Child Support & Custody


There are two categories of custody concerning minor children: physical custody/physical placement and legal custody.  Physical custody or physical placement refers to the residence of a parent where a minor child resides on a day-to-day basis. Legal Custody refers to the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.  While it is possible to have joint physical and/or legal custody, for joint custody or shared responsibility to work, both parents must be able mutually to agree on the basic issues in child-rearing and want to cooperate in making decisions for their children.  For married couples in Massachusetts, upon the filing of a divorce or separate support action, there is a rebuttable presumption that both parents shall share temporary legal custody, however, no such presumption exists with respect to physical custody.  Rhode Island law does not provide for either presumption with respect to temporary physical and legal custody.

In both Massachusetts and Rhode Island, the best interests of the minor child is the touchstone inquiry in child custody matters and there are numerous factors to be considered by a judge in making a custody award. Under Massachusetts law, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.  Massachusetts courts have held that typically, it is in the best interests of the child to preserve the current placement with a parent, if it is a satisfactory one, and stability and continuity with the child's primary caregiver is itself an important factor in a child's successful upbringing.  Massachusetts courts have also ruled that although a younger child's preference as to custody is one of the many permissible factors to be considered, [it] 'is not given decisive weight, particularly so where "custody is hotly disputed."  In Rhode Island, a judge is bound to follow the so-called “Pettinato factors” when making a custody determination.  Those factors are as follows: (1)The wishes of the child’s parents; (2) The preference of the child, if the child is “of sufficient intelligence, understanding, and experience to express a preference”; (3) The child’s relationship with her parents, siblings, or anyone else who may impact the best interest of the child; (4) The child’s adjustment to her home, school, and community; (5) The physical and mental health of the child as well as the parents; (6) The stability of the child’s home environment; (7) The moral fitness of each of the child’s parents; and (8) The willingness of each parent to foster a meaningful relationship with the other parent.

If parents agree can agree on custody, the judge presiding over the case will generally go along with it unless it is not in the best interest of the child. 

In determining the amount of the child support obligation, the court shall apply the child support guidelines, with the rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. Massachusetts child support is typically calculated by using a Child Support Worksheet. The worksheet generates an appropriate Massachusetts child support obligation according to each spouse's income and other factors such as prior support orders being paid, medical and dental insurance premiums and daycare expenses. The court may deviate from the guidelines if the amount ordered would be unjust or inappropriate under the circumstances. Such a deviation must include the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. Support may continue for a child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.

Under Rhode Island law, support of a child is eligible to be terminated when a child turns 18 and graduates high school but in no event after the child turns 19. (If the child has a severe disability then child support could  continue indefinitely.) The RI Family Court has no jurisdiction to order any payments or support for a child beyond the designated termination set forth above. The RI Family Court cannot order payment of college undergraduate expenses, however, it will enforce a  property settlement agreement executed between the husband and wife addressing the payment of said expenses. 

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