Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 6:05B

Plaintiffs who are otherwise entitled to relief under c. 209A should be permitted to address the question of support for themselves and their minor child(ren) in the c. 209A hearing after notice.SeeGuideline 3:07 Conduct of Ex Parte Hearings; Guideline 4:03Ex Parte Support and Compensation Orders; and, Guideline 6:00 Initial Orders After Notice: General.General Laws c. 209A, § 3(e) provides that the court may order “the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both, when the defendant has a legal obligation to support such a person.” The court should tell plaintiffs who have an existing support order from the Probate and Family Court that they must go to that court for enforcement of the support order.

The Trial Court Child Support Guidelines should be applied in determining the presumptive amount of child support.G.L. c. 209A, § 3(e). To determine an appropriate amount of child support based upon the Trial Court Child Support Guidelines, the judge should consider proof of income and expenses from both parties. Judges sitting in District Court, Boston Municipal Court, and Superior Court can obtain this information by requiring the parties to complete the Plaintiff's Affidavit in Support of a Request for a Child Support Order and Defendant's Affidavit in Connection with Plaintiff's Request for a Child Support Order. Deviation from the presumptive amount of child support provided by the Guidelines may be appropriate in certain circumstances.See Trial Court Child Support Guidelines. Helpful resources in calculating the amount are a pdf fillable 2018 Child Support Guidelines Worksheet and a child support calculator tool. Alternatively, the judge can order an amount that the plaintiff requests if the defendant does not object to that amount.

General Laws c. 209A, § 3(e) provides that child support orders must conform to, and be enforced in compliance with, the provisions of G.L. c. 119A, § 12, which establishes that income withholding, commonly known as income assignment or wage garnishment, is the standard method for collecting child support. The Department of Revenue (DOR) Child Support Enforcement (CSE) Division, is the agency designated to provide income withholding services for child support, either alone, or in conjunction with, support for the plaintiff. However, DOR does not provide income withholding services for support for the plaintiff, unless the court has ordered support for minor children.

To order the defendant to pay child support by income withholding, judges should check the appropriate box on the Order, which orders the defendant to pay monthly or weekly payments of support to the child(ren) through the DOR. This also orders the defendant to send payments directly to DOR at P.O. Box 55144, Boston, Massachusetts, 02205, during the period of time (often several weeks) that DOR is setting up income withholding with the defendant's employer, if any. This type of order allows for child support to be collected with no contact between the parties. It should be noted, however, that this order will only be in effect while the abuse prevention order is in effect; a plaintiff seeking an order for beyond the length of the abuse prevention order must seek such an order in the Probate and Family Court.

General Laws c. 119A, § 12(c) allows a judge to “suspend” the income withholding and order child support to be paid directly to the plaintiff. Income withholding can be suspended if the parties agree in writing that the payment shall be made directly or if the judge finds good cause exists to order that the income withholding be suspended and makes written findings in support of suspension. “Such written findings shall include a determination by the court that immediate income withholding would not be in the best interests of the child and the reasons therefore and, in the case of a modification of a support order, shall include proof of timely payments made in compliance with the existing order.” G.L. c. 119A, § 12(c).  1 If payment is to be made directly to the plaintiff, the judge must reconcile this order with any no contact provision in the c. 209A order. For example, if the judge orders that the defendant have no contact with the plaintiff, and that support payments be mailed to the plaintiff, the order should state this as an exception to the no contact provision for the limited purpose of mailing of support payments.SeeGuideline 4:01 Content of Ex Parte Orders.

G.L. c. 119A, § 12(c) also provides that the judge must, prior to a hearing on suspension, inform the defendant that the income withholding, even if suspended, will go into effect if there are two weeks of arrearages or if either party requests the withholding order go into effect.

The protective purpose of c. 209A is frustrated if the relief that it provides is not made available. Immediate support for the plaintiff and for any minor child(ren) may be a necessary precondition to the plaintiff's ability to seek other relief, e.g., the plaintiff may not be able to live away from the defendant unless the plaintiff has enough money to feed the child(ren) or for a place to stay. Referring the plaintiff to the Probate and Family Court or to the Department of Revenue (DOR) to establish a child support order (a process that can take weeks or months) should not substitute for providing relief under c. 209A when the law and the facts warrant such relief.

If the resources referenced in this Guideline are, for some reason, unavailable, a judge can arrive at a reasonably estimated child support order by determining the parties' combined gross weekly income (if the parties do not have a weekly figure available, then the weekly income may be determined by dividing the monthly figure by 4.313). If possible, determine the percentage each parent contributes to the available gross weekly income. If the non-custodial parent provides health and dental care, subtract that amount from the available gross. If the custodial parent pays these costs, add the amount to the available gross. Using that figure, reference the Child Support Obligation Schedule, set forth in Table A of the 2018 Child Support Guidelines Worksheet, which provides a range for a child support order based on that amount.

If legal paternity has not been established, and there is a dispute regarding paternity of the minor child(ren), a judge cannot order c. 209A support. In most cases, legal paternity is established if the parties were married at the time a child was born, if the defendant's name is listed on the birth certificate, or if the defendant has otherwise been adjudicated the father. The District Court, Boston Municipal Court, and the Probate and Family Court can adjudicate paternity, but genetic marker testing to establish paternity is administered by DOR and is usually done in connection with an action in the Probate and Family Court.

The court may order support payments even if the plaintiff is currently receiving cash benefits through Transitional Aid to Families with Dependent Children (TAFDC).

Plaintiffs must fill out the necessary DOR forms for enforcement of the child support order. This can be done online at Mass.gov by searching “How to Apply for Child Support Services “or the court can provide the plaintiff with a paper copy of the application to be sent in by mail. While enforcing the c. 209A support order, DOR will typically pursue a child support order in the Probate and Family Court that will extend support until the minor children are emancipated. Thus, the DOR support process is one that may provide more long-term security for a plaintiff with one or more minor children, along with the immediate relief that a c. 209A support order can bring. Upon request, DOR will provide any court with copies of the DOR forms.

Violations of c. 209A support orders are punishable only by contempt actions and not as criminal violations of the c. 209A order.See Guideline 8:00 Criminal Prosecution of Violations of Abuse Prevention Orders; Venue; Guideline 8:02 Criminal Contempt; and, Guideline 8:02A Civil Contempt.