Section 32: Married person abandoned by spouse; order prohibiting restraint of personal liberty of spouse; support, custody and maintenance orders; information provided to complainant; domestic violence record search; investigations; factors determining support amount
Section 32. If a spouse fails, without justifiable cause, to provide suitable support of the other spouse, or deserts the other spouse, or if a married person has justifiable cause for living apart from his spouse, whether or not the married person is actually living apart, the probate court may, upon the complaint of the married person, or if he is incompetent due to mental illness or mental retardation upon the complaint of the guardian or next friend, prohibit the spouse from imposing any restraint upon the personal liberty of the married person during such time as the court by its order may direct or until further order of the court thereon. Upon the complaint of any such party or guardian of a minor child made in accordance with the Massachusetts Rules of Civil Procedure the court may make further orders relative to the support of the married person and the care, custody and maintenance of minor children, may determine with which of the parents the children or any of them shall remain and may, from time to time, upon similar complaint revise and alter such judgment or make a new order or judgment as the circumstances of the parents or the benefit of the children may require.
Upon the filing of a complaint pursuant to this section to prohibit a spouse from imposing any restraint upon the complainant's personal liberty, a complainant shall be informed that proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be given information prepared by the appropriate district attorney's office that other criminal proceedings may be available and shall be instructed by such district attorney's office relative to the procedures required to initiate criminal proceedings including, but not limited to, the filing of a complaint for a violation of section forty-three of chapter two hundred and sixty-five. Whenever possible, a complainant shall be provided with such information in the complainant's native language.
When considering a complaint to prohibit a spouse from imposing any restraint upon the complainant's personal liberty under this section, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the defendant's most recent whereabouts shall be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Upon request by the court, the state police, local police or probation officers shall make an investigation in relation to any proceedings and report to the court. Every such report shall be in writing and shall become a part of the record of such proceedings.
In determining the amount of a support order, if any, to be made, the court shall consider, but is not limited to, the following factors, to the extent pertinent and raised by the parties: (a) the net income, assets, earning ability, and other obligations of the obligor; (b) the number and ages of the persons to be supported; (c) the expenses incurred by the obligor and the persons to be supported for the necessities of life, and the usual standard of living of the persons to be supported; (d) the assets and net earnings, including a deduction for the provision for childcare, of the persons to be supported; (e) the marriage or remarriage of any person being supported; (f) the responsibilities of the obligor for the maintenance or support of any other children of the obligor, even if a court order for such maintenance or support does not exist, or for any preexisting order for the maintenance or support of any other children from a previous marriage, or for any preexisting order for the maintenance or support of any other children born out of wedlock and that said obligor is fulfilling such responsibility; and (g) the capacity of any person being supported or having custody of supported children, except persons under eighteen years of age, to work or to make reasonable efforts to obtain employment, including the extent of employment opportunities in fields in which such person is suited for employment, the necessity for and availability to said person of job training programs, and the extent to which said person is needed during business hours by members of the family and the availability to said person of child care services and the extent to which such person needs to attend school to obtain skills necessary for employment.
If the court makes an order for maintenance or support on behalf of a spouse or child, the court shall require either parent to provide health care coverage for the child if such coverage is available at reasonable cost and accessible to the child. The court may require the obligor to pay an amount toward the obligee's cost of health care coverage or toward uninsured medical expenses on behalf of the child. If the court determines that an order for health care coverage is not in the best interest of the child or creates an undue hardship for either parent, the court shall enter written findings.
If the child is enrolled in MassHealth, an equivalent program in another state pursuant to 42 U.S.C. 1397aa et seq. or 42 U.S.C. 1396a et seq. or an equivalent program in another state that is substantially similar to the program established in chapter 118E, the court shall order the obligee to maintain such coverage as long as the child remains eligible; provided, however, that court may also order the obligor to enroll the child in private health insurance if: (i) private health insurance is available to the obligor at reasonable cost and accessible to the child; (ii) enrollment in the insurance is in the best interest of the child; and (iii) enrollment in the insurance will not create an undue hardship for the obligor or the obligee.
If the IV–D agency under chapter 119A is responsible for enforcing the order, the court shall order the parents to notify the IV–D agency of any changes in the availability and terms of health care coverage. For the purposes of this section: (i) health care coverage shall be deemed reasonable in cost if the cost to the party ordered to provide health care coverage does not exceed 5 per cent of the gross income of the party; (ii) health care coverage shall be deemed accessible to the child if covered services are available within 15 miles of the primary residence of the child; (iii) health care coverage includes private health insurance available through employment, union affiliation or otherwise, and public health coverage administered by the Title XIX agency; and (iv) private health insurance shall be deemed not available at reasonable cost to an obligor or obligee whose gross income does not exceed 150 per cent of the federal poverty guidelines for the family size or who receives MassHealth on behalf of the obligor, the obligee or the child.
No order shall leave a obligor with less money than is required to provide him minimum subsistence, including food, shelter, utilities, clothing and the reasonable expenses necessary to travel to or obtain employment.