Family
Law Quarterly
Vol. 33 No. 1 1999
1999 Child Support Symposium
Child Support at a Crossroads:
When the Real World Intrudes Upon Academics and Advocates
RONALD K. HENRY*
"The time has come for someone to speak in defense of ‘dead-beat
dads.’ Divorced or separated parents who do not pay support have been taking a
beating from everyone, including the President.
1 have seen some parents who refuse to pay child support even though they have plenty
of money to do so. . . . However, I have seen far more parents who are ordered to pay
child support who pay some support but not all they are ordered to pay. Many of these
parents are engaged in a financial struggle that they cannot win. These are the working
poor."
-Hon. Anne Kass. Presiding Family Judge,
Albuquerque, New Mexico, District Court [1]
*Ronald K Henry is a partner in the Washington, D.C. office of Kaye, Scholer, Fierman,
Hays & Handler, LLP.
I. Introduction
Because I am married (with children) and never divorced, I am often asked
why I chose child custody and child support policy as the focus of my work. The answer is
twofold. As a researcher, I see everywhere the consequences of family breakdown and,
particularly, of father absence. As a husband, I see my wife and her father struggling
even now, forty-five years after the divorce, to re-establish the normal father-daughter
relationship that I take for granted with my own three girls. For our country and our
children, we must do better.
The stereotype of the "deadbeat dad" is the wealthy surgeon who abandoned his
children in poverty to squire his new trophy wife around in a shiny red Porsche. If the
stereotype is true, we should be able to see it in the "Most Wanted" lists put
out by the various states. [2] For example, the first alphabetically on Indiana's list [3]
are the following:
Table 1
| Name |
Amount of Arrearage |
Occupation |
Status |
| |
|
|
|
| Crank, Donald Ray |
$34,465 |
Construction/Carpenter |
Found |
| Dampier, James Earl |
$43,083 |
Tool and Die Worker |
Found |
| Garner, Clifford E. |
$22,294 |
Construction |
Found |
| Hinton, Timothy Dion |
$49,882 |
Welder/Boilermaker |
Found |
| Hoover, Charles Walter |
$12,491 |
Construction/Watchman |
Found |
| Horn, James I. |
$31,435 |
Worked in a Sawmill |
Missing |
Where are the doctors, the lawyers, and the investment bankers? Every one of the
sixteen names on the Indiana list is an economically marginal blue-collar or occasional
worker. We can't know from the "Most Wanted" list alone whether these were good
people or bad people, but a few things are clean It is most unlikely that any of them was
ever able to afford significant assistance from a lawyer in establishing or modifying
their child support obligation. All have hopelessly high arrearages in relation to their
economic circumstances. The Indiana list is in no way anomalous. Other state lists are
similarly loaded with low-income obligors. [4]
What happens after one of these "Most Wanted" blue-collar workers is found?
Only on rare occasions does the bureaucracy report upon the limits of its success in
shaking such towering money trees, as these Virginia obligors report:
Frankie L. Adams: Mr. Adams is out of jail and making payments; however, he is
unemployed.
Robert Mountcastle Flannery: The judge ordered a wage withholding for $100 a month
on Mr. Flannery's SSA benefits. The first $100 payment was received in August.
Ferman LaMont Peyton: Mr. Peyton was located in Dublin, Virginia, after making
application to receive food stamps. [5]
Regardless of the form of coercion attempted, we are never going to pull large amounts
of money out of the unemployed, the disabled, and food stamp recipients. The question is
whether these are anomalous cases or part of a systemic problem of imposing unsustainable
burdens on child support obligors.
The available evidence indicates that there is a systemic problem in which existing
child support guidelines overburden obligors. For example, the State of Florida found that
traditional means of collection were unsuccessful and hired two private contractors,
Lockheed Martin IMS and Maximus, Inc., to pursue nearly 200,000 "deadbeats."
Lock-heed was assigned 101 ,325 cases of which it closed 37,270. Over fourteen months,
Lockheed was paid $2.2 million and "managed to collect $137,839 in child support
payments." Maximus was assigned 89,560 cases of which it closed 46,692. Maximus was
paid $2.25 million and "got 12 deadbeats to cough up $5,867."[6] According to
one news story: "What Maximus and Lockheed Martin learned in the process of tracking
down non-paying parents is that most who don't make child support payments are, in a word,
broke. You can't give what you don't have." [7]
Similarly, when the state of Maryland decided to get tough with "deadbeat
dads" by suspending 9,000 driver's licenses, only about 800 were able to make
sufficient progress on their arrearages to get their licenses restored. In modern America,
the ability to drive a car to work, to the grocery store, to just about anywhere, is an
indispensable part of simple survival. There were not many trophy wives or shiny red
Porsches among the 91 percent who were unable to make sufficient payments simply to regain
the freedom to drive.
Professional research into the status of' child support obligors is just now beginning
to receive funding. Elsewhere in this issue, Professor Sanford Braver reports on some of
his research. Similarly, the team of Laura Lein (University of Texas) and Katherine Edini
(Rutgers University) recently found:
Many of the absent fathers who state leaders want to track down and force to pay child
support are so destitute that their lives focus on finding the next job, next meal or next
night's shelter . . . . The initial findings are sobering, filled with descriptions of
life in the streets or cheap motels, rummaging for food as restaurants are closing and
seeking shelter, often a week or a day at a time.
. . .
What we are finding with the men is that in lots of different areas, there are
pressures, in terms of their housing, in terms of their job stability, in terms of trying
to be a father, in terms of education and health. There are problems in every domain. [9]
Evidence has been building over the past decade that the obligations imposed on
noncustodial parents are unsustainable but, for many of those years, little notice was
paid. For example, in 1991, the U.S. Department of Health and Human Services (HHS) touted
a program under which obligors were rounded up and told that they could either go to jail
or charge their arrearages on their credit cards. The description of the program made no
mention of the constitutionality of debtors' prison or the morality of driving people into
18 percent revolving credit card debt to pay obligations that supposedly had been
established on the basis of ability to pay. The description merely noted that the success
of the program in pilot studies was limited because "the majority of obligors-most of
them from non-AFDC families" -were already so poor that they "had neither charge
cards nor checking accounts." [10]
The most widely cited claims about child support noncompliance are those derived from
U.S. Bureau of the Census surveys. These figures purport to show that approximately 50 percent
of child support orders are paid in full, approximately 25 percent are paid in part, and
approximately 25 percent are unpaid. These figures are given as the principal
justification for the punitive child support measures undertaken by the federal and state
governments during the past decade. The problem is that the cited figures do not
accurately reflect the reality of child support compliance and utilized a methodology that
would receive no credence in any other setting.
The Census Bureau asked only the custodial mothers whether payment was received. It did
not compare those responses with noncustodial reports of how much was paid or with court
records of how much was owed. The Census Bureau also failed to quantify or correct the
under-reporting of the amount of child support actually received by surveyed welfare
recipients who feared a risk of benefit reduction or termination if they disclosed the
receipt of more than thc $50 disregard amount in child support cases In other contexts the
Department of Health and Human Services has admitted that welfare recipients typically
understate their income in federal surveys. [11] Finally, the survey lumped together as
"partial compliance" all situations where the delinquency was as little as the
late payment of a single installment and counted as "non-compliance" all cases
where the obligor was unemployed, disabled, imprisoned, or even dead-the ultimate
"deadbeats." In a 1992 study, the General Accounting Office reviewed the Census
Bureau data and reported that, when custodial mothers were asked tile reasons why they had
not received child support payments, 66 percent of the mothers themselves (in both
in-state and interstate cases) gave the reason as "father unable to pay." [12]
Whenever the exaggerations of the child support lobby are exposed, the ready response
is that critics must surely admit that at least some child support is not paid. True
enough, but this response invariably begs the question of why some child support
payments are not made. The enforcement of child support is already the most onerous form
of debt collection practiced in the United States. Tax returns are intercepted, credit
reporting services are notified, multi-billion dollar bureaucracies are fed, and obligors
are even jailed. If compliance is still inadequate despite the efforts of this massive
enforcement apparatus, society must begin looking at the question of why?
Senior officials of the Office of Child Support Enforcement (OCSE) of HHS acknowledge
that very little data exists on why child support payments are not made and that
even this small body of data is not publicized. [13] The United States spends over $3
billion annually on child support enforcement, yet the government has had no meaningful
understanding of how many nonpaying obligors unemployed, disabled, supporting second
families, or engaged in civil disobedience because they have been unable to see their
children.
The demonization of noncustodial parents is used to justify all manner of inhumane
treatment. Sylvia Folk, a noncustodial mother, testified before Congress that she was
incarcerated for seventy-two days for nonpayment. The judge candidly acknowledged his
awareness that she lacked the money to pay but vowed to, and did, hold her until the
ransom was paid by her church. [14] Ms. Folk's treatment is by no means uncommon. As
Family Court Judge L. Mendel Rivers, Jr., explained:
The problem is, chronic non-supporters do not have dependable jobs, nor tax refunds,
nor seizeable property. That's why they are chronic. . . . As cruel as it sounds, the one
remedy that almost always works is incarceration. We family court judges call it "the
magic fountain." . . . Of course, there is no magic. The money is paid by his mother,
or by the second wife, or by some other innocent who perhaps had to liquidate her life's
savings. [15]
The theory is that child support is set to meet the child's needs within the limits of
the obligor's ability to pay. When the difference between theory and reality is so great
that the required revenue can only be generated through medieval kidnappings for ransom,
in the style of Judge Rivers, the system must ultimately collapse of its own weight. This
is exactly what is happening.
Every year the federal and state governments spend more money on child support
enforcement only to report larger caseloads, backlogs, and arrearages. The collection
tactics practiced for child support debt are tolerated for no other form of debt in
American society, yet after every round of new coercions, we find that the problem has
only worsened. We have delayed the realization that child support obligations imposed on
low-income obligors are not sustainable but the truth cannot be suppressed forever.
Frontline enforcement workers who begin with zeal their crusade against deadbeats end up
reporting that:
I just couldn't stand what they were doing to people. I got a call from a
homeless shelter and was told that I had put a man and . . . his four
children out on the street because I had put an enforcement order. . . for
50% of his income. I was devastated. That was the beginning of the end for me,
because I think that was the first time I was in touch with the ramifications of what I
was doing." [16]
B. Child Support Guidelines: The Power to Tax Is the Power to Destroy
A common feature of state child support guidelines is their calculation
of a fixed amount to be transferred from the noncustodial parent to the custodial parent.
There is no current guideline, however, which looks at the true, after-tax economic impact
of the obligations imposed. Begin with a typical welfare case. The custodial mother is
receiving Temporary Assistance to Needy Families (TANF) assistance, food stamps, housing
allowance, and related benefits and the state now wants to recoup part of its investment
from the noncustodial father who has been providing informal assistance. Service of
process is left at the father's last known residence. [17] In court, the state is
represented by an attorney; the father has no counsel. The father has a full-time,
year-round job paying more than the minimum wage, earns $12,000, pays FICA and other
payroll taxes of $918, [18] federal and state income taxes of $l,025, [19] and child
support of $3,000 [20] for two children:
Gross Income $12,000
Payroll Taxes -$918
Federal and State Income Taxes -$1,025
Child Support -$3,000
Income Available for Living Expenses $7,057
After payment of all of the impositions withheld from his paycheck, the noncustodial
parent has $588 per month to pay all living expenses. It obviously cannot be done. Which
choice should the noncustodial parent make? Sleep in the park? Stop eating? Stop paying
for transportation to work? Or give up and drop out? Are deadbeats born or made by a
system that creates impossible burdens?
The problem is compounded when it is recalled that low-income and moderate-income
earners also have the most instability in their earnings. What happens when the
blue-collar worker suffers a reduction in hours or the taxicab driver has a significant
car repair? Even if the child support burden was sustainable under optimal circumstances,
it becomes unsustainable after the smallest disruption in earnings - an arrearage develops
and another deadbeat dad is made, not born.
The problem is not limited to the lowest economic tier. Assume a middle-class married
couple where the husband makes $40,000 and the wife earns $30,000. [21] If the wife sues
for divorce [22] and obtains custody of two children in Maryland, consider the following
[23]:
Table 2
| |
Custodial Parent |
Noncustodial Parent |
| Salary |
$30,000 |
$40,000 |
| Child Support |
$8,064 |
($8,064) |
| Pre-Tax Household Income |
$38,064 |
$31,936 |
| Payroll Taxes |
($2,295) |
($3,060) |
| State Income Taxes |
($1,055) |
($1,825) |
| Federal Income Taxes |
($1,519) |
($5,952) |
| Income After Child |
$33,195 |
$21,099 |
| Support Transfer and Taxes |
|
|
|
Despite earning $10,000 more than the supported spouse, the burdened spouse has $12,096
less after taxes and transfers, resulting in a net change of $22,096 although the nominal
child support obligation is stated as $8,064. The tax consequences of child support
transfers have never been seriously considered in the development of guidelines. [24] The
child support transfer is tax-free to the recipient but remains treated as taxable income
to the obligor. In the above example, the obligor must not only transfer income but must
also pay taxes as if the income remained in his own household. In addition to receiving
tax-free income, the custodial household taxes are reduced by head of household status,
child dependent exemptions, the Earned Income Credit, and the child tax credit. If the
custodial household had actually incurred any child care expenses, that household would
also receive the child care tax credit. None of these tax benefits are available to the
noncustodial household.
Using the Maryland guideline, the higher wage earner is reduced to a standard of living
substantially below that of the household he has been indentured to support. The situation
is actually even worse than it initially appears because the noncustodial parent does not
really constitute a one-member household. The noncustodial parent also must somehow find
resources to provide for the children while they are in his care. Even old-style standard
visitation orders place the children with the noncustodian between 20 percent and 25
percent of the time. Where is the noncustodian supposed to find money to feed, house,
entertain, and otherwise care for his children when we have already dragged him down to a
level insufficient to support a single person at the custodial household's level? Before
we criticize "runaway" fathers who see their children too little after divorce,
we need to examine the extent to which the economic burdens we have imposed upon those
fathers have made them driven-away or thrown-away. Are they deadbeats or dead broke?
In a study conducted for the Urban Institute, Laura Wheaton and Elaine Sorensen
calculated the effect of child support transfers and income tax effects for
families collectively described as the "working poor." Where mother and father
each work in the range between $9,000 and $18,000 per year, Wheaton and Sorensen
calculated that the non-custodial parent would have to earn between 50 percent more (one
child) and 100 percent more (two children) than the custodian to have an equal standard of
living on an after-child-support/after-tax basis. [25]
II. How Did We Get into this Mess?
Throughout most of our nation's history and in much of the world today, the law
contained a strong or conclusive presumption that sole custody would be awarded to the
father in the event of family dissolution. The early feminist meeting in Seneca Falls, New
York, in 1948, included the fact that fathers automatically received custody as a
principal complaint in its Declaration of Sentiments.
Historically, a parent's duty was to support the child in the parent's own home and to
keep the door open for the child to enter Transfer payments arose only in the highly
uncommon situation of a parent who had rejected his or her own children and thereby
created a burden for (he state or third parties. Child support transfer payments were thus
rare during the era of father custody and remained rare during the early years of the
mother custody era. As the pendulum of prejudice shifted to sole mother custody during a
time in which women generally did not work outside the home, the courts began to recognize
the consequences of ordering the placement of children in the least economically viable
fragment of the former family. The 1920s through 1940s then saw a large-scale
transformation in the fundamental structure of child support.
Under the new formulation, the parent who "lost" custody was both deprived of
the companionship of the child and ordered to pay the other parent for services that the
"loser" had historically provided with love and without charge in his or her own
home. This unique separation of the rights of custody and the duties of support became a
consequence of the "tender years" doctrine that is matched nowhere else in a
legal system that has prided itself upon its attention to the principle that the possessor
of rights should also bear the burdens and responsibilities associated with those rights.
It is this bifurcation of rights and responsibilities that is at the root of the civil
disobedience portion of the child support enforcement problem. Current policy makes the
simplistic assumption that all noncustodians are "runaway" parents when, in
fact, many noncustodians view themselves as "thrown-away" parents who are
victims of a court order that assumed children needed only "a custodian and a
check." [26]
What has been left out of the equation is our understanding of human nature and,
particularly, our understanding that parents support children because of their
relationships with those children. We do not have a problem with large numbers of parents
who refuse to provide for their children during an intact marriage, yet those same
responsible parents become "deadbeats" upon divorce. It is time to examine the
role of government policy in the post-divorce behavior of the noncustodial parents. When
we say to noncustodial parents that we care nothing about their relationships with their
children, that we will offer no protection against the custodial parent's interference
with that relationship, and that we will devote government resources only to extracting
financial payments, we should not be surprised by the result. Parents support children
when they are permitted to be parents; slaves run away.
The link between emotional relationship and financial relationship could not be more
plain. The Census Bureau has reported that:
- child support compliance was 90.2% in cases of joint custody;
- child support compliance was 79.1% where access to the child was protected by a
visitation order; and
- child support compliance was only 44.5% where neither joint custody nor access were
protected by an order. [27]
Like any other artificial bifurcation, the separation of emotional support from
financial support has created distortions. By deluding themselves into believing that only
financial support was relevant for policymakers, it became easy to meet all objections
with simple chants of "More is better" and "It's for the children."
The "more is better" movement was fueled by advocacy research, particularly
that of Lenore Weitzman whose 1985 book, The Divorce Revolution, claimed that,
after divorce, women's standard of living declined 73 percent while men's standard of
living increased 42 percent. Weitzman's figures were debunked even before her data had
been analyzed and were further debunked when the data was peer reviewed in 1996. [28]
While advocates copied tortmeister Melvin Belli's quest for "the adequate award
and the more adequate award," both the state and federal governments played a role in
advancing the "more is better" philosophy. Government was paying a huge amount
of money in welfare payments and wanted to get that money back from somebody. Never mind
that the government established the levels and conditions for welfare eligibility and,
until recently, actively discouraged work among welfare recipients. Never mind that the
government was making payments to one household and wanted to recoup its payments from a
second household without ever asking whether the second household was prepared to assume
custody and provide directly for the needs of the child. Never mind that the welfare
program had "man in the house" rules that drove economically marginal couples
apart. The government wanted its money back and saw child support enforcement as a profit
center.
The federal government further clogged the child support enforcement rolls with the
Bradley Amendment, 42 U.S.C. § 666(a)(9)(c), which provides that, once accrued,
child support arrearages cannot be modified. Originally intended as a response to
anecdotes that judges were forgiving arrearages too freely, the Bradley Amendment became a
classic example of the unintended consequences of federal overkill. If an obligor loses
his job, we want him to spend his time in employment offices looking for a new job. Under
the Bradley Amendment, he needs to spend his time in court seeking a modification because
any arrearage that accrues while he is unemployed is not modifiable. Since the unemployed
worker can't afford a lawyer, of course, his support order is not modified, the arrearage
accrues, and he ends up on a "Most Wanted" poster.
While the federal interest in spending child support enforcement dollars is the
recoupment of welfare dollars, the bureaucracy has never managed to break even on that
enterprise. As a result, there has been a movement to bureaucratize nonwelfare cases in
order to increase the throughput of the system even if there has never been a dispute or
arrearage among the parties. In fact, it now requires affirmative effort and a court order
to avoid automatic garnishment which does nothing but add error and delay to payments that
were not in dispute.
III. What Needs to Be Done
No one on any side of the issue would disagree that child support enforcement is an
ongoing disaster, characterized by huge caseloads, huge arrearages, and huge
administrative paralysis. Despite spending over $3 billion in federal funds alone each
year, child support enforcement is more chaotic and overwhelmed than ever. [29] Solving
the problems of child support enforcement requires attention to four distinct areas:
1. Administrative reforms on the state level;
2. Child support guideline reform;
3. Custody reform; and
4. Research to understand the lives of real people.
A. Administrative Reforms at the State Level
We know that new cases are coining into the system faster than we can handle them.
Rather than devoting all of our resources to the pathologies already in the pipeline, the
child support enforcement community must begin to look at mechanisms for reducing the
number of new cases that require servicing. Each unwed couple that marries is a child
support success story. Each married couple that avoids divorce is a child support success
story. Each shared parenting agreement that keeps both parents involved physically and
emotionally in the child's life is a child support success story.
Downward adjustment of an unfair order is enforcement; job training is enforcement;
mediation of access disputes is enforcement; encouraging family formation is enforcement;
marriage counseling is enforcement; reducing the need for income transfer and the sense of
estrangement after divorce through thoughtfully developed p1ans for shared parenting is
enforcement.
Child support advocates often lobby state legislatures and agencies, with arguments
that particular actions are required by federal law. While federal law does contain many
procedural, the principal sources of failure and paralysis within the enforcement
apparatus are not mandated by federal requirements. In the following paragraphs, I
describe a number of innovative programs, some already adopted by one or more states. [30]
1. PARENTAGE ESTABLISHMENT
Every state is struggling with paternity establishment in unwed birth cases.
In-hospital paternity establishment programs have had only limited success. The reasons
for these limitations, however, have more to do with the procedures than with the people.
The typical paternity establishment form instructs the father that signing the form will
create liability for child support, but that he will have to separately petition the court
if he wants visitation or custody of the child. In other words, the father is instructed
that signing the form will create burdens and no benefits. In one study, the evaluators
commiserated that only 43 percent of fathers signed such a form. In fact, 43
percent is an astonishingly high number for such an unbalanced procedure. No lawyer would
ever permit a client to sign a form which established burdens but required the client to
look elsewhere to establish reciprocal rights. The fact that 43 percent signed despite
this imbalance shows the motivation of these fathers to support and be involved with their
children.
The solution is to utilize in-hospital parentage establishment forms that address both
the establishment of custody and child support. While still in the hospital, the unwed
mother and father can establish parentage and develop their initial plans for both the
physical and financial needs of the child. Such a program has been developed and partially
implemented in the State of Vermont. By protecting the father's interest in access to the
child, the willingness to acknowledge paternity and accept the burdens of child support
has increased.
2. ADMINISTRATIVE SUPPORT MODIFICATIONS
Federal law requires that child support services be made available, without
discrimination, to both custodial and noncustodial parents. [31] All states have
procedures for initiating child support modifications. Many violate federal law because
they will only process upward modifications or requests made by custodial parents. Some
states contend that they have an attorney-client relationship with the custodial parent.
This is not correct. The child support bureaucracy represents the interest of the state
in ensuring fair support of the child and does not stand in the position of private
attorney to either parent. [32]
The failure or refusal to process requests for downward modifications both violates
federal law and creates uncollectable arrearages which adversely affect the state's
enforcement performance. Following federal law with respect to downward modifications will
improve compliance and reduce enforcement costs. The benefit of downward modifications in
reducing the accumulation of arrearages will also be helpful to states under the new
incentive formula that is currently being phased in.
3. TEMPORARY SUSPENSIONS OF SUPPORT OBLIGATIONS
A child support arrearage is unmodifiable even if it is utterly uncollectable because
of the obligor's poverty. Accordingly, states have an interest in identifying the
circumstances under which child support obligations should be suspended or modified prior
to the accrual of an arrearage. If an obligor becomes temporarily disabled or is laid off
from his job and has no income for a period, it does no good to pretend that an income
exists since any child support accrual will simply become another uncollectable arrearage
on the state's books. Just as intact families sometimes have to deal with interruptions in
income, child support enforcement needs to recognize when an obligor is unable to pay.
[33]
Many different solutions are possible. For example, a child support order could specify
that child support will cease to accrue upon the happening of certain events such as job
loss, disability, or incarceration. The simplest solution is to put a "stop
loss" into the order to ensure that obligations do not accrue beyond a sustainable
level while avoiding the need for micromanagement by the court as follows: "Mr. Jones
shall pay _____ dollars per week child support provided that child support shall not
exceed ___% of income."
If Mr. Jones stops earning the overtime that made the initial award level possible or
is temporarily disabled, the above language avoids the need for the parties to return to
court, avoids the accumulation of uncollectable arrearages, increases fairness, and
simplifies enforcement. [34]
4. TEMPORARY ASSISTANCE TO NEEDY FAMILY (TANF)
The 1996 welfare reform legislation created a revolution that is, as yet, only
partially understood. In addition to the well-known provisions for time-limited benefits
and work participation, the legislation specified that the block grants could be used to
support programs which advance any one or more of the four following purposes:
1. provide assistance to needy families;
2. promote job preparation, work and marriage;
3. prevent and reduce the incidence of out-of-wedlock pregnancies; and
4. encourage the formation and maintenance of two-parent families. [35]
This revolution cannot be overstated. In the past, the federal government made a
devil's bargain with our poorest citizens, offering benefits on the condition that the
recipients must neither work nor marry. We then claimed to be surprised when people took
us up on the deal. For low-income fathers, we had "man in the house" rules which
made those fathers worse than useless by ordering them to stay away upon pain of their
children's loss of benefits, resulting in family disruption and economic incentive for
separation of low-income parents.
The new law, recognizing the anti-family fallacy of prior policies, allows use of the
block grants for "promoting marriage" and to "encourage the formation and
maintenance of two-parent families." The consequences of the new law for child
support enforcement are profound. Instead of struggling to collect child support from
people who can barely manage to support two marginal households, we can now help those
people get together or stay together as a two-parent family. We can provide marriage
counseling, mediation, parenting training, conflict resolution assistance, and any other
service that will help them get together or stay together.
The problem with child support enforcement has been that new cases have been coming in
through the front door faster than we can process them through the building and out the
back door The TANF program allows us to address ourselves to reducing the number of cases
that come in through the front door. Every couple that gets together or stays together
avoids the need for a paternity establishment, avoids the need for a custody
determination, avoids the need for a support determination, and avoids the need for
support enforcement. Two-parent households are the best child support enforcement program
because all of the resources of both of the parents are present and focused on the
household where the children reside. We have long known that marriage is the best welfare
prevention program. We must now also act upon the knowledge that two-parent families are
the best child support enforcement program.
5. DEMILITARIZATION OF DIVORCE
Congress has long known that child support and visitation are "inextricably
intertwined." In addition to the problem of inability to pay, it is clear that lack
of access to the children also contributes to child support noncompliance. Many
noncustodial parents view their children as being held hostage and kept from them either
for financial gain or vengeance. While the law may not excuse the payment of child
support, we can understand the human realities and work to remove some of the cause for
nonpayment. The federal government, for example, has earmarked annual appropriations for
access enforcement efforts. This federal seed money is important, but states need to
commit resources of their own to services like Michigan's Friend of the Court system. This
system addresses all issues raised by custodial and noncustodial parents and works to
achieve nonjudicial resolutions of disputes. In many cases, one parent is withholding
access because support is unpaid and the other parent is withholding support because
access is denied. A Friend of the Court system can deal with and resolve these reciprocal
problems on a unified basis.
Other court services can reduce the need for child support enforcement. Divorce
education classes before the divorce can help parents to understand the impact of the
divorce upon their children and help them plan to avoid some of the worst consequences.
The use of parenting plans as a step toward the determination of custody helps parents
understand the magnitude of the task of rearing children and allocate the tasks reasonably
between themselves. Mediation and alternate dispute resolution can avoid the need for
judicial intervention.
6. CHILD DFPFNDENT TAX EXFMPTION
In the absence of a court order to the contrary, the child dependent tax exemption is
allocated to the custodial parent. Since the custodial parent most often has the lower
taxable income and the lower tax bracket, this is a wasteful allocation of the exemption
which unnecessarily increases the combined taxes of the family and reduces the overall
funds available for child support and other living expenses. Each state should have
legislation or a statewide judicial procedure specifying that the child dependent tax
exemption must be addressed in domestic relations orders and allocated to the parent who
provides more than 50 percent of the support.
Similarly, state law should provide that domestic relations orders will allocate the
child tax credit and the child care tax credit to the parent providing more than 50
percent of the support or child care expense.
7. EMPLOYMENT REPORTING
Each state is required by federal law to compel new-hire reporting by employers.
New-hire reporting, however, only tells half the story and leads to erroneous child
support collection databases. State law should require reporting of terminations of
employment as well, for at least two reasons: (I) Failure to report terminations results
in child support database information showing multiple employments and creates confusion
about available income which leads to erroneous administrative actions; and (2) reporting
of termination of employment provides important corroboration in cases where a downward
modification is sought by an obligor.
8. PRO SE PROCEDURES
The great bulk of all domestic relations litigants and virtually all low-income
litigants lack representation by counsel. Every court system should have pro se procedures
written in language that is understandable to the educational level of typical litigants.
To be effective, pro se procedures must be gender-neutral and avoid presumptions
about the outcomes that are available to litigants. For example, some older forms still in
use assume that the mother will be the custodian or assume that sole custody will be
utilized even though more recent legislation has created an option or even a presumption
of joint custody. HHS issued a manual entitled Developing Effective Procedures for Pro
Se Modification of Child Support Awards. [36] Although somewhat outdated and
written from the perspective of custodial parents seeking upward child support
modifications, the manual contains information that can be useful for pro se
custody issues and for noncustodial parent requests related to child support
modifications.
9. PROOF OF CUSTODY
Prior to the entry of a court order restricting custody, each parent is entitled to
unlimited, unrestricted access to the child and neither parent has a support obligation to
the other A few states, however, impose "temporary" child support orders prior
to a determination of "temporary" custody. This is a non sequitur. There
cannot logically be an order to support a custodial household until there has been a
determination of which household is the custodial household. State law or statewide
judicial procedure should provide that the first issue to be addressed and resolved in any
domestic relations proceeding involving children is the determination of temporary
custody.
B. Child Support Guideline Reform
1. THE PHILOSOPHY OF CHILD SUPPORT
Child support guidelines exhibit a schizophrenia that can only partially be explained
by competing political pressure. All states begin with a simple explanation that child
support payments should be a reflection of the child's actual needs within the obligor's
ability to pay. Child support policy first began to go awry when custodial parent
advocates pressed upon states the notion that the federal requirement for the creation of
numeric guidelines had, somehow, abrogated the actual needs/ability to pay standard. In
fact, federal law did no such thing. [37]
The legislatures of the individual states thus are free to retain the actual
needs/ability to pay test in developing their guidelines. While some advocates argue for a
"what-the-traffic-will-bear" standard for child support guidelines, there needs
to be something more principled than a Robin Hood philosophy in the setting of child
support guidelines.
The problem is particularly pronounced when dealing with high-income parents. For
example, a few years ago Jeffrey Nichols was the number one deadbeat with arrearages of
$500,000. Making $160,000 a year at the time of his divorce, he had been ordered to pay
$9,000 a month ($108,000 per year) in support. [38] He fled. When later apprehended, he
was re-sentenced to payments of $1000 per month plus 25 percent of all income over
$125,000 to be applied to the arrearages. [39] Ron Perelman, paying $125,000 per
month in alimony, plus $12,000 per month in child support for a four-year-old daughter, is
in court fighting Patricia fluffs attempt to get $100,000 per month in child support. [40]
Apart from the fact that family law is the last refuge of the academic Marxist ("from
each according to his ability, to each according to her need"), what exactly is the
governmental interest in requiring the creation of millionaire minors?
The government got into the child support enforcement business as a means of
controlling welfare costs and to assure that parents did not shift the burdens of their
children to society at large. We can see that the government has an interest in overriding
the wishes of parents when parents neglect or endanger their children. This is the
philosophy by which we sometimes order medical treatment for children despite their
parents' objections. The question is the level at which the government ceases to have a
legitimate claim to control private behavior. In the intact family, parents freely choose
the expenditure level that they will provide beyond the children's basic needs. Some
people can afford private schools, but do not choose to use them. Some people can afford
larger homes, but do not choose to buy them. The government recognizes that it has no role
in commanding expenditures beyond the child's needs.
Using the coercive power of government to establish child support guidelines beyond the
child's needs in cases of divorce is also hypocritical. When the government gains control
over children, as in foster care cases, it has identified an expenditure level that is
sufficient to entice unrelated third parties - foster parents - to care for the children.
If the government has decided that the foster care payment is sufficient both to meet the
expenses of the children and also to provide compensation to the caregivers, what
governmental interest authorizes the imposition of a higher burden on divorced parents?
There is no such burden upon parents in intact marriages The government accepts no such
burden for children within its own care. Why, then, can it be proposed that higher burdens
are to be placed solely upon parents who had the misfortune to come out on the short end
of a custody fight?
To say that it is "for the children" merely begs the question. Everyone in
America would be pleased to have more money handed to them by government fiat but what is
the governmental interest that justifies coercion to impose obligations on divorced
parents that are not imposed on married parents? It is not the purpose of this article to
propose a specific cap on child support transfers, but every guideline should have a cap
which reflects the end of the government's interest in intruding into private affairs. To
the extent that the cap exceeds the amount that the state itself is willing to pay for a
child in foster care, the burden should be on the advocates of the higher cap to explain
the rationale for treating divorced parents more harshly.
2. THE CONTENTS OF A CHILD SUPPORT GUIDELINE
There are two fundamental principles that must necessarily be the foundation of any
fair establishment of child support:
* the marginal cost of a child's presence in the household; and
* the after-tax income of the obligor.
The marginal cost of the child's presence in the household is simply a way of asking
what expenses are added to a household by the addition of a child. A single adult may have
the need for a one-bedroom apartment. Adding a child may create the need for a second
bedroom (marginal or incremental cost) but does not create the need for a second apartment
(per capita cost). Marginal cost is important not only because it is the only
rational starting point for assessing the needs of the child but also because it is the
only substantive requirement imposed by the federal government upon the states in the
development of their guidelines. Federal law provides: "(h) As part of the review of
a stile's guidelines required under paragraph (e) of this section [every four years], a
State must consider economic data on the costs of raising children." [41]
Although the concept of marginal cost is well understood and is broadly given
lip service, there is no current guideline in the United States which fully implements a
marginal cost analysis. The economic assumptions in each state's child support guideline
are a melange of marginal cost, per capita cost, and "intact family patterns of
expenditure" factors. For example, in many guidelines, the cost of transportation is
calculated on a per capita basis. That is, in a single parent, two-child household, the
guideline assumes that two-thirds of the cost of the family car is attributed to the
children. Everyone knows that this is not trite. The single parent would need a car in the
absence of the children and the presence of the children merely increases the usage of the
car (marginal cost) beyond the adult's personal use. The use of per capita cost where
marginal cost is clearly required distorts child support guidelines.
Some guidelines utilize data provided by the U.S. Department of Agriculture in a
publication entitled "Expenditures on Children by Families" issued annually and
authored by Mark Lino of the U.S. Department of Agriculture, Center for Nutrition Policy
and Promotion. On its face, however, this report explains why it should not be used for
child support guideline development:
U.S.D.A. uses the per capita method in allocating these [housing, transportation, and
other miscellaneous goods and services] expenses; the per capita method allocates expenses
among household members in equal proportions. A marginal cost method, which assumes that
expenditures on children may be measured as the difference in total expenses between
couples with children and equivalent childless couples, was not used. [42]
"Intact family patterns of expenditure" factors also distort child support
guidelines. These factors purport to measure the portion of intact family income that was
spent on certain activities before the divorce in order to require a similar level of
spending after divorce. The obvious flaw in these intact family patterns of expenditure
factors is that the divorced family no longer has the economies of scale found in the
intact family and must now support two separate households rather than one. A finding that
the average intact family has certain patterns of expenditure is meaningless to divorced
parents who have to devote the bulk of their resources simply to maintaining two separate
households. Only by looking at marginal cost can a rational guideline be developed. We
need to know - what does it reasonably cost Mom during the time the children are with her
and what does it reasonably cost Dad during the time the children are with him? The sum of
these two figures represents the needs of the children and can be fairly apportioned
between Mom and Dad.
The Children's Rights Council has developed a model marginal cost child support
guideline. [43] In addition to utilizing marginal cost, the model guideline clearly
discloses all assumptions to eliminate the "black box" effect found in many
guidelines, acknowledges and measures the costs incurred by both parents, and avoids the
"cliff effect" of large abrupt changes in child support at certain thresholds of
extended visitation.
The second indispensable element for development of a fair child support guideline is
the use of after-tax, rather than gross, income. As described above, the U.S. tax code and
the tax codes of the various states contain numerous provisions which substantially alter
tax liability and after-tax income on the basis of the number of children, child care, and
custodial arrangements. Among these are the head of household tax rates, the dependency
exemption, the child tax credit, and the child care credit. Collectively, these tax
effects can make a difference of many thousands of dollars in after-tax income. Most
fundamentally, it is necessary to use after-tax income because it is after-tax income that
determines how much money people actually have available to meet their living expenses.
Child support guidelines based on pre-tax income create numerous distortions and
inequities among people of similar gross incomes. [44]
Advocates of a gross income approach argue that net income is too complicated and too
subject to manipulation. This can hardly be true since taxpayers must file tax returns
annually under penalty of perjury. Further, both gross income and net income child support
guidelines must make assumptions about future income from a review of data on past income.
In gross income models, the last paycheck stub is used. In net income models, the last tax
return is used. Use of net income is not more difficult, it is just more fair.
3. OTHER GUIDELINE CONSIDERATIONS
In addition to the importance of marginal cost analysis and utilization of after-tax
income, there are a number of other considerations to guideline development including:
a. Avoidance of Hidden Assumptions
Many guidelines are presented as an obligation for the payment of a certain percentage
of income by the obligor. The model by which the percentage was developed and the economic
assumptions that went into the model are undisclosed. The result is that a guideline which
on its face purports to be rebuttable becomes irrebuttable because neither parent can
explain to the court the ways in which their particular circumstances differ from the
undisclosed model. [45] The Children's Rights Council model avoids this flaw. [46]
b. Costs Incurred by Both Parents
The first generation of child support guidelines made a simplifying but highly
distorting assumption. The assumption was that 100 percent of all child-related expenses
were incurred by the custodial household and that all income needed to support the child
should be transferred to that household. Even in cases of minimal visitation, this
assumption is obviously untrue and becomes increasingly untrue with the growing trend
toward extended visitation which approaches joint custody. Robert G. Williams, Ph.D.,
President of Policy Studies, Inc., is acknowledged as the father of child support
guidelines. As a consultant to most of the first-generation state guidelines, Dr. Williams
developed and implemented the income shares and percentage of income methodologies
utilized around the country. In response to an inquiry about the extent to which
visitation expenses had been incorporated into the Virginia guideline and others, Dr.
Williams wrote:
The answer to this question is "none." To my knowledge, there are no data
that would allow us to include in the schedule of support obligations an adjustment for
visitation costs. Our review of other states' guidelines indicates that most states have
not made adjustments for what might be considered normal visitation. [47]
While certain costs are more heavily incurred in one household (e.g., payment of school
fees or insurance premiums), other costs tend to be proportional with the time spent in
each household (e.g., meals). Some costs tend to be "lumpy" (e.g., although
overnights may be split 75-25, both households need to provide a bedroom). Finally, some
costs are incurred primarily by the noncustodial parent (e.g., transportation between
residences). A rational guideline must consider the expenses of both parents. The
Children's Rights Council model contains a mechanism for crediting the costs incurred by
both parents. [48]
c. Avoidance of Primogeniture
Some guidelines discriminate against subsequent children. Sometimes known as the
"second family problem," these guidelines penalize second-family children. These
guidelines specify that a child support obligation must be calculated as if the subsequent
children did not exist and then relegate these children to whatever dregs are left of the
non-custodial parent's income. There is no moral basis to this discrimination and the
state has no interest in disadvantaging one group of children in relation to their
half-siblings. The proper resolution is to determine the total number of children to be
supported in all families, find the guideline amount for that number of children, and
distribute the child support to the households being supported based on the number of
children supported in each household.
d. Anti-Joint Custody Bias
Some guidelines were written with an eye toward discouraging the utilization of joint
custody. In these guidelines, an arbitrary factor (such as 150 percent) is imposed to
increase the child support obligation and discourage joint custody. There is no economic
basis for this surtax.
Every custody order appears on a continuum in which the child's time is divided between
two households. Usually, the range is between 75/25 (standard visitation) and 50/50 (equal
joint physical custody). At any point in the range between 75/25 and 50/50, both
households are incurring expenses on behalf of the children. Many of these expenses
are duplicative such as the need to provide space, clothes, toys, etc., in both houses.
There is no point on the continuum at which a substantial joint custody surtax can
logically be imposed. The rational course is to determine the point on the continuum
occupied by the particular couple, determine the expenses incurred in each household, find
the sum of the expenses in the two households, and establish a child support amount that
allocates obligation for the expenses between the two parents. The Children's Rights
Council model avoids the "cliff effect" or joint custody penalty which appears
in many first-generation guidelines.
4. DRAFT FOR THE AMERICAN LAW INSTITUTE
Professor Grace Blumberg, under commission from the American Law Institute, is working
to develop another version of a model guideline that is reported elsewhere in this volume.
While Prof. Blumberg has identified and attempted to correct some of the flaws in existing
guidelines, her document is largely a backward-looking recapitulation of old practices
that is likely to have little impact.
On the positive side, Blumberg's draft correctly recognizes the need to utilize net
income as the starting point for child support calculations because, as we all know,
families must live upon their after-tax income, not their pre-tax income. Use of after-tax
(net) income eliminates many of the distortions and absurdities which have crept into the
existing child support guidelines of some states.
Further, the draft correctly states that child support should involve a calculation of
the marginal expenditures resulting from the presence of the child in a household. This is
basic economics. An adult has certain expenses in maintaining a household. Adding a child
to that household adds certain new expenses. These "marginal expenditures"
caused by the addition of a child are the proper subject of a child support guideline. The
use of per capita expenditures would create an artificial transfer of costs from the adult
to the child and, if allowed to become a part of the child support formula, would create a
disguised alimony which is utterly inappropriate as a matter of child support enforcement.
While recognizing the centrality of marginal cost, Blumberg does not know when to stop.
Under section 3.05 of the draft, a rulemaker is supposed to calculate a
"base" child support obligation and then add a "supplement"
obligation. As defined, however, the "base" obligation represents the full
marginal cost. That is, the "base" calculation asks the rulemaker to assume that
the two households have equal pre-transfer incomes (i.e., equal standards of living
without children) and then to make a transfer to the residential household sufficient to
maintain equal standards of living after the addition of the child to that household
(marginal cost). This is a cumbersome way of calculating marginal cost but, if the
Blumberg draft had stopped here, there would be no substantive problem because the
marginal costs of placing the child into the custodial house would have been fully
accounted for As Blumberg herself explains: "Those familiar with the concept of
marginal child expenditure may wish to use it in lieu of the 'base,' as defined by the
principles. They are substantially equivalent measures." [49] The "base" or
"marginal cost" fully captures the costs associated with placing the child into
one of the households. The problem is that Blumberg then proceeds to seek a
"supplement" to raise the standard of living of the custodial parent. All of
this supplement is disguised alimony. If the custodial parent is entitled to an enhanced
standard of living, it is properly treated in the court's handling of alimony issues.
There should not be a concealed alimony component built into the child support guideline.
This point is particularly important because of differences in the treatment of alimony
(taxed to the recipient) and child support (tax-free to the recipient).
As for the rest, the Blumberg draft largely copies from the District of Columbia Child
Support Guideline. The ill-wisdom of that approach can be seen in the fact that, since the
1988 adoption of this model by the District of Columbia and Massachusetts, [50] no other
state has moved in this direction. The District of Columbia Guideline was full of bad
ideas ten years ago and a new dust cover makes it no better now. [51]
The schizophrenia inherent in the ALI project is unavoidably transparent when the
various chapters of the overall project are seen together Ira Ellman was commissioned to
write a chapter on alimony. Grace Blumberg was commissioned to write a chapter on child
support in which she seeks a disguised alimony "supplement" because having
access to more money is in the best interests of children. Kate Bartlett was commissioned
to write a chapter on child custody in which she forbids the fact finder from considering
the parents' income during the determination of the child's best interests. Collectively,
the court is told not to consider income in determining the child's custodial best
interests but, after custody is established, the same court is told to set child support
based on the principle that access to more money is pan of the child's best interests.
Unintentionally, Blumberg provides the most powerful treatise ever written in support
of the case for father custody. Page after page argues for the centrality of more money in
the best interests of the children. In 252 pages of single-spaced text, Blumberg
demonstrates that it was a mistake to bifurcate custody and support. A return to the
historical rule that a parent has the obligation to support his child in his own home
would eliminate 252 pages of analysis and calculations on how to make one household bear
the costs of elevating a different household.
As stated by Eloise Anderson, director of California's Department of Social Services:
Child support issues probably need to be rethought in light of more than just
middle-class women and their children.... What is it that we expect out of fathers vs.
mothers? We say fatherhood is a check and that men are not expected to nurture their
children. Surely we won't let him have custody of his child.... The woman, we base her
value to the family on nurturing, not financial responsibility.... Therefore he bears all
the financial burden. I think that is an unfair policy, which means that we have to
rethink custody. If a father has a lot of resources and mom has very few resources, and
we want the child to continue to live in the comfort the father provided, maybe the father
ought to have custody. [52] (Emphasis added.)
C. Custody Reform
Gender bias in custody determinations is slowly dying but acceleration of the movement
for custody reform has implications for child support enforcement.53 Federal data show
that child support compliance is 90.2 percent in cases of joint custody, 79.1 percent in
cases where visitation is protected, and 44.6 percent in cases with neither joint custody
nor protection of visitation. [54] These data confirm the intuitive point that parents
increase their support of children as they are permitted to be involved with them. Joint
custody both increases willingness to pay and decreases the amount of income that needs to
be transferred because a substantial portion of the child's needs will be provided in each
of the joint custodial homes.
Beyond joint custody, if the goal of child support policy is improved well-being for
children, we must join Eloise Anderson in a serious reconsideration of the value of father
custody. The world is changing; we are starting to recognize that fathers are more than
the sum of their paychecks. In response to a letter from a divorced mother explaining her
acceptance of father custody for the couple's children, even Ann Landers was moved to
write: "I agree wholeheartedly and hope your letter will open some hearts as well as
some eyes. For the sake of the children, I hope all divorced mothers will read this and
learn from what you have written." [55]
D. The Need for Research
Everyone is familiar with the Census Bureau figures on child support noncompliance but
no one has investigated the reasons for the noncompliance. How many of these obligors are
unemployed, disabled, supporting second families, engaged in civil disobedience because
they have been denied access to their children, imprisoned, or even dead? Incredibly, all
of these categories, even the dead (the ultimate "deadbeats"), were lumped
together as "non-compliant" by the Census Bureau. This occurred despite the fact
that a General Accounting Office review of the Census Bureau data showed that 66 percent
of custodial mothers reported the reason for noncompliance as "father unable to
pay." [56]
To succeed with noncustodial parents, we must begin to hear them and respond to their
concerns as parents and as human beings Children are born with and need two parents.
Family formation, family preservation, and the demilitarization of domestic relations
courts offer the greatest hopes for major improvement in child support compliance.
The Fragile Families Coalition coordinated by the Ford Foundation estimates that there
are over 3 million noncustodial fathers, who are eligible for food stamps. If these
obligors are so poor that they need assistance simply to put food on the table for
themselves it is unfair to characterize them as "deadbeats" when we find that
they do not have resources to transfer to another household We need more research on the
real-world consequences of child support guidelines. We know that, at lower income levels,
existing child support guidelines create unsustainable burdens. We also know that, at
higher income levels, existing child support guidelines create disguised alimony. We
know that there is gender bias in custody determinations. Until there has been a fair
establishment of child custody, visitation, and the level of the support obligation, there
is no moral authority for enforcement of the support obligation.
IV. Conclusion
Child support reform is needed but that reform must recognize obligors as citizens and
as parents, not as anonymous beasts to be herded more efficiently. We know that the three
best predictors of child support compliance are (1) the fairness of the order; (2) the
obligor's access to the child; and (3) the obligor's work stability. Improvement in child
support compliance must be addressed to these factors and not to old myths and
stereotypes.
[1] Hon. Anne Kass, Can Everyone Pay Child Support, 18(12) Fair$hare, Dec. 1998,
at 16.
[2] These are the "Public Enemy Number One" lists of the biggest evaders and
worst scofflaws that each state has been encouraged to create to capture the horrid
miscreants.
[3] Indiana Family and Social Services Administration, Indiana's Wanted For Failure In
Pay Child Support (Jan. 25, 1999)
<http://www.state.in.us/fssa/cse/poster.htm.>
[4] Don't take my word for it - you can check for yourself on the Internet at:
http://www.dhhs.state.nh.us/Index.nsf/vHTML/AllStates.
[5] Virginia Dept. of Social Services, Division of Child Support Enforcement, Previous
Most Wanted Lists Yield Results, The Support Report, Oct. 1991, at 4.
[6] Kathleen Parker, Deadbeat Dads More Myth Than Reality, Orlando Sentinel,
Jan.24, 1999, at G3.
[7] Id.
[8] Paul Valentine, Md. Cleans Up on Child Support in Update on the News, Wash.
Times, June 9,1997, at B5.
[9] Polly Ross Hughes, Many Dads Who Don’t Pay Child Support Are Destitute, HOUSTON
CHRON., Dec. 20, 1998, at 1.
[10] U.S. Dept. of Health and Human Services, Charge It, Please, CHILD SUPPORRT
REP., 1991, at 6.
[11] Welfare Dependency: Hearings Before the Subcommittee on Social Security, and
Family Policy, Committee on Finance, United States Senate, 102d Cong. 4 (1991)
(Statement of JoAnne Barnhart, Assistant Secretary for Family Support).
[12] General Accounting Office, Interstate Child Support: Mothers Report Receiving
Less Support from Out-of-State Fathers, GAO/HRD-92-39FS, January 1992 at 19.
[13] At one point, the federal government did begin a survey to learn more about
obligors. "The Survey of Absent Parents" (SOAP) was conducted on a pilot basis
in two states and undercut the stereotypes and the institutional desires of OCSE. It was
never published because Wayne Stanton, thc administrator of the Family Support
Administration and head of the child support enforcement effort, cancelled funding for the
project. See Memorandum of Dr. Robert B. Helms, Assistant Secretary for Planning
and Evaluation, U.S. Dept. of Health and Human Services, to Wayne Stanton, Administrator,
Family Support Administration (Oct. 1, 1986).
[14] Downey-Hyde Child Support Enforcement and Assurance Proposal: Hearing Before the
Human Resources Subcommittee, Committee on Ways and Means, United States House of
Representatives, 102d Cong. 126 (1992) (Statement of Sylvia D. Folk).
[15] L. Mendel Rivers, Jr, The Magic Fountain, POST AND COURIER (Charleston,
S.C.), June 27, 1992, at 15A.
[16] Former Deputy District Attorney Elisa Baker, quoted in Nicholas Riccardi
& Greg Krikorian, Failure to Provide: Los Angeles County’s Child Support Crisis,
L. A. TIMES, Oct. 11, 1998, at A1.
[17] Id. (reporting that 53% of the cases in Los Angeles County do not provide personal
service and that 70% of noncustodial parents are not present in court when their child
support obligation is set).
[18] Combined FICA and Medicare rate of 7.65%.
[19] Federal income taxes of $754 and average slate income taxes of $271.
[20] Twenty-five percent of gross income is used as an average child support guide line
amount for two children. In my part of the country, the guidelines are all somewhat
higher. See VA. CODE ANN § 20-108.2 (Michic Supp. I998) (30.4%); MD. FAM CODE ANN. §
12-204 (Michie 1999) (30.7%); D.C. CODE ANN § 16-916.1 (Michie Supp. 1998) (26%, 28.6%,
or 29.9% depending on ages of children).
[21] These figures are chosen in keeping with the popular statistic that, on average,
women earn 75% of men's earnings.
[22] Depending upon the state, between 66% and 75% of all divorces are initiated by the
wife.
[23] MD. FAM. CODE ANN. § 12-204 (Michie 1999)(without addition of health insurance or
any other supplemental burden on the obligor).
[24] Custodial parent receives head of household status, dependency exemptions ($8,l00
for self plus two children), standard deduction ($6,250) for a taxable income of $15,650
and a tax of $2,344 prior to credits. Credits include child tax credit ($800) and Earned
Income Credit ($25) resulting in a net federal income tax of $1,519. The noncustodial
parent, filing as a single taxpayer, has taxable income of $33,050 after the dependency
exemption for himself ($2,700) and the standard deduction ($4,250) resulting in an income
tax of $5,952.
[25] LAURA WHEATON & ELANNE SORENSEN, TAX REFIEF FOR LOW-INCOME FATHERS WHO PAY
CHILD SUPPORT (1998).
[26] Note that the roles are sometimes reversed, When mothers are ordered to pay child
support, their compliance rate is lower than that of fathers, See, e.g., OFFICE OF
CHILD SUPPORT RECOVERY, STATE OF GEORGIA, 1991 STATISTICS OF CHILD SUPPORT
COMPLIANCE; DANIELLE R. MEYER & STEVEN GARASKY, CUSTODIAL FATHERS: MYTHS, REALITIES
AND CHILD SUPPORT POLICY (Office of Human Services Policy, Office of the Assistant
Secretary for Planning and Evaluation, U.S. Department of Health and Human Services,
Technical Analysis Paper No.42, July 1991).
[27] Bureau of the Census, Child Support and Alimony: 1989, CURRENT POPULATION
REPORTS, Series P-60, No. 173, September 1991, at 7. These figures have held
relatively constant over time. The 1999 report found 85% compliance in joint custody
cases, 79% compliance where visitation was protected, and 56% compliance where neither
joint custody nor visitation was protected. Bureau of the Census, Child Support for
Custodial Mothers and Fathers, CURRENT POPULATION REPORTS, Consumer Income, Series
P60-187, August 1995.
[28] See, e.g., Jed H. Abraham, The Divorce Revolution "Revisited":
A Counter-revolutionary Critique, 9 N. li.t.. U.L Rev. 251 (1989); Herbert Jacob, Another
Look at No-Fault divorce and the Post-Divorce Finances of Women, 23 L. & Soc’y
Rev. 1 (1989); Hugh McIssac, The Divorce Revolution by Lenore Weitzman, TRANSITIONS
1 (July 1986); Susan Faludi, Don’t Be Happy, Worry,WASH POST MAG., Oct.
20, 1991 at 17. See Study Goofed on Gap in Post-Divorce Standard of Living, MANCHESTER
UNION LEADER, May 17, 1996. Despite being massively wrong, Weitzman’s figures
have become ingrained in both the popular culture and in academic circles. It is hard to
find a text on thc subjects of divorce custody or child support that does not repeat the
erroneous figures.
[29] Among the many items reported in the media, see R. H. Melton, Va. Falsely
Threatens 2,300 in Mistakes on Child Support, WASH POST, Jan. 29, 1998 at D7;
Allen G. Breed, Woman Take’s on Child Support System, A.P., May 2, 1998
(after spending $20 million on a computer system for child support enforcement, a
state legislative audit found that "almost one-third of the data was incorrect
leading the agency to wrongly collect about $1.7 million from 3,788 parents"). Hamil
R Harris, Parents Fighting Bugs in D.C..Child Support, WASH POST, July
18,1998, at A1 (an audit determined that 3,500 checks (or more than 10% of the total) were
not forwarded to custodial parents despite payments by the noncustodians); Nicholas,
Riccardi & Greg Krikorian, Failure to Provide Los Angeles County’s Child
Support Crisis, L.A. TIMES, Oct. 11, 1998, at Al (an average of 350 men per month are
assigned child support orders despite the fact that they are not the fathers of the
supported children); William J. Booker, State Charges Former Staffer in $700,000 Fraud
Case, INDIANAPOLIS STAR, Jan.28, 1999, at Al (a child support enforcement
employee diverted at least $680,000 in support payments to himself and his girlfriends).
[30] Information on implementation of these programs is available from organizations
such as the Children's Rights Council, 300 I Street, N.E., Suite 401, Washington, DC
20002-4362, (202) 547-6227.
[31] Family Support Act of 1988, Pub. L. 100-485, § 103 requires states to have
procedures for review and adjustment of orders upon the request of either parent.
[32] As the Department of Health and Human Services has explained:
The agency cannot represent the individual in an adversarial or traditional
"attorney-client" capacity, but can perform services deemed to be appropriate
and in the best interest of the child.… Enactment of this provision [Section 103 of
the Family Support Act of 1988] has raised a number of concerns from states' program
administrators and attorneys that if the agency attempts to represent both parents in the
matter, despite their clearly adverse interests such dual representation would involve a
classic conflict of interest. Our agency has taken the position that the Family Support
Act provides that each party to the support order has a right to request a review and, if
appropriate, the state agency must adjust/modify the order in accordance with the state's
child support guidelines…. The child support agency does not provide legal service
per se and the traditional attorney-client relationship does not exist between the
recipient of child support services and the agency attorney handling the case
Letter from Leon R. McCowan, Regional Administrator, Department of Health and Human
Services, to Hon Richard Armey, U.S. House of Representatives (Feb. 20, 1992).
[33] For example, Clarence Lee Brandley, a child support obligor was convicted of
murder and sent to death row. Nearly ten years later his conviction was overturned, he was
released and the state began pursuit of $22,000 in child support arrearages that had
accrued while he was in prison. The Texas State Attorney General argued that the Bradley
Amendment made pursuit of the arrearages mandatory. Gary Taylor, Death Sentence Is No
Excuse to Avoid Child Support, Nat’l L.J., Mar. 1, 1993. While some states cling to a
notion that prisoners are "voluntarily" unemployed and deserve to accrue
arrearages. others acknowledge the prisoner's inability to pay and permit a petition for
downward modification. See Wills V. Jones, 667 A.2d 331, 332 (Md. Ct. App. 1995).
[34] In sonic states. a change of court rule or statute may be needed to overcome a
local requirement that child support orders must be for a sum certain.
[35] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, §401(a).
8 U.S.C.A. § 1611 (West Supp. 1998).
[36] The manual may he obtained from. U.S. Dept. of Health and Human Services,
Administration for Children and Families, Office of Child Support Enforcement, National
Reference Center, Mail Stop OCSE/RC, 370 L’Enfant Promenade, S.W., Washington, DC
20447, (202) 401-9382. Pro se parenting plans forms are available from the Children's
Rights Council, supra note 3.
[37] Child Support Enforcement Amendments of 1984 (amending 1975 Social Security Act,
42 U.S.C.A. §§ 657-662); Family Support Act of 1988, Pub, I. No 100-485, § 103(a)(2),
102 Stat. 2346 (1998). See Fitzgerald v Fitzgerald, 566 A.2d 719, 724 (D.C. Ct. App
1989) (in overturning the first District of Columbia child support guideline on the ground
that it constituted a substantive change of law that could not be promulgated by the
Judicial Committee, the court stated, "'The legislation did not specify the contents
of the guidelines or the particular goals to which they should aspire.").
[38] John Rosemund, Worst Deadbeat Dad Case Draw's Attention to Unfair Court System,
INDIANAPOLIS STAR, Sept.24, 1995.
[39] Deadbeat Dad Is Freed, Will Pay $500,000, WASH. POST, Dec. 8, 1995, at A35.
[40] Ann Gerhart & Anne Groer, The Reliable Source, WASH. POST, Jan.22,
1999, at C3.
[41] 45 C.F.R. § 302.56(h)
[42] U.S. Dept. of Agriculture. Expenditures on Children by Families,1998 Annual
Report, Executive Summary, Misc. Pub. No.1528-1998.
[43] Donald J. Bieniewicz, Child Support Guidelines Developed by Children’s
Rights Council, in CHILD SUPPORT GUIDELINES THE NEXT GENERATION (Margaret
Campbell Haynes, ed. 1994). Guideline is available from Department of Health and
Human Services, supra note 36, at Mail Stop OCSE/TC or from the author (703) 255-0837.
[44] For example, among obligors with $30,000 of gross income, some are self-employed,
others are corporate employees The self-employed must pay combined FICA and Medicare taxes
of 15.3% and have less income available to pay child support it than the corporate
employees who pay only 7.65% combined FICA and Medicare. Similarly, taxpayers with equal
gross incomes differ substantially in the availability of deductions, credits and other
adjustments which significantly affect tax liability and after-tax income.
[45] See Fitzgerald v. Fitzgerald, 566 A.2d 719, 731 (D.C. Ct. App. 1989) where
court stated:
Since the guideline is presumptively fair, any party opposing its application would
have a higher burden of proof than it might have without the guideline….The guideline
report offers no economic basis for the Child Support Guideline Committee's
determinations. Consequently, the party trying to argue against application of the
guideline faces a monumental obstacle in attempting to demonstrate that the case is
"exceptional" without knowing what "unexceptional" is. The existence
of the guideline alone has coercive power through the rigidity of its calculations and the
ease of its application. Rather than deciding each case individually, decision-makers may
be tempted to plug in numbers that explain themselves without making further findings.
[46] THE NEXT GENERATION, supra note 43.
[47] Letter of Robert G. Williams, Ph.D., President, Policy Studies, Inc., to Paul M.
Robinson, Virginia Child Support Study Commission, August 28, 1992.
[48] THE NEXT GENERATI()N, supra note 43.
[49] Grace Blumberg, Principles of the Law of Family Dissolution: Analysis and
Recommendations, § 3.05, Comment D (Apr 8 1998).
[50] The lack of appeal in the D.C./Massachusetts, model is reminiscent of the
political quip about the 1984 Dukakis campaign which won only D.C. and
Massachusetts, "As goes Massachusetts, so goes the District of Columbia." Prior
to 1984, a popular political aphorism was that, "As goes Maine, so goes the
Nation."
[51] When the D.C. model was adopted by court rule, it was overturned by the court of
highest jurisdiction. Fitzgerald V Fitzgerald 566 A.2d 719 (D.C. Ct. App l989).
When the bulk of the guideline was re-adopted by legislation the following year, it could
not be deemed unconstitutional, but the flaws remained. The mere fact that the
Constitution does not prohibit a particular approach does not make that approach a good
idea.
[52] Michael W. Lynch, Hints From Eloise, REASON, June 1997, at 35.
[53] Although the first joint custody statute was enacted only about 20 years ago, the
concept has spread rapidly and forty-six states plus the District of Columbia now have
statutes that specifically authorize joint custody. Ten states and D.C. have a presumption
in favor of joint custody. Another ten have a presumption if both parents agree. See JEFF
ATKINSON, MODERN CHILD CUSTODY PRACTICE § 6.01 (Supp. 1998).
[54] See generally supra note 27.
[55] Ann Landers, WASH POST, Aug. 13, 1998, at C19
[56] Interstate Child Support, supra note 12.
