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This article is Chapter 3 of Where Do We Go From Here?, a self-help “know your rights” manual designed to provide community legal education to victims and survivors of intimate partner violence, shelter and other intimate partner violence service provider staff, and other non-lawyers who have questions about getting out of and staying out of abusive situations. "Where Do We Go From Here?" was produced by Western Massachusetts Legal Services
1. Are my child and I entitled to child support?All parents are responsible for financially supporting their children. If you have physical custody of your children and the father of the children does not live with you, you are entitled to seek child support, whether or not you are married to the father. (See Chapter 6 for more information on custody.) Child support includes expenses and needs of a child including:
In Massachusetts, child support is available to custodial parents who have children 18 and under. Parents with children over age 18 may be able to get child support when certain circumstances are present. For example:
2. How do I get the court to issue an order for child support?You cannot get child support unless you file some type of Complaint in court. This Complaint becomes your “underlying case.” You need to take the step of filing a case to get an order, just like you need to unlock the front door of a house to get into one of the inside rooms. You can't get into the inside room of a locked house without unlocking the front door and you can't get a child support order without filing an "underlying case." 3. What is an "underlying case?"There are several types of Complaints you can file under which you can get a child support order; that is why we call it an underlying case. You can get child support under any of these Complaints:
These forms are available in the Probate and Family Court in your area. You can also get child support under a 209A protective order in District Court; these courts should have forms available for you as well. However, do not be surprised if the clerk of the District Court tells you to go to Probate and Family Court. If the father of your children files a Complaint in Probate and Family Court, you can seek child support under his case too. You can file one of these Complaints (your underlying case) through an attorney, on your own, or you can apply for free child support services from the Department of Revenue (DOR - the same agency that collects child support for the Department of Transitional Assistance). Your local legal services office may also be able to help you, so it is worthwhile calling them. Refer to Chapters 9 and 12 for more information about how to file an underlying case in Probate Court and how to get an order for child support. 4. What if I am on Transitional Aid to Families with Dependent Children or TAFDC?Go back and read questions 9-11 in Chapter 2. These questions discuss what happens with child support and TAFDC. 5. I am afraid of the father of my children. Do I have to tell the Department of Transitional Assistance where the father of my children is if I want TAFDC? What is “good cause”?Not necessarily. If you are afraid that the father will hurt you or your children, tell your DTA worker. You do not have to provide information or cooperate with child support if you have one of the following good cause reasons:
Your DTA worker has the duty to explain to you what “good cause” is and the benefits of cooperation. Your worker must also help you get the proof needed if you need help. DTA also has "domestic violence specialists" available to assist you. You can ask that one of them be assigned to your case. You should be notified whether your good cause is accepted. DTA can decide to accept good cause and not contact the father at all; then DOR would not be allowed to go after the father for child support. DTA can also decide to accept good cause and decide it is safe to pursue the absent parent but not require you to help. Make sure you know what decision is made. If you are unhappy with the decision, you have the right to appeal. Call your local legal services program or battered women’s program. If DTA does not accept your good cause and you don't give the DTA information about the father of your children, they may send you a notice trying to reduce your benefits. If they try to reduce your benefits, you can challenge the action through an appeal. Again, tell your DTA worker all the reasons you are afraid of him. Remember that if your DTA worker is not being helpful, ask that one of the DTA “domestic violence specialists” be assigned to your case. 6. How does DOR help me if I am not on TAFDC?DOR provides child support collection services to all "custodial parents" (parents who have physical custody of their children) in the state of Massachusetts. Some people think DOR gives priority to getting child support orders for women on TAFDC. DOR tries to make sure that parents pay back the Commonwealth of Massachusetts for supporting children on TAFDC. When you apply for DOR services, you give them the ability to establish and collect child support on your behalf. To apply for DOR services, you get an application from your local Probate and Family Court, fill it out, and send it in. DOR does not charge a fee for this service. When filling in the application make sure you check “yes” if you want services and pick the service(s) you want them to provide. Here you should think about the services that you may require in the future as well as currently. If you only want DOR to provide the pass-through wage assignment service where the money is taken directly from the noncustodial parent’s pay check (See question 16 below) you should check “no” but still fill out the form and sign it. Because all wage assignments must go through DOR you do not have to request this service. You may have to wait for a long time before DOR gets to your case. You may consider establishing child support by yourself, or applying to a private child support collection agency. You should know that most private child support agencies will not establish a support order, but they will try to collect on existing orders. Private agencies usually keep a portion of the child support they collect as their fee. 7. Are there any risks involved if DOR collects child support?There may be. DOR’s establishing or collecting child support is something you should think about carefully if the father of your children was abusive toward you. If you are a victim of abuse, going after child support might put you and the children in danger. Filing the child support case could give your abusive former partner a chance to follow you home from the courthouse, or see you in the court room. Filing for child support might make your abusive former partner angry and increase your risk of being abused. If the abusive father of your children is made to pay child support, he might ask the court for custody or the right to start visiting with the children, or participating more in their lives. He has the right to ask for custody or visitation in court whether or not DOR goes after child support, but some fathers do not pursue these rights until they are taken to court for child support. A visitation order from the Court could increase your involvement with the father of your children, whether you like it or not. You should know that there are other things that you can do to try to stay protected if DOR does pursue child support. You can file a Motion to Impound your address so he cannot learn where you are living from these court papers. You should tell the DOR attorney right away and often if this is something you need to do. See Question 11 and Chapter 7 for more information about visitation. If you have already impounded your address, be sure to let DOR know before you go to court. In the end, you are the person who can best evaluate the risk to you and your children. 8. What if I am in court with DOR on a child support case and the father of the children asks that day for visits to be ordered for the next weekend?DOR is not supposed to help make agreements on visitation or custody. They are only supposed to deal with child support. If there are abuse issues, you should tell DOR as soon as they contact you and remind them when you go to court. If the father of your children did not serve you with any court papers telling you he wanted to bring up the issue of visits or custody, he should not be allowed to bring these issues up at the child support motion hearing. If the father is going to ask the court for visits or custody - which he now has a right to do - he has to send you a notice for another day in court. That means you get time to prepare an argument for another day in court explaining why visits are a bad idea. If for some reason issues other than child support do come up while you are in court for child support with DOR, you should explain to the judge that there are abuse issues involved in your case. Tell the judge that your abuser did not notify you that he would be bringing up these issues and that you would like to get legal advice. 9. Is there anything else I should know about DOR child support cases?Yes! If you and the father of your children are not married, a child support case may make a very important difference, especially if the father of your child has not been involved with your children. Technically, if you and the father of your children have not "established paternity," (see Chapter 9), he isn't the father in the eyes of the law and does not yet have rights or responsibilities regarding the children. If this is the case, neither you nor the Department of Transitional Assistance should be able to get an order for child support. And, he should not be able to insist on visiting with the children or ask for custody until he is found to be the father. Even if he has signed an Acknowledgment of Paternity, he still has to file in the Probate and Family Court for custody and visitation. Until he has orders from the court about custody and visitation, you are the only parent in the eyes of the law, the only one with the right to custody. As a practical matter, however, this is often overlooked. Also, if you have lived together as a family, or he has been actively involved in the child’s life, the fact that he has not been adjudicated the father will not be that big an obstacle for him to overcome. Any father has the right to go to court at any time and ask to be declared the father and ask for custody and/or visitation rights. But, some fathers do not get around to doing this until the Department of Revenue forces them into court on a child support case. If you are on TAFDC and the father did not sign an Acknowledgment of Paternity, DOR can file a case (called a "Paternity" case) to legally establish that your former partner is the father. Then DOR can attempt to get support from him. But making your former partner the father in the eyes of the law also makes it easier for him to ask in court to visit the children or seek custody. This may help him to get to you, or stay connected to you. (See Chapter 9 for more information on Paternity cases.) 10. How could DOR’s getting child support mean I stay connected to the father of my children? Could you give me an example?This is a true story. Lisa had a very violent, abusive boyfriend, Dan, who was sentenced to three years in jail for beating her, threatening to kill her, and violating a restraining order. Lisa had Dan's baby while Dan was in jail. Dan never met the baby. He was never declared the father. Since he wasn't legally the father, he had no right to visit the child, and did not have to pay child support. He seemed to have no interest in the child, and he left Lisa alone. Lisa applied for TAFDC. She did not know about the good cause waiver, and six months after Dan got out of jail, DOR filed a child support case. In order to get child support, DOR had to legally establish that Dan was the baby's father. In the court room, after the judge declared that Dan was the father and ordered support, Dan turned to Lisa and yelled, "I want visits now. I want to see my kid next Saturday." It is now easier for Dan to go to court and ask for visits because he has been legally found to be the baby's father. If he does ask for visits, and Lisa is concerned about the safety of the baby, Lisa can ask the court to order that Dan may only visit in a supervised visitation setting. But, the judge may also order the type of visitation Dan wants. Either way, Dan will have ongoing contact with Lisa through their child. While Dan always had the right to go to court and ask to be declared the father and ask for visits, he may never have pursued these rights if there had not been a case filed by DOR. And, Lisa could have avoided having a case filed by DOR if she had known about the "good cause waiver." It may be worth your while in the long run to get a child support order. All parents should pay child support. But if you really believe you are in danger, you might be better off without it. Contact a legal advocate to talk about your options and get good legal advice. Child support might not be worth compromising your health and safety, or the health and safety of your children. 11. Are there any other advantages to legally establishing that my abuser is the children's father?There are some possible advantages:
12. Where could I find a private child support collection agency?As of 2003, the only private child support collection agency the writers are aware of is: Child Support Collections of MA 95 Post Office Park Wilbraham, MA 01095 You could try looking in the yellow pages of the phone book, or asking local attorneys for additional collection agencies. 13. If legal services can't help me and DOR can't help me, how do I file for child support on my own?You can file for child support on your own by going down to your local Probate and Family Court. Although it is usually better to have a lawyer, filing for child support on your own should not be too difficult. (See Chapter 12.) Note: If you are filing for a 209A protective order, you can also request support under this application, even if you apply for a 209A in District Court. (See Chapter 5.) You really can just go to the courthouse and fill out the forms by yourself. Check with your local court to find out when the Lawyer for the Day may be available to assist you. (See Question 15). 14. I heard you have to pay over a hundred dollars to the court just to file a divorce or any other kind of case. I can't afford that, so what can I do?There is never a charge to file a Complaint for Paternity or a Complaint for Modification or a 209A protective order. And, any person in Massachusetts whose income is low enough doesn't have to pay to file a Complaint for Divorce or a Complaint for Separate Support. You must file an Affidavit of Indigency, a form which says you cannot afford to pay to file your case and/or to pay a sheriff to deliver papers in your case. You can get this form right at the court. Once the Affidavit of Indigency is approved by the Register, you will not have to pay for filing your Complaint and/or pay the sheriff to serve the papers. The court will waive the filing fee and the state will pay the sheriff. 15. If I want to try to do the case by myself, is anybody available for help and guidance?Many Probate and Family Courts have attorneys who volunteer to give free advice to low income people. You can call and check to see if your local Probate and Family Court does. (See the resource list at the end of this manual or check your local phone book.) These attorneys are usually called the "lawyer for the day," and they can help you to fill out court forms, and give you advice about how to get the case done. They will not go into the court room and speak for you, however. If you ever talk to a "lawyer for the day," be sure that she helps you fill out the Affidavit of Indigency. You can also call your local legal services office. Sometimes legal services offers free classes for do-it-yourself divorce. Legal services may also be able to represent you directly, or refer your case out to a free attorney, or help you to file it yourself. Many battered women's shelters, and some courthouses, have legal advocates who can help you get a 209A protective order with support orders in your local District Court or Probate and Family Court. 16. How much child support will I get?In Massachusetts we have the "child support guidelines." Under this law, there is a fixed formula for figuring out how much child support the father of your children has to pay each week. The least amount the court usually orders someone to pay is $80.00/month. In some few cases, the court may not order the father to pay support if his own income is severely limited. If the father of your children is not working, he can be ordered to report his job search efforts to the court. The amount of child support is figured using the Child Support Guidelines Worksheet. The Child Support Guidelines Worksheet can be difficult if you are not used to it. The sample chart below appears on the back of the child support guidelines worksheet, and shows roughly how much you will get if you earn $20,000 a year or less. You should get more than is on the chart if you have more than three children, or if any of the children are thirteen or older.
You should also know that although the child support guidelines usually apply, they create a presumption that the figure you come up with under the worksheet is what the father should be paying. Many things can cause the amount of support to change. For example, prior child support orders for other children, credits for health insurance and credits for child care can all make the figure change. The judge can consider these and other things and can adopt a different figure than the one you come up with under the guidelines. 17. If the judge orders support, how can I be sure the father of my children pays?Most child support orders are made payable by "wage assignment," also called “garnishing.” You should ask the court for a wage assignment – the judge or the clerk will fill out a form which is sent to the father's employer, or to the Unemployment Office if the father is on Unemployment. The child support order comes right out of the father's weekly check, just like taxes and other deductions, and is sent to DOR, who then forwards it to you. The same wage assignment order (Order for Support, Health Insurance, and Income Assignment) form can order the father's employer to put the children or you and the children on his health insurance plan. 18. The father of my children is always changing jobs, and half the time he works under the table, so a wage assignment won't help, even when I have a support order. What can I do?If you have a support order in place, and the father of your children refuses to pay or stops paying, you can file a Complaint for Contempt on your own to get the money that was ordered. If he knows about the order, has the ability to pay it, and is failing to pay, you can file a Complaint for Contempt in the same court where you got your original support order. There is no charge for filing this. If you are low income, you can file an Affidavit of Indigency to attempt to have the state pay the costs of a sheriff serving the father with this complaint and the “summons.” The summons orders the father of your children to appear in court on a certain date and explain why he hasn't been paying support. You must also appear in court on the date on the summons. When the father says he has no money and no job, you will have your chance to explain to the judge that you believe, for example, that the father is working under the table, or working for his relatives, or that he is driving a new car, or that you know he has a nice apartment and goes out partying three times a week, etc. Bring in witnesses who have seen that he has a good standard of living. Bring in photographs of his nice car. Bring in a record of his payments and the times that he missed paying you. The judge should again order him to pay support, and will usually set a date by which he has to pay. Sometimes judges will place the father of your children in a holding cell in the courthouse, or send him to jail until he pays, or longer. Many fathers who have previously insisted that they are not able to provide child support come up with some money at that point. If the father of your children does get sent to jail, you can ask the judge to release him during the day for work so he does not lose his job; this is called “work release.” If he has a history of unemployment or quitting his jobs you can ask the judge to order the father of your child to do a job search supervised by the Family Service Office of the Court. In these situations, the father of the child will be ordered to apply to a certain number of jobs a week until he has found a job and report them to the court every week. If the father of your child has a good history of employment or has work skills you can ask the court to order child support based on his past income or ability to work. This is called “attribution of income”. This simply means that the court assumes that he should be able to make the same income today that he has made in the past even if he is not currently working. If the father of your children doesn't pay support after that, you can go back to court again, and ask that he be brought in again. If he still doesn't pay, and you keep having him brought in, the judge may again put him in the holding cell in the courthouse, or send him to jail. If the father of your children fails to appear in court on the date of the contempt hearing, the judge will probably issue a “capias," which is like an arrest warrant. The county sheriff or a private constable is then supposed to go out and arrest the father of your children and bring him into court. This is not the same as a criminal arrest. The purpose of arresting the children's father on a capias is to make him come into court. If you are low income and have filed an Affidavit of Indigency, the court should pay the cost of having the sheriff arrest the father of your children. But, you should check with the court clerk to make sure you do not have to file a new Affidavit of Indigency to cover this additional cost. 19. What if I think my child support order is too low?Check the guidelines. Are you getting what the guidelines say you should get? If there is a significant difference, you might want to file a Complaint for Modification. If the income of your children’s father has increased (usually a 20% increase is called for), or if your eldest child has reached the age of thirteen, then the support payments might be increased. Also, if you were making $20,000 or more when the order went into place, and are now making less, the order could increase. When you file the modification case, you might want to try to file a Motion for Temporary Support. A motion is a request to the court to order something right away. You may wish to make a request for temporary support because it could take months for the modification case to be decided in a final way, just as it takes months for a divorce to be final. A motion can be decided a lot faster than the entire case. Or, if there is no argument about the facts which led you to conclude that your child support should be increased (like he just won $1,000,000 in the lottery, or his rock band finally “made it,” and there is no dispute that he is now making more money), you can file a Motion for Summary Judgment. This is a new procedure available in Probate and Family Court modification cases. Generally speaking, it allows you to get a final judgment in cases where there are no facts in dispute. If you think this motion fits your case, it would be good to talk to someone with legal training to discuss it further. When you file a Motion for Temporary Support, you need to pick a date for your motion to be heard and fill in that date on the motion form. (See Question 12 in Chapter 12 for information about how much notice you have to give.) You put that date on the motion form and have the sheriff serve the Complaint for Modification and the motion on the father of your children. Then the father has to come to court on the motion date if he wants to argue against increased temporary support. You must also go to court on the hearing date with your filled out financial statement, child support guidelines, your wage assignment form, and your proof of what the father is making. If the father of your children does not show up, and you have proof from the sheriff that he knew about the date, then you will probably win your motion. The judge will probably order increased support. If the father of your children shows up, you will be asked to meet with a Family Services Officer. This is to see if you can work out an agreement. If there is a 209A protective order in place, you should not be forced to sit in the same room with your abuser. The Family Service Officer can arrange for you to be in separate rooms but still help you try to reach an agreement. Do not feel that you have to agree to something that is unfair. It is your right to go before the judge. The judge will usually give you what the child support guidelines say, or close to it. If you decide to agree to less than the guidelines, you should be sure you have really thought it out. 20. How do I find out how much the father of my children is making?Once you have filed a case (modification, divorce, separate support, etc.) the father of your children has to provide you with a filled out pink Financial Statement within forty-five days of service, or within ten days of getting a request from you demanding it. (See the Appendix H the end of this Chapter for sample financial statement and sample requests.) If you have scheduled a motion to be heard before the forty five days expires, the father should send you a copy of his financial statement no later than two days before the motion hearing date. You should send the father of your children a letter and / or a request for a financial statement (outlining when he should respond, depending on your circumstances) and a blank financial statement. When he responds, you will know what he is making - as long as he tells the truth on the form. 21. Suppose the father of my children won't fill out the form?First of all, he is required under court rules to fill out a financial statement and send you a copy. He can get in trouble with the court for refusing to do so. If you have sent a request, or if forty-five days have passed since he was served with the summons and he still has not sent you a financial statement, you can file a Motion to Compel his financial statement. Also, there are two good ways to prove what the father makes. If you have several recent pay check stubs, you can bring them to your motion hearing and show the judge. If you don't have wage stubs, you can "subpoena his wage records." 22. What is a "subpoena?"Basically, a subpoena is a form that tells the person who gets it that he has to show up in court on a certain day to testify in a particular court case. If a person is given a subpoena and ignores it, an arrest warrant or "capias" can be issued. (See question 18.) If you have a court case, you can have a subpoena issued to make the payroll staff at the father's work come to court and testify about the father's income. If the payroll staff would prefer not to come to court, they can send "certified" records of his income directly to the court. 23. How do I subpoena records? I’m not a lawyer!It is so much easier than you think. All you need is a phone book, a pen, a friend and a few dollars. First, look up the father's work place in the phone book. Call them and get the address, and find out who is in charge of the payroll records (also called the “Keeper of the Records.”) Then, using the address and the name, fill out a subpoena form. Next, take your filled out subpoena to any notary public. There is usually a notary public at your local City Hall or bank. The notary should notarize the subpoena with her stamp for a few dollars. The subpoena is no good unless it is notarized. Next, make two photocopies of the notarized subpoena form and the attached affidavit of service, and then have a friend who is over eighteen (and who is not a witness for your case) take the copy of the subpoena to the father's work place. All your friend has to do is hand the subpoena to the receptionist of the company and tell the receptionist it is a subpoena for the father's wage records. Your friend then has to fill out all three copies of the affidavit of service (the statement saying she served the subpoena which is attached to the subpoena). (See the Appendix at the end of this Chapter for an example). One copy of the subpoena and the affidavit of service stays at the father's work place, one gets filed in the court file, and one is for you. You also have to give the person you subpoena a "witness fee." You can check at the court to find out what the witness fee is. You pay the gas mileage for the round trip from the place the father of the children works to the courthouse. It is okay to estimate distance. The friend who gives the subpoena form to the father's employer fills out the amount of the witness fee on the affidavit of service. Usually, you get your witness fee back anyway, because the father's employer will prefer sending "certified" records of the father's wages to traveling to court to testify. When your friend gets back from serving the subpoena, call the father's work place, talk to personnel or payroll and tell them that they do not actually need to go to court if they mail a "certified”copy of the wage records to the clerk of the court. (See Question 24.) Depending on where the father works, the “Keeper of the Records” might be willing to send the court a certified copy of the wage records without your having to do a subpoena. You can try talking to him or her first to see if they are willing to do so. In general, however, it is safer to send a subpoena, then the Keeper of the Records is required to respond to your request. 24. What's a "certified copy" of wage records? Will the company know how to certify the records?The company might not know how, but it's very easy, and you can tell them over the phone how to do it. Tell them that the Keeper of the Payroll records has to write the following words on the records, and sign and date it to certify them: I, ___(name)_____, Keeper of the Payroll Records at _(employer)________ hereby certify under pains and penalties of perjury that this is a true and complete record of the wages of (father’s name) . ______________________ ___________________ Date Signature The certified wage records should be sent to the court within a few days. 25. What happens if the parent who is supposed to pay lives in another state and I need to enforce or modify the Massachusetts order?In this situation you have two choices. First, you can file the complaint and try to serve the complaint on the obligor in the state where he lives and hope that he shows up for the hearing. However, if chances are slim that he will show up you should try contacting the interstate unit at the Department of Revenue to file a Uniform Interstate Family Support Act (UIFSA) petition. You will be required to fill out a long application including information about the other parent and your current order. Next, the Massachusetts DOR will send the petition to the DOR agency in the state where he lives and ask that they enforce or modify the order on behalf of you and the Commonwealth of Massachusetts. This process can take up to six months to complete but can be very effective. 26. What happens if you have a child support order from another state and have recently moved to Massachusetts and want it recognized in Massachusetts?You must make sure the child support order from the prior state is “certified” in Massachusetts. All you have to do is call the Massachusetts DOR and give them a copy of the order and request certification. DOR may have you fill out paperwork or request paperwork related to your child support records from the state where it was issued. Once the order is certified in Massachusetts, DOR can help you with wage assignment collection and other services. 27. What if the parent paying me child support also has other children? How does that affect my child support?If the father of your child has other children, it can affect how much child support you would get. Under the child support guidelines, the amount of support he is already paying for other children will be taken out of his gross weekly income before the court determines the amount of support for your child. Produced by an AmeriCorps Project of Western Massachusetts Legal Services Last updated October, 2009 Who to call for help
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