hair than women anyway, and as women are more likely to have already gained weight during the marriage, there's not really any good news here for those of us who get married and divorced.

I do promise, however, to report any good news when I see it.

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

Judicial Guidelines Updated for Abuse Prevention Orders

The Massachusetts trial court system has issued the fourth edition of Guidelines for Judicial Practice: Abuse Prevention Proceedings.   The updated guidelines reflect a number of substantive and procedural changes, and reflect changes in statutory and case law since the guidelines were last revised in 2000. Hat tip to  Massachusetts Law Updates.

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

Census Bureau Reports Marriage & Divorce Statistics

The U.S. Census Bureau recently released its report "Marital Events of Americans: 2009," which is the bureau's first such report after including questions about marital events as part of its American Community Survey (ACS), beginning in 2008. The report confirms previous indications from other sources that divorce rates, and marriage rates, are higher in the South than in the Northeast, among other things.  See the bureau's report here or read the summary from Reuters.



From the Reuters news article (August 25, 2011):

....Statistics from "Marital Events of Americans: 2009," show that in the South, per 1,000 men or women, divorce rates were 10.2 and 11.1 percent.

By contrast, Northeastern men and women had divorce rates at 7.2 and 7.5 percent.The national divorce rate was almost 10 percent, at 9.2 for men and 9.7 for women.

The report is the first to examine and detail marriage, divorce and widowhood among Americans ages 15 and older, using data from the 2009 American Community Survey (ACS).

"Divorce rates tend to be higher in the South because marriage rates are also higher in the South," Diana Elliott, a family demographer at the Census Bureau, stated in the report's release.

"In contrast, in the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces."

Fourteen states had above-average divorce rates for men and women. Southern states such as Alabama, Arkansas, Georgia, Kentucky, Mississippi, Oklahoma, Tennessee and Texas had divorce rates above the United States average for both genders.

For the 10 or so states that had below-average divorce rates for each gender, about half were in the Northeast.

States like Massachusetts, Pennsylvania, New Jersey and New York saw fewer divorces than average for men and women.

Divorces did impact the economic well-being of families.

Three quarters of children living with a parent who divorced in 2009 lived in a household headed by their mother.

Of women who divorced in the year studied, 23 percent received public assistance, against 15 percent of recently divorced men who received such assistance.

But such women also reported less household income than recently divorced men, with 27 percent having less than $25,000 in annual household income compared to 17 percent of recently divorced males.

They also were more likely to be in poverty; 22 percent of recently divorced women compared to 11 percent of such men.

Almost 30 percent of children living with a parent who recently divorced lived in a household below the poverty level, compared with 19 percent for other children.

Historically, data on U.S. marriages and divorces were collected from marriage and divorce certificates filed at the state level. According to the report, beginning in 2008, questions about marital events were added to the ACS to fill a void in the data collected in the United States.

Previous Post on Related Issues:

 BASEBALL BRINGS DOWN THE DIVORCE RATE?

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