Temporary Custody and Support
When Massachusetts spouses file for divorce, either spouse can also file for temporary orders to govern the couple’s conduct until the divorce is final; these orders can include temporary custody and temporary child support. Before issuing temporary orders, the court will consider which custody arrangement is in the best interests of your child and what child support amount is proper based on the circumstances of your case. The court will look at the financial statements and completed child support worksheet provided by you and your spouse and any other evidence or arguments each of you give in support of your positions.
If you and your spouse can agree on a parenting plan, temporarily or permanently, the court will likely incorporate that plan into the court’s custody order. If you cannot agree, the court will make this decision for you based on what is in the best interests of the child. Typically, Massachusetts courts award physical custody, who the child lives with, to the child’s primary caretaker unless circumstances indicate another arrangement would be in the child’s best interests. The court may award joint or sole legal or physical custody, but is not likely to award joint physical custody when spouses don’t get along, since joint physical custody works best when both parents can amicably handle parenting together, even while divorced. Unless you and your spouse are committed to spending equal time with your children and provide equal support, the court may prefer to award something other than joint physical custody to the both of you. For example, the court might award joint legal custody, giving both parents the right to make important decisions for the child, and sole physical custody to one parent while providing the other with visitation rights.
Consequences for Nonpayment
When you fail to pay child support as ordered, your failure may indicate to the court that you aren’t committed to fulfilling your parental responsibilities. However, your spouse cannot refuse to let you exercise your visitation rights because you haven’t paid child support as ordered. Child support is not meant as payment for the right to access your child. However, you can be penalized for nonpayment. A judge can find you in contempt, meaning you violated a court order, and fine you or even put you in jail. Your spouse can also request to have the Massachusetts Department of Revenue deduct the child support from your paycheck and send it directly to her. Though nonpayment of child support is not specifically considered as a factor in the court’s custody decision, the court may view your nonpayment negatively; for example, as evidence that you do not value the court’s authority or your child’s needs.
Once the court enters a custody or support order upon divorce, it can only be modified when there has been a material and substantial change in circumstances, such as a significant increase or decrease in your income. You are required to pay the amount of child support established by the order until a new child support order is issued, even while your modification hearing is pending.