May 25, 2014 by Robert Franklin, Esq.
I just reported on a Nebraska Supreme Court case that held that a victim of paternity fraud, who was ordered, prior to 2008, to pay support for a child he believed to be his, has no legal recourse once he learned the child had been fathered by another man. The state offers him no remedy for the mother’s fraud. He has no way to cease paying and no civil cause of action against her for her wrongdoing. So he’s stuck paying to support a child who’s not his and with whom he has never had a relationship.
The final indignity? The state took the child from the mother apparently for abuse or neglect, so the boy now lives with his actual father whom she finally got around to naming. The defrauded man is now paying support to the boy’s biological father. Guess who’s not paying a dime. That’s right, Mom, who is now a non-custodial parent, has no obligation to pay support. Amazing.
With that legal, factual and moral outrage squarely in the public eye, now comes this op-ed in the Lincoln Journal Star (Lincoln Journal Star, 5/15/14). It’s by the excellent Chris Johnson, who’s authored a number of previous pieces on the need to enact shared parenting legislation. His article, like the Supreme Court case, is about child support and, again like that case, it demonstrates how outrageous Nebraska law is on the subject, but in a more general way. Johnson is a long-time family lawyer in the state, so he knows whereof he speaks.
Our current child-support system is broken: Child-support awards are too high, enforcement practices violate basic constitutional requirements, and there is a complete lack of accountability in how child-support is spent.
Nebraska has child-support guidelines that guide judges in setting child-support awards. Our guidelines assume children should receive the same proportion of parental income they would have received if their parents had stayed together. This assumption, of course, ignores the fact the combined income of the parents now needs to support two households instead of just one.
Nebraska child-support awards increased substantially after the guidelines were first adopted and their focus shifted from need to income sharing and redistribution. Our guidelines result in some of the highest average child-support awards anywhere in the United States.
Our guidelines have a “safety net.” In theory, child-support obligations are not supposed to reduce the paying parent’s take-home pay below $950 per month. With that $950, the parent has to pay his rent, utilities, health care, food, car expenses, etc. … and spend time with his children when they come to “visit.” In practice, this safety net, already inadequate, is often ignored by judges.
This problem has been confirmed by the Federal Office of Child Support Enforcement (OCSE), which recently found, “most (child support) arrears are owed by parents who owe substantial amounts of arrears, have little or no income, and have owed arrears for some time.” The OCSE encouraged judges to set more realistic child-support awards, but this guidance hasn’t changed judicial behavior.
According to the National Conference of State Legislatures, “Research has found that parents are more likely to make consistent payments when the child support amount is 20 percent of earnings or less. Research shows that low earning noncustodial parents are often simply not able to pay the ordered level of child support, especially when the order is set too high relative to earnings.” In the author’s experience, Nebraska child-support awards average 28 percent to 33 percent of net earnings.
The state, for its part, aggressively pursues unpaid child support, even against those who can’t pay, and often jails fathers without complying with basic constitutional requirements. In 2011, the U.S. Supreme Court published guidance about what courts must do before jailing people for failure to pay child support. A year later, the OCSE sent guidance to all state child-support enforcement agencies about these constitutional requirements. Despite this, these requirements are simply ignored in many cases.
One of the most common complaints about child support is the lack of accountability in how the funds are spent. Once paid, noncustodial parents have no way to ensure the funds are actually spent for the benefit of their children. Oddly, this arrangement is very different from other similar situations. For example, if a parent manages money for a minor child through a conservatorship, that parent-conservator must account annually for the use of the funds.
Nebraska has a child-support accounting statute, but its requirements are so burdensome that it appears only one accounting has been ordered in the last 25 years. Other states, such as Colorado, Oklahoma and Utah, have effective accounting mechanisms that help ensure child support actually reaches the children.
Several reforms would help improve our child-support system. First, the guidelines should reflect reality. The fiction that Mom and Dad don’t have to support two homes should be eliminated. The child-support guidelines should be revised to ensure child support is based on need and a realistic ability to pay.
Second, judges and child-support enforcement officers need additional training on constitutional requirements, and indigent parents should be provided free legal counsel in these cases. The costs of these programs should be paid from the substantial federal incentive payments the state receives for the collection of child support. Few people know the state receives incentive payments from the federal government that increase with the amount of child support collected, which some say encourages overzealous enforcement practices.
Third, our existing child-support accounting mechanism should be strengthened to help prevent the theft of child support from its intended beneficiaries, the children. Our existing conservator accounting mechanism and the child-support accounting mechanisms in other states would be good models.
I can’t add a lot to Johnson’s piece, but a word or two.
First, the Office of Child Support Enforcement is trying to have it both ways. It periodically issues a statement to the effect that more child support would be paid and less money spent pursuing arrears if state judges would simply set orders at levels non-custodial parents could actually pay. That’s of course true, but what else is true is that the reason judges set orders so high is OCSE policy. After all, as long as states are receiving federal largess for child support collected, it’s only logical to try to collect as much as possible. And the higher the orders, the higher the levels of collections. If thousands of fathers statewide are plunged into poverty and, often enough, prison, well, you can’t make an omelet…
Of course it’s not the OCSE’s fault. Congress makes the laws and administrative agencies just carry them out. But when it comes to executing the intent of Congress, the OCSE has a good bit of leeway. So, for example, it could penalize states for setting orders too high by reducing the amounts received from Washington. But no, better to pursue a policy that abuses dads and kvetch about it than actually take steps to rectify the situation.
And that of course brings us to the fact that the OCSE pays a whopping $5 billion a year to states for their child support enforcement, but only $10 million a year to enforce visitation. Apart from the blatantly sexist nature of that arrangement, it’s bad for kids and for the child support enforcement effort. Social science teaches, and many state enforcement agencies so state, that, when Mom doesn’t interfere with Dad’s visitation, he’s much more likely to pay what he owes. So the obvious response would be to enforce visitation as vigorously as we do child support. After all, the one makes the other easier. Win-win, right?
Nope. The 500:1 ratio of dollars spent for child support enforcement to those spent on visitation enforcement all too clearly shows we not only don’t care much about fathers’ visitation rights, but not nearly as much as we say we do about little Andy or Jenny’s receiving the money they’re due.
Johnson alludes briefly to the 2011 U.S. Supreme Court case that held that, when a mother sues a father for child support arrears, no matter how poor he is, no matter how uneducated, he’s not entitled to a lawyer to help him defend himself. Yes, he stands to go to jail should he fail to prove inability to pay, but, since he’s before the court on a contempt charge, not a criminal charge, the due process rules are different. A little child might point out that the jail is the same regardless of what the man occupying the cell is in for, but the Court is far too sophisticated for such simple and obvious blandishments.
In his opinion for the majority, Justice Breyer engaged in some fantasies that are possible only in the mind of a judge who has not the least notion of the realities of child support court. Breyer imagined that, for fathers who don’t have the intellectual resources to prove their inability to pay, the judge will be there to assist them. No, seriously, he suggested that. Lawyers who practice in child support courts notice that “hearings” usually last about five minutes with the judge more an advocate for the mother or the state than for the father.
Johnson’s suggestion that Nebraska needs to utilize its power to demand accountings of conservators, has merit, but I think there’s an easier, cheaper way. We hear time and again that child support funds are for the child, not the mother. As a legal matter, that’s not an unusual arrangement. Whenever anyone who’s under a legal disability, such as a child or a person who’s mentally unable to conduct his/her own affairs, stands to receive money, it’s likely that a competent adult will receive them on behalf of the child or disabled person. In those situations, states want to make very certain that the adult doesn’t use the money for anything but the child or ward, so often they require periodic accountings to be made of the receipts and disbursements. Often enough, the person is required to post a bond to ensure compliance with the rules on the use of the money held for the other person.
So if a mother receives child support that’s for the child, as all agree it is, why shouldn’t she have to account for how it’s spent? That’s Johnson’s point, and it’s a good one, but I suspect the answer is that judges don’t have the time to examine thousands of such reports each year. Besides, who’s going to audit the accounting? Who’s going to investigate whether Mom spent $12.50 on pampers on August 3rd? Demanding an accounting sounds like a good idea, but looks unworkable to me.
Better would be to issue debit cards drawn on accounts into which only one form of payment goes – child support – and from which only certain types of purchases may be paid. So certain items such as clothing, school supplies, diapers, medicines, food, etc., could be paid by that debit card. But no car payments, no alcoholic beverages, etc. It would be easy and cheap for the state while still giving dads some assurance that the money they pay every two weeks actually benefits the child.
Oh, and one other thing. It’s not much of an issue in Nebraska, where next to no fathers receive primary or sole custody, but there are a few, so the rules should benefit custodial fathers the same as they do custodial mothers. That means fathers with custody of their kids should be as likely as mothers to be the recipients of child support orders. The U.S. Census Bureau reports that, in 2011, the most recent year for which we have statistics, about 56% of non-custodial fathers have been ordered by a judge to pay support, but only 28.8% of non-custodial mothers. If children need support, and if parents have a moral obligation to support them, those obligations need to fall on mothers as heavily as on fathers.
It’s a strange world out there for fathers in family courts in the State of Nebraska. It doesn’t promise to get less so any time soon. But Chris Johnson’s doing his part, for which we thank him.
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