Recent SJC Case Will Aid Immigrant Children Between the Ages of 18 and 21 in Massachusetts

Since 2014, the United States has seen over 160,000 unaccompanied immigrant children reach its borders. (See Improving the Protection and Fair Treatment of Unaccompanied Children September 2016, available at: These children face multiple challenges and horrors that force them to flee their home countries. According to the legal representation organization Kids In Need of Defense (KIND), there is a particularly large flow of unaccompanied children from Central America. From gang and drug related violence, to sexual assault and rape, children from this region often make their way to the U.S. hoping to just find a place to feel safe. Countries such as El Salvador, Honduras, and Guatemala are among some of the most dangerous and violence-ridden countries in the world.

So, what happens to such a child once they reach our borders? Well, Congress enacted the Immigration and Nationality Act (INA) and included a provision that created a path for citizenship for immigrant children. The journey begins with obtaining Special Immigrant Juvenile Status (SIJS). To acquire SIJS, the child must first be found by a state juvenile court to be: (1) a dependent on the juvenile court; (2) her reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in her best interests to return to her country of origin. Once these findings are made, an application for SIJS may be submitted to the United States Citizenship and Immigration Services (USCIS) agency. An application for SIJS must be submitted before the child’s twenty-first (21) birthday.

It is at this juncture that some immigrant children face a huge issue in most states, including Massachusetts. Children seeking SIJS must first obtain an order from the Massachusetts Probate and Family Court. However, the Probate and Family Court usually only has jurisdiction over children under the age of eighteen (18), while the INA provides relief for children under the age of twenty-one (21).

What about children falling in between the ages of eighteen (18) and twenty-one (21)? Previously, these children would have to find another way of acquiring lawful admission into the U.S. or face deportation. However, in March 2016, the Supreme Judicial Court (SJC) provided an equitable remedy so that children falling within this age gap have a fair chance at citizenship. In the case Recinos v. Escobar, the SJC found that the Probate and Family Court does have broad equity powers that it may invoke when encountering an immigrant child between the ages of eighteen (18) and twenty-one (21). Recinos v. Escobar, 473 Mass. 734, 740. (2016). In other words, it gives the Probate and Family Court jurisdiction over children older than eighteen (18) but younger than twenty-one (21) for the purpose of making the required findings needed to apply for SIJS. This case now sets the precedent in Massachusetts that children who are in this this age gap can now attain SIJS. Given the large number of unaccompanied immigrant children still fleeing to the U.S., this important decision will now enable a previously over-looked group of children in Massachusetts the opportunity to feel secure and safe in the U.S.

DON’T QUIT YOUR DAY JOB: Imputed Income as it Applies to Voluntary Impoverishment

Often, the breakdown of a relationship that produced a child is accompanied by obligations to pay child support. Child support is a hotly debated point of contention, both in and out of court, and can lead to emotional and financial turmoil for both parties. Courts apply Child Support Guidelines to determine which parent is the obligor (paying parent) and which one is the non-obligor (receiving parent). In most cases, the obligor parent is the non-custodial parent. Pursuant to the Child Support Guidelines, the obligor is required to pay an amount commensurate with his or her income. Oftentimes, the obligor parent believes this amount is too high and, in some cases, believes that becoming underemployed or unemployed will reduce his or her child support obligation. This is commonly referred to as voluntary impoverishment. However, this is not recommended, as the courts have incorporated the practice of imputing income to payor parents who have been found to be voluntarily underemployed or unemployed for the purposes of avoiding child support obligations.

Courts do not recognize a presumption that a reduction in salary is a purposeful attempt to avoid paying child support obligations. Thus, the burden is on the non-obligor parent to prove that the obligor parent is voluntarily under- or unemployed. The court will not impute income to a parent who is involuntarily under- or unemployed because punishing people who have been laid off is in contravention to public policy. Additionally, a recent Massachusetts Appeals Court decision added another provision to the attribution of income when the court held that income cannot be imputed to an under- or unemployed obligor parent unless the court makes a factual finding that the spouse is not engaged in a reasonable job search.

However, a parent’s obligation to his or her children is a well-established bulwark of family law in every state. Income attribution is appropriate in cases where an obligor parent voluntarily reduces their salary by becoming under- or unemployed, notwithstanding their ability and capacity to earn a higher income through reasonable effort. In these cases, the trial judge will not use actual income but the earning capacity of the obligor parent to determine child support obligations. Judges calculate earning capacity using a totality of the circumstances calculation. Factors considered include previous work history and salary, education, training, age, current job market, and efforts to secure employment.  Wide discretion is given to the trial judges through statute and case law that permit them to make assumptions based on these factors and their decisions will only be vacated upon abuse of discretion.

What about an obligor spouse that is voluntarily impoverished because of a good faith reason, such as returning to school, retirement, staying home to raise small children, wanting a less stressful environment, or just plain happiness? Even in these cases, the decision to change positions or become unemployed is not left to the sole discretion of the obligor spouse. Instead, courts have consistently held that those reasons “must be balanced against his [or her] obligations to support his [or her] former family.” Courts will not punish children for the decisions of the obligor parent. The exception to this is when an obligor parent is suffering from a physical or mental disability making full-time work virtually impossible. In these cases, courts will not impute income.

Obligor parents who are trying to avoid paying child support should understand that taking action to become (and remain) voluntarily impoverished will put the obligor parent in a more precarious financial situation. Courts will not reduce their child support obligations. The result is a lower paying job or no job at all with the same child support obligations. If an obligor parent does not put the best interests of the child first, the courts will compel him or her to do so. The message from the courts is clear: the rights of the child are paramount.

The Massachusetts state laws governing child support are: M.G.L. ch. 19, 208, 209, 209c.


Charles P. Kindregan and Christina M. Knopf, Attributing Income in Massachusetts Domestic Relations Cases, Massachusetts Bar Association (Dec. 2012),

Child Support Guidelines, § IIH and G.L. c. 208 § 53(f).

Renee Lazar, Do Not Change Jobs to Lower Your Child Support in Massachusetts, Law Offices of Renee Lazar (Dec. 21, 2015),

Ulin v. Polansky, Mass App. Ct. 11-P-1450 (2013).

David W. Griffin, Earning Capacity and Imputing Income for Child Support Calculations: A Survey of Law and Outline of Practice Tips, 26 Journal of the American Academy of Matrimonial Lawyers 365 (2014),

Kristina Otterstrom, Child Support and Figuring Your Fair Share: Imputed Income,,

Annette T. Burns, What’s Necessary to Prove Imputed Income for a Spouse?, Annette T. Burns Attorney at Law (Feb. 11, 2011),