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.