Author: Super User

November 7, 2019 by Kenya Rahmaan

Richard M. Scotti was always a dedicated father and provider to his children and paid his child support on time and in full for years.  It wasn’t until the printing industry, largely in part due to the age of the Internet, began to suffer that Scotti was forced to sell his business in order to pay off debts accrued while he was fighting to hold on to his company.  Almost overnight, his six-figure income decreased to the low five figures. While he scrambled to repair his life, he did as he was advised and filed immediately for a downward modification of his child support order. He has since been living a nightmare which worsens as he awaits the jail sentence looming over his head.

Yes, jail.  The issues began when the state of New York failed to adhere to the guidelines concerning when child support modifications were appropriate.  According to FindLaw, the court may modify an order of child support where there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted.  The judge denied Scotti’s modification request, ignored income documentation proving the decrease in income, and used imputed income as justification for denying the request. These denials were a violation of child support policies and resulted in unpaid child support and arrears increasing at an alarming rate.

Everyone tasked with working on the Scotti case failed to follow the New York modification guidelines and the Judge specifically ignored 45 CFR §302.56 of The Federal Register, published on December 20, 2016 (http://bit.ly/2l1cuMi).  Based on the Final Rule (2016), if imputation of income is authorized, the state must take into consideration specific circumstances of the non-custodial parent to the extent known.  Some of these factors include but are not limited to current earnings, age, education, local job market, availability of employers willing to hire the non-custodial parent, and prevailing earning levels in the local community.  Not only did they not consider that Scotti was entering new to the job market arena at almost 60 years old, they also didn’t consider that based on experience in the quickly disappearing printing industry, it would be nearly impossible for him to earn income as an employee that he’s earned as a business owner. 

Finally, Scotti was recently convicted of ‘willfully’ failing to pay child support and is awaiting sentencing.  The judge has ignored precedent established by the United States Supreme Court in Turner v Rogers. This case is supposed to be used by the states in all contempt cases as the determination of ability to pay is critical before a parent can be sentenced to prison.  Under established Supreme Court principles, “a court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order” (http://bit.ly/2mJXxi4).   And yet, even after repeatedly providing evidence, Scotti is due to be incarcerated for up to one month. Overseers of the child support system must be diligent in following the guidelines set forth in order to protect the rights of non-custodial parents. Dead broke should never mean ‘Deadbeat’ and it is not a crime to be poor.

Kenya Rahmaan is the author of The Child Support Hustle and founder of a national movement to reform child support policy.

November 6, 2019 by Robert Franklin, JD, Member, National Board of Directors

The State of Ohio has made some changes to its child support guidelines.  Some of those are much-needed and right egregious wrongs.  Others fail to correct long-term flaws in a deeply flawed system.

The good news includes the fact that parents paying child support will now be permitted to retain a minimal amount of their income.  That’s called a “self-sufficiency reserve,” and should be an integral part of every state’s child support calculations.  As we’ve seen elsewhere, judges can find remarkable ways of getting around the clear intent of a state’s legislature when it established such a reserve.  Still, having an SSR on the books is far better than not having one.

The new law also deals better with cases in which a payor parent is subject to more than one child support order at a time.  Plus, it caps the amount of money an obligor parent would have to contribute to daycare expenses and it allows for administrative review of deviations from the guidelines where circumstances that gave rise to the deviation remain in place.  That latter provision will save parents the time and money involved in returning to court.

Now for the good/bad news.  The new law allows for minor modifications to child support orders to reflect parenting time.  That’s good news because, insupportably, prior to the new law, no such modification was required.  A parent with 50% of the parenting time could be made to pay as much as one with none.  This article makes the point (Columbus Dispatch, 10/31/19).

Prior to March, 100% of the support for the children transferred into one household, regardless of the parenting time split. A 50/50 parent could have been ordered to pay the same amount in child support as an absentee parent.

But that’s where the good news ends and where the linked-to article goes off the rails.  The article’s author, attorney Matthew Rinear, claims that the above-mentioned inequity has been “rectified.”  It hasn’t.

Now, an obligor who has at least 90 overnights with the children, which usually is the court’s minimum “standard” parenting time order, is granted a mandatory 10% reduction in his/her child support obligation.

Now, 90 overnights with the child is about 25% of the year.  The payor of course presumptively pays about 25% of the child’s daily expenses because he/she has the child that amount of time, but only receives a 10% break on his/her obligation.  That means a net transfer of funds from the non-custodial parent to the custodial one.  Why do that?  Why not simply establish the total amount the parents will have to pay to support the child for, say, a year and then adjust the amount transferred from one to the other based on parenting time?

In his response to the bill prior to its becoming law, NPO’s Don Hubin noted this:

Suppose the Obligor and Obligee each earn $50,100 per year and have two children subject to the child support order. Their combined annual child support obligation under the new tables would be $17,631; each would have an obligation of $8,815.50 per year. Now, suppose that Obligor has the children 164 overnights per year (45% of the overnights). Applying the standard parenting time adjustment, as specified in SB 125, the Obligor’s guideline child support obligation would be $7,933.95.

In that case, the obligor would incur 45% of the direct costs of raising the child, i.e. $7,933.95 and would pay that same amount to the custodial parent, for a total child support outlay of $15,867.90.  That’s plainly not child support, but support for the custodial parent.  Plus, it places an undue burden on the payor.  This, according to Rinear constitutes “rectifying” the old bad law.

Astute readers will already have noticed that, under this regimen, child support has little to do with what a child needs and everything to do with what parents earn.  The idea that a child who’s brought into the world by parents earning, in Hubin’s example, $100,200 per year requires over $17,000 to support, but one whose parents earn, say, half that, automatically requires less makes no sense.  Seemingly there’s no longer any thought given to what child support was originally meant to be – child support.  Whenever child support reform advocates bring up the subject, we’re indignantly asked whether we think children of divorce need support.  Of course we do, but clearly, child support laws and guidelines have little to do with ensuring that children receive what they need.

The usual excuse offered for that is the one offered by Rinear.

If an obligor, who by choice only occasionally sees the children, requests the court’s standard parenting time schedule, it raises the question as to whether the obligor’s incentive is to become more involved in the children’s lives or to simply trigger the 10% reduction in child support.

Yes, it’s the old claim that fathers only want to see their children in order to reduce their child support payments.  The claim is backed by no evidence whatsoever.  The Office of Child Support Enforcement has studied every possible aspect of child support and its enforcement and never found any such phenomenon that Rinear and reform opponents take for granted.  Way back in the late 90’s, Sanford Braver studied the matter in depth and detail and found that what fathers wanted above all was meaningful time with their kids.  They were happy to pay support if only they could maintain that.  But here it is 20 years later and we’re still fighting the same fight.

The changes in Ohio are welcome, but they’re far from sufficient to treat non-custodial parents

November 6, 2019 by Lori Grover, NCM,  Chair of Rhode Island NPO and Divorce Mediator

When I made the decision to get divorced, I was determined to separate the problems I had with my husband from the co-parenting relationship our daughter needed us to have. But within the legal system, the well-being of our daughter was never a concern. This discovery led me to become a mediator, open the only practice dedicated exclusively to divorce mediation in the state of Rhode Island, and to now start a chapter of the National Parents Organization in that state, one of only two states to get an “F” in the Shared Parenting Report Card. 

During our divorce, my husband and I had numerous conversations with our attorneys about dividing our assets, but neither of them ever asked about our daughter or our plan for co-parenting; It was assumed that I would have placement and my husband would have visitation. When I asked about our daughter having more time with her father, my lawyer told me whatever time they had together in addition to the Court order was at my discretion. This was the last straw, and it’s when I convinced my husband that it was in all of our best interests for us to take control of our divorce. 

My divorce experience and the one-size-fits-all adversarial nature of the legal system is why I became a lawyer and then a mediator. I saw how divisive and financially focused the system can be, setting up both parents and children for failure. Over the past thirteen years, I have worked hard to reorient the way parents approach divorce. In my mediation practice, how a couple divides material possessions is second to building the foundation for a respectful co-parenting partnership after divorce. This approach has changed the minds of many parents and benefited many children over the years.  

Restrictive visitation schedules also do not align with the dynamics of today’s families nor do they represent the level of responsibility many fathers have in raising their children. But the outdated parenting beliefs still held by many legal professionals limit a child’s access to one parent after divorce. This creates an unnatural separation, minimizing the role both parents play in a child’s development. 

As a mediator who has worked with over one thousand couples, I have seen quite a few high conflict divorces. I never questioned the love those parents had for their children, but I have seen divisiveness over time-sharing schedules. This divisiveness can be overcome with education, support, and eliminating the biases and stereotypes that prevent divorcing parents from transitioning their relationship as a couple to co-parenting partners.

It is so important for parents to see their divorce through their children’s eyes and recognize that new schedules, new routines and new homes are just a few of the adjustments children will make. Although children adapt to divorce and the new ‘normal’ of their lives, adaptation does not mean they thrive. But children do not ride the rollercoaster of divorce alone. Parents must also make difficult emotional adjustments. The feelings of loss associated with not reading a bedtime story, helping with homework or having dinner together can be powerful. As hard as it is for parents to make this adjustment it’s important to help parents understand that feelings of grief and loss are amplified in children who often lack the maturity and intellect to understand and manage such powerful feelings and emotions.  

There is a lot of work to be done to help families separate and restructure in a healthy way. In Rhode Island couples are not encouraged to use mediation, and to some degree the process is resented and frowned upon by attorneys. On the bright side, the number of couples choosing mediation instead of attorneys continues to rise since I opened my practice in 2006. My passion for helping families of divorce prompted me to write my forthcoming book Separate Homes, Connected Lives, which helps parents understand their feelings, and provides a blueprint for creating healthy sustainable co-parenting plans and child-centered co-parenting relationships that help children thrive after divorce. I am honored to bring the National Parents Organization to Rhode Island as one more part of my mission to educate parents and advocate for much needed legal changes that will make divorce easier and less traumatic for children and parents. It is time to stop fighting over our children and start fighting for them. 

Lori A. Grover is a Nationally Certified Divorce Mediator in private practice in Rhode Island.   

November 5, 2019 by Robert Franklin, JD, Member, National Board of Directors

In the U.S., it’s still the case that a man who’s not a child’s father can be made to pay child support for that child.  Yes, genetic testing is common, but its use sometimes fails to connect fathers and children.  Two recent cases remake the same point we’ve seen made countless times.

In the first, a Florida man signed the child’s birth certificate in the honest belief that he was the father (NBC Miami, 10/20/19).

Joseph Sinawa told NBC affiliate WTLV-TV that he signed the birth certificate because he did truly believe he was the father…

That of course means that Mom mislead him about the facts of the child’s paternity, a matter that goes unmentioned by the article.  The woman knew that she’d had sex with Sinawa and another man at or near the time of conception.  But she didn’t tell Sinawa about the other man and apparently either didn’t tell the actual father about the child at all or told him it was Sinawa’s.

Exactly how Sinawa came to believe that the child isn’t his remains a mystery, but at some point, he took a DNA test that demonstrated his non-paternity.  But, under orders from the state, he’s still paying.  Why?  Because the state’s child support enforcement officials refuse to do the obvious and right thing.

Sinawa found out he was not the father after the DNA test was administered by a St. Johns County court following a custody question – but the state’s Department of Revenue appealed the decision because they say Sinawa has not properly attempted to disestablish paternity.

Sinawa’s not a lawyer and he doesn’t have the money to hire one, so he’s probably a bit confused about what he needs to do to satisfy the Department of Revenue.  While he struggles to dot all the i’s and cross all the t’s, he still has to pay.

But of course nothing prevents the DoR’s lawyers from simply acknowledging the fact that Sinawa’s not the father, dismissing the case against him and getting an order of support from the man who is.  It’s something they should have done the day after they received the test results.  Instead, they’ve chosen to make life hard on a man who owes nothing.

The second case comes to us from Pennsylvania (Altoona Mirror, 10/27/19).  It involves the curious legal doctrine of “paternity by estoppel,” that might better be called the doctrine of “no good deed goes unpunished.”

Basically, estoppel means that, if a person engages in a course of conduct, that person may not later reject the legal implications of that course of conduct.  In this case, the unnamed man acted as the child’s father, knowing full well that he wasn’t and the court ruled that he could not later disavow paternity.

The man met the mother some 12 years ago when the child was an infant.  Although the pair never married, he stepped into the role of father, cared for the child, supported her, told people he was her father, etc.  But then Mom decided she wanted nothing more to do with the man – except receiving his child support – and walked away from their relationship.  The man refused to pay support, but she went to court and got an order requiring him to do so.

The doctrine of estoppel in this case is aimed at keeping intact father-child relationships that have been established and whose destruction would be detrimental to the child’s well-being.  That’s a laudable-enough goal, but, as the case makes abundantly clear, one that the law is entirely incapable of achieving.

In the first place, the law that attempts to require a non-father to continue acting as if he were a father also allows a mother to divorce or separate from that non-father.  So, to the extent that separation removed this father from the child’s life, the law is perfectly content with the trauma to the child inspired by that separation.  Fathers typically receive court orders for every-other-weekend visitation plus a couple of hours one night per week.  That hardly bespeaks a policy on the part of the state of keeping fathers actively involved in children’s lives.  In short, there’s a double standard at work here.

Second,

The man rarely saw the child after separation, and at one point, he walked by her without acknowledgement.

Stated another way, if a man doesn’t want to be involved in a child’s life, there’s nothing a state can do to make him.  And of course that’s not the point of paternity by estoppel.  The point is not paternal involvement, the point is money.  The point is a transfer of funds from a man to a mom.  Period.

But, if you now consider the doctrine to be odd, just wait.  You haven’t seen anything yet.

The Superior Court opinion written by Judge Victor P. Stabile explained that the doctrine relies on a public policy concern that “children should be secure in knowing who their parents are.”

“If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told the father (she) had known all her life is not in fact (her) father,” the Superior Court stated.

But the doctrine does no such thing, indeed, it may even do the opposite.  We don’t know from the article if the child knew her actual father or not.  Whatever the case, he played no part in her life.  Did he even know about her?  There’s no legal obligation on the mother’s part to tell him.  How does that square with Pennsylvania’s passionate desire that children know who their parents are?  It doesn’t.

And how was this child shielded from “the potentially damaging trauma that may come from being told the father (she) had known all her life is not in fact (her) father?”  Needless to say, she wasn’t.  She knows that the man who’d cared for her all those years isn’t her father.  That’s what the legal case has been about. 

Therefore, the Superior Court is at cross purposes with itself.  On one hand, it wants the child to “be secure in knowing who [her] parents are.”  That would mean introducing her to her actual father, whoever he may be.  On the other, it wants to prevent her from undergoing the trauma of being told that the man she’d always considered her father in fact is no such thing.

The court can’t have it both ways.

What it could do of course is place the onus of paternity on the man who is, you know, the father.  Would that avoid all possible pain to a child?  No, but no other law would accomplish that feat either.  What it would do however is to place the requirement of supporting a child on the man who helped create it.  It would also prevent the rank injustice of a forcing a man to pay for a child who’s not his.  In short, it would make sense and do justice.  Imagine that.

  

November 1, 2019 by Robert Franklin, JD, Member, National Board of Directors

The State of Texas is up to its old tricks again (Dallas Morning News, 10/23/19).  That is, it’s stonewalling a federal judge who’s ordered it to make extensive reforms to its child protective system.  Four years ago, Judge Janis Jack found that Texas Child Protective Services routinely violated the civil rights of the children in its care.

That finding plus an earlier audit that found stratospheric levels of caseworker turnover and individual horror stories of children dying in foster care while caseworkers struggled with caseloads up to five times industry standards finally embarrassed lawmakers into making long-needed change. 

Specifically, the State of Texas spent money.  I know that’s hard to believe, but the state raised average caseworker salaries by $12,000 per year, no small sum.  That was in an effort to keep enough of them on the job to actually protect kids.  No word yet on how that’s working, but I suspect it’s having an effect.

Still, according to a Motion for Contempt filed by plaintiffs in the federal lawsuit, the state is resisting other important changes ordered by Jack.

Plaintiffs in a long-running legal battle over Texas foster care have asked a federal judge to hold the state in contempt of court, citing in a motion many “false statements” about nighttime watches of kids and a recent blown deadline for crafting a workload study.

The Department of Family and Protective Services has been “utterly contemptuous” of U.S. District Judge Janis Graham Jack’s orders, plaintiffs’ lawyers said in a motion filed Friday.

The motion asks the department, Gov. Greg Abbott and Health and Human Services chief Courtney Phillips to show cause for why Jack shouldn’t sanction them for the agency’s alleged stonewalling of her five-year quest to ensure that foster children in group settings are supervised by adults who remain awake all night.

Also at issue is the department’s alleged failure to meet the judge’s Sept. 28 deadline for proposing guidelines for a workload study that will be used to help determine how many youngsters a Child Protective Services conservatorship caseworker should supervise.

So, even four years after Jack’s order, the Lone Star State can’t even describe appropriate guidelines for caseworker caseloads.  Amazing, but true.  Equally so is the fact that the agency can’t manage to hire enough help to ensure that kids in group homes have adult supervision at night.

The agency has apparently been so recalcitrant that the plaintiffs are demanding over $22 million in attorneys’ fees for their efforts to enforce the years-old order.  To their credit, those attorneys are working pro bono and, if the fees are awarded by Jack, intend to ask her to direct the money to special programs for children in foster care.

Meanwhile, the state has already spent $10 million fighting the lawsuit and budgeted $10 million more.  Judge Jack appointed two special masters to oversee Texas’ implementation of her order.  If the state’s efforts in that direction are any indication, it looks like the pair will hold that job for a long time to come.

As I’ve said in the past, this was always going to happen.  When the federal government starts telling the State of Texas how to run its business, even when it violates federal law, the fur is bound to fly.  I’m sure Governor Greg Abbott remembers the Alamo and figures he’s manning the barricades of freedom.  But whatever the case, federal-state conflict is far from unknown in Texas.  Back in the 1970s, another federal judge took over the operation of the Texas Department of Corrections, i.e. its prison system.  The state fought him to a draw.  Now of course the victims of state malfeasance aren’t felons, but children.  Abbott, et al, might want to consider the difference.

On a somewhat more optimistic note, Texas has gone out of state to hire a new commissioner to run the Department of Family and Protective Services (Austin Statesman, 10/9/19).  Whether Jaime Masters, who has extensive experience in child protection in Kansas City, will be able to right this ship is anyone’s guess.  But at least she’s not more of the same, i.e. a product of the Texas system and beholden to it.

State officials fiddle while children suffer.  Hey, it’s a Texas tradition.  This isn’t the last we’ll hear of it.

October 31, 2019 by Robert Franklin, JD, Member, National Board of Directors

Governor Gavin Newsom vetoed one bill that would have sent more child support to children and another that would have reduced the interest burden on child support arrears (ABC10, 10/16/19).  I first wrote about those bills here, shortly after they’d passed the state legislature.

In the Golden State, if a custodial parent receives welfare benefits like Temporary Assistance for Needy Families, and the non-custodial parent pays child support, the custodial parent only receives $50 of the child support.  The rest goes to the state to reimburse it for its expenditure of welfare benefits.  Last time I mentioned the case of Ronnell Hampton.

When he was growing up, Ronnell Hampton’s father wrote a check every month for $600 for child support.  But because Hampton and his mother lived in California, they only ever saw $50 of that per month.

Now, if you’re poor enough to need TANF benefits, you’re probably poor enough to need all that child support.  Indeed, as I said in my previous piece on the two bills,

To add a bit of perspective, on average nationwide, families of three who received benefits under the Temporary Aid to Needy Families (TANF) program, received about $486 per month (Center on Budget and Policy Priorities, 8/21/19).  Of course that would have been higher in California, since the Golden State also has among the highest costs of living in the country.  Whatever the exact figure received by Hampton’s family in TANF benefits, the taking of all child support except $50 per month effectively capped earnings at the amount of those benefits plus $50.  That was true regardless of the amount his father paid.  The official poverty level for that family of three is a little under $1,800 per month.  In California, of course, it’s higher.

So if Hampton’s mother received the national average of $486 per month in TANF benefits, her total take with child support would have been just $536 instead of almost $1,100 if she’d received all the child support Dad paid.  That’s less than one-third of the national poverty rate for a family of three that’s significantly higher in California.

The bill Newsom vetoed would have only raised the amount received by the custodial parent to $100 from $50, but even that pinch-penny amount proved too much for the governor.  Last time I pointed out that revenue streams into the state treasury looked to be the issue with the bill.  In its original form, children with parents on welfare would have received all the money their NC parents paid, but that was scaled back to just $100.

The first [bill] would direct the first $100 – instead of the first $50 – of each child support payment to the child’s family and still reserve the rest to the state.  In other words, the California Legislature still prefers revenue for the state’s general fund over money for kids.

The original bill would have sent all support payments to the children for whom they were intended, but lawmakers eyed the money brought into state coffers from non-custodial parents and capped the amount at just $100.

And that issue – money for the state – proved to be exactly what was most important to Newsom.

The proposal to “pass through” more child support money to families, SB337, would “lead to an estimated revenue loss of millions of dollars outside the budget process,” the governor wrote in announcing the vetoes.

The other bill, AB1092, which would have eliminated interest on child support payments, Newsom wrote, would “have a General Fund impact of tens of millions of dollars annually, thus it should be considered as part of the budget process.”

That other bill would have eliminated interest charged by the state on child support arrears.  California is one of the few states that charges double-figure interest – 10% – to NC parents who fall behind on their payments.

The overwhelming majority of parents behind on their child support payments are poor – extremely so.  Over 60% of those parents report earnings of under $10,000 per year.  Now, the junkiest of junk bonds don’t pay 10%, but somehow Gavin Newsom believes that parents who earn less than $10k per year can shell out interest that major corporations and municipalities wouldn’t dream of paying.

The reality of course is that poor fathers have no clout in Sacramento and there may still be votes to be had by appearing to “get tough” on parents who don’t pay.  But the further reality is that, sky-high arrears brought about in part by sky-high interest rates discourage payment.  The Office of Child Support Enforcement has said so more than once, but in California, something more pressing is at stake – money, not for kids, but for the legislature.

It’s something to remember the next time a politician hymns his/her concern for children.

Gavin Newsom had two opportunities to get more money to children whose parents are desperately poor.  He refused.