Obtaining an order for child support when you are getting a restraining order can be a very important part of your plan for you and your children staying safe. If you decide that getting a child support as part of your restraining order can help you stay safe, the information in these pages may be helpful.
How can an order for child support when you are getting a restraining order help you be safe?
When you get a child support order when you get a restraining order, you may be getting child support when you need it the most. If, when you go for a restraining order you do not have enough money to provide for your children, child support may be critical for survival at that moment.
When you get a child support when you get a restraining order, you can have the support paid by the abuser or by the abuser's employer from his pay check to the Department of Revenue (DOR) and from the DOR to you. You do not need to have any contact with the abuser in order to receive child support and the abuser does not need to know where you are in order to pay child support.
Can a District Court order child support in a restraining order case?
Yes.
When you seek a restraining order in a District Court, you are entitled under the law to request a child support order as part of the restraining order. District Courts have the power to issue child support orders in restraining order cases. It is not true that another court, the Probate and Family Court, is always a more appropriate place to go for child support. Sometimes the Probate and Family Court is not the appropriate court to go to.
When is a District Court the more appropriate place to go for a child support order under Chapter 209A?
If you have come to a District Court to get a restraining order, and you need a child support order right away so that you and your children can become economically and physically safe, you have come to the appropriate court. Going to the Probate and Family Court may cause an unwanted delay in dealing with an important aspect of becoming safe, namely economic survival. The Probate and Family Court is the more appropriate court for dealing with long term solutions : divorce, final custody and visitation decisions, final final decisions such as alimony and child support. The Probate and Family Court is an appropriate place to go if you have decided that you are going to seek a permanent resolution of family problems. Probate and Family Court rules and procedures are much more complicated than District Court restraining order proceedings.
The basics
Chapter 209A is the the abuse prevention law in Massachusetts that gives courts the authority to issue orders protecting you from abuse by your intimate partner or other members of your household. The law defines “abuse” as:
- attempting to cause or causing physical harm;
- placing another in fear of imminent serious physical harm; or
- causing another to engage involuntarily in sexual relations by force, threat or duress
The law says that you may ask the Court for any of the following orders:
- an order requiring the defendant to refrain from abusing you
- an order requiring the defendant to refrain from contacting you
- an order requiring the defendant to leave and remain away from your household and your workplace
- an order awarding you temporary custody of a minor child
- an order requiring the defendant to pay temporary support for you, any child in your custody, or both, when the defendant has a legalobligation to support such person;
- an order requiring the defendant to pay you monetary compensation;
- an order for your address to be impounded (kept confidential and excluded from court documents available for public inspection)
- an order requiring the defendant to refrain from abusing or contacting your child, or children in your care or custody
- a recommendation that the defendant attend a recognized batterer’s treatment program.
The law specifically authorizes the District Court to enforce Chapter 209A. This means that while getting a restraining order in the District Court, all of the above remedies are available to you.
The first steps in obtaining child support with your restraining order
To get a restraining order, you must first fill out a two page form called the Complaint for Protection from Abuse (G.L. c. 209A). On the first page of the complaint, there are 10 numbered boxes, which tell the Court what it is you are asking for. If you need child support, be sure to check off Box #7. You may check any or all of these boxes, depending on what you want the Court to do for you. By checking off Box #7, you are asking the judge to grant you support.
The second page of the Complaint says "Issues Pertaining to Children" at the top. To ask for child support, check the box in section F. Temporary Support, near the bottom of the page.
When you seek a temporary restraining order, the first time you see a judge you will probably not get child support at that time. Instead, the Court will schedule what is called a "ten-day" or "extension" hearing. It is at this second hearing that the judge will hear the other side, and, in addition, you will be able to make your case not only for the restraining order, but for the other relief you are requesting, including child support.
At the extension hearing, you will have to show that you need child support and how much child support you should receive. You will want to bring evidence that you need support and evidence which gives information about the opposing party’s income and ability to pay. At the hearing, you will give this information to the judge so he or she has the information that is needed for a child support order.
How to show that you need child support and how to show how much you should receive
You will need to provide evidence of your income, the defendant's income, and expenses for child care and health insurance.
Complete the Affidavit on the back of the 209A Complaint form.
An affidavit is your signed statement, sworn under oath, explaining your situation. In c. 209A restraining order cases, the Affidavit form is on the back of the complaint. Be accurate and detailed. Include sworn statements about the defendant's employment and income, as in the sample Affidavit in Support of Request for Child Support Order. Here is a form affidavit you can use to put down the information that a judge needs to make a child support order. If you use this form affidavit for child support, you also complete the affidavit on the back of the complaint, which has your statements about the abuse.
Fill out a Child Support Guidelines Worksheet
Judges are required to use the Child Support Guidelines to decide the amount of a child support order. A Child Support Guidelines Worksheet is the form that judges use figure out how much support to award under the Child Support Guidelines. If the child lives with you, you are the custodial parent. The other parent, and the parent you want child support from, is the non-custodial parent. You can use the Table of Child Support Orders to fill in the proper amount of the "Basic Order" on line (A) in section 1.
How to prove the defendant's income
Bring to court any and all information you have about the opposing party’s income and ability to pay child support. Here are some things that you can do to get this information.
- subpoena the defendant’s pay records
A subpoena is an official notice that requires a person to come to court, usually with documents. In this case, you would subpoena the defendant’s employer, requiring him or her to bring the defendant’s pay records to court. You will need the help of a deputy sheriff to issue and serve a subpoena. Also, be aware that you do not really need the employer in Court. You just need the pay records. You may include a letter with the subpoena that lets the employer know this.
- subpoena the defendant to bring copies of his income tax returns, or bring your copies of your returns if you filed them together
- subpoena defendant’s bank statements, and/or bring records of any accounts the two of you share
- subpoena the defendant to bring his pay stubs, or bring copies if you have them
- subpoena the defendant to bring his stock, bond, or other securities statements, or bring any copies you have
- subpoena or bring copies of loan or mortgage applications made by the defendant
- subpoena or bring copies of other financial statements of the defendant
- subpoena or bring information on defendant’s health insurance
- complete an affidavit
An affidavit, a sworn statement, detailing your knowledge of the defendant’s work history and prior earnings may convince the judge if you have no other evidence.
What if the judge thinks an order for child support is inappropriate in a restraining order case in District Court - what can you say?
After you present your evidence, the District Court judge might still think that issuing a child support order is inappropriate, perhaps believing that child support is a matter best left to Probate and Family Court. To try to prevent this from happening to you, consider raising the following points, as they apply to you:
- Under chapter 209A, section 3 (e), the District Court has the power to award temporary support in accordance with the Child Support Guidelines.
- According to Trial Court Guidelines for Abuse Prevention Proceedings, 2:07, plaintiffs seeking relief in District, Municipal, or Superior Court should not be referred to the Probate and Family Court for any relief that is within the initial court’s jurisdiction, regardless of marital status or the involvement of children.
- If you are not married to the abuser, there may not be a reason to file anything in Probate and Family Court.
- If you are married to the abuser, a divorce might not be in your immediate plans. The judge may ask you to explain why you are not ready for divorce. Be prepared to answer that question.
- You and your children would be safer if the support were awarded now, and you did not have to see the defendant again. Explain that you do not feel safe having to face your abuser on another day in a different Court. This is a time of crisis, and you need temporary orders now that you have time to think and decide which next step is best for you.
- It takes a long time to file and be heard in Probate and Family Court, and you need the support now.
- To file for divorce or support in Probate and Family Court, it costs a lot of money, which you do not have.
- The nearest Probate and Family Court may be inaccessible to you.
- To file for support in the Probate and Family Court you will need to take time off from work, which you cannot afford to do and still provide for yourself and your children.
What to do if you want the Department of Revenue to collect the child support for you.
If you want the Department of Revenue (DOR) to collect the child support from the defendant's employer and send it to you, ask the judge to write the child support parts of the restraining order so that they look like this sample in sections A.9. and C. and also to fill out and sign an Order for Support, Health Insurance, and Income Assignment, like this. Also, you should fill out an Application for DOR Child Support Enforcement Services. Before you leave the court, be sure that you have arranged to send each of these three things to the DOR at Massachusetts Department of Revenue, Child Support Enforcement Division, P.O Box 7057, Boston, MA 02204. Make copies of each document for your records.