Author: Super User

Fox News published an op-ed by NPO’s Don Hubin, Ph.D. about the results of our updated Shared Parenting Report Card:

A study just published by the National Parents Organization reveals that most states have a long way to go to improve the lives of children whose parents are living apart. The good news is that there is a path to that goal—a goal that everyone shares—that is widely agreed on and … it’s free!

National Parents Organization researchers evaluated the statutes of all 50 states and the District of Columbia to determine the degree to which those laws promote the well-being of children by encouraging separated parents to share as equally as possible in rearing their children. NPO then graded the states’ statutes based on 21 factors that encourage or discourage shared parenting.

The 2019 NPO Shared Parenting Report Card contains some good news but, overall, the news is depressing. The average grade for all of the states is a disappointing ‘C-’.

More than a quarter-century of high-quality research shows that children of divorced and separated parents do best when both parents share parental responsibilities roughly equally—when children do not suddenly find themselves with one overburdened parent and one “every other weekend visitor.” In light of this research, state legislatures should be doing everything they can to encourage this equal co-parenting. It should be the presumed post-separation parenting arrangement.

Read the rest at Fox News.

September 16, 2019 by Robert Franklin, JD, Member, National Board of Directors

The unbelievable just got more so, if that’s possible.

I wrote about the Ryan West case here and here.  It’s one of the most remarkable travesties of justice I’ve seen in a long while.  I won’t reprise all the facts here.  Read my two previous posts for a sense of just what can happen when judges decide how they want to rule and then go about finding facts and imagining law to fit their preconceived notions.

Ryan West has a daughter, Alanna, with his previous wife.  The two divorced.  Ryan earns a good living and is the best of fathers; his ex is voluntarily underemployed and spends little time with Alanna.  The judge who granted their divorce gave Ryan parenting time of between 70% and 80%.  In short, Alanna lives with him and his girlfriend Kym. 

But, despite his being the custodial father, the judge ordered him to pay child support to the non-custodial mother.  Seriously, that’s what she did.  That was based solely on Ryan’s income and ignored the fact that his ex testified under oath that she was capable of earning $80,000 per year, but didn’t because she preferred to spend more time with her daughter.  That is, she admitted to being intentionally underemployed. Under normal circumstances, a court would impute to her $80,000 annually and calculate child support accordingly.  But the judge ignored his ex’s earning ability.

That meant she ordered Ryan to pay over $1,300 in child support, despite being the custodial parent and caring for Alanna about three-fourths of the time. 

In Texas, where all this is taking place, the child protective agency pays foster parents about $680 per month to care for a single child.  Obviously, the state believes that to be sufficient to meet a child’s needs, assuming he/she has no special ones.  Now, let’s assume that that $680 is borne proportionately by each parent based on the parenting time of each.  Based on 75% parenting time, that would mean Ryan would incur $510 of Alanna’s expenses and his ex $170.  Under the judge’s order then, Ryan incurs those expenses plus paying his ex $1,300 per month for a total outlay of $1,810.  He also pays $100 for her health insurance, or $1,910 in all. 

By contrast, his ex incurs $170 in expenses but takes in $1,300 for a net gain of $1,130.  By the way, she doesn’t need the money.  Her new husband earns $13,000 per month, a fact that’s in evidence in the case.

Sound fair?  Sound reasonable?

Now comes the even more unbelievable part.  In an opinion that looks very much like “sentence first, trial later,” an appellate court has ruled that everything the trial court did was proper.  It affirmed every part of the judge’s order.

It did so despite the fact that the judge in part simply made up law.  It did so despite the fact that the trial court ignored evidence.  It did so despite the fact that the lawyer for Ryan’s ex filed no brief with the Court of Appeals.  In short, Judge Bill Whitehill seems to have been acting as the attorney for Mom.

How does Whitehill get around the fact that West is clearly the custodial parent and is therefore owed child support by his ex? 

[T]he possession order gives Mother possession of Daughter for roughly seven or more days a month during the school year and thirty days during the summer, plus certain holidays. Both parents are “custodial parents” to a degree.

That of course is true of every case in which one parent has the child in his/her care as much as one day per year.  After all, who’s to say that doesn’t constitute “custody” of a sort.  Well, decades of case law for one, but Whitehill cited no case law for his remarkable claim.

What about the fact that the trial court refused to impute income to Mom even though she admitted under oath to being voluntarily underemployed?  Simple, since she’s not the “non-custodial” parent (see above), imputation of income is unnecessary. QED.

As of now, this case, having been issued by a state appellate court, has value as precedent.  That is, other courts may now cite it as authority in future rulings.  Imagine what those rulings might look like.  Mom has little Andy or Jenny 90% of the time.  Dad is truly a deadbeat; he has minimal or no earnings.  Mom has a good job.  Result?  Mom pays Dad about 20% of her net earnings, exactly as West does. 

Make sense?  No, but count on the fact that plenty of lawyers will cite this case for exactly the proposition above.  Meanwhile, whatever happened to the idea that child support was for the child?  Plainly, it’s not in this case as both parents have enough money to provide adequately for her.

West intends to seek a rehearing and, failing that, appeal to the Texas Supreme Court.  His lawyer has gotten numerous calls from lawyers in the Dallas area concerned about the effect of the ruling on precedent.  Some of them intend to file amicus briefs in support of the motion for rehearing. 

I’ll keep you posted on what develops.

September 13, 2019 by Robert Franklin, JD, Member, National Board of Directors

The federal government spends 10 times the money on foster care and adoption as it does on family reunification.  Plus, it allows states to divert money from Temporary Assistance for Needy Families (TANF) to pay for foster care and promote adoption.  The latter tends to make poor families poorer and therefore enhances the possibility of child neglect, which in turn leads to a greater need for foster care.  It also tends to break up poor families.

Those are the main takeaways from this fine article (Talk Poverty, 8/23/19).  The writer, Elizabeth Brico, quotes extensively from Richard Wexler who is perhaps this country’s best-informed commentator on our foster care and adoption system. 

The United States government incentivizes foster care placements and forced adoption over social support and reunification with birth families. 

When we offer people money if they take action A, we can’t be surprised when they tend to take action A.  During the Clinton Administration, Congress passed and the president signed the Adoption and Safe Families Act.  It offered states hefty financial incentives to take kids into foster care and to have them adopted out of foster care.  Unsurprisingly, states reported doing exactly that.  Rates of taking children from parents shot up.

Adoption bounties range from $4,000 to $12,000 per child. As Wexler explained, “the harder the system deems the child to place, the higher the bounty.”

Those higher “bounties” are paid for children states deem to have “special needs.”  As one example of how “special needs” is “defined,” the State of North Dakota denominated every native American child within its borders as one.  That of course increased the flow of money to the state and the flow of native children into foster care and adoption, all too often by non-native parents, contradicting another federal policy aimed at placing native children with native parents.

There is no upper limit to the amount of funding that can be provided for eligible foster children each year. States receive reimbursements ranging from 50 cents to approximately 76 cents for each dollar spent on daily child care and supervision, administrative costs, training, recruitment, and data collection.

But when it comes to programs that support family reunification, the budget slims. Title IV-B of the Social Security Act, which governs federal reunification funding, includes a capped entitlement component and a discretionary component. So, unlike foster care funding, these dollars come with a set limit.

And that limited money isn’t all for reunification services. Title IV-B also includes provisions that allow for some of this funding to go toward foster care programs. A portion is also required to go toward adoption promotion.

The result of this imbalanced funding structure? The federal government spends almost 10 times more on foster care and adoption than on programs geared toward reunification.

The extreme imbalance between funds earmarked for family dissolution and those for family maintenance is reminiscent of Uncle Sam’s approach to child support and visitation.  There it spends $5 billion per year to enforce payment of child support that even the former Commissioner of the Office of Child Support Enforcement has said tends to drive fathers out of families, but only $10 million per year to enforce the visitation rights of non-custodial parents.  That would be a 500:1 ratio if all that $10 million were spent on visitation, but it isn’t.  Much of it bleeds over into “responsible fatherhood” programs whose main aim is – you guessed it – paying child support.

But regarding adoption, it gets worse.

But in order to begin collecting that money, a state must exceed the last year’s number of adopted children, thus incentivizing states to permanently re-home an ever-increasing number of children each year. As can be expected, the number of adoptions increased in the five years after the implementation of ASFA, while reunifications declined.

Then there’s TANF.

One of the less-known sources of federal funding for child welfare programs is the Temporary Assistance for Needy Families (TANF) program. TANF is supposed to be a cash-assistance program servicing low-income families with children. In reality, TANF funds can be used to support many services designed to help “needy” children, including child protection agencies. The result is that many states use TANF funds to finance foster care, child welfare investigations, and adoption or guardianship payments…

Considering that three-quarters of substantiated child maltreatment cases are related to neglect, which is often the result of poverty, it seems exceedingly unjust that funds supposedly intended to offset the worst effects of poverty are instead being used to finance the separation of mostly poor families.

Indeed.

Sometime far in the future, people may look back on these times and shake their heads in wonderment at the many ways in which our governments go about damaging families.  They’ll look at all the information showing that families are the bedrock institution of every healthy society.  And they’ll see the many voices arguing for sanity in public policy regarding families and children.  And they’ll wonder how we could have allowed things to go so wrong.

Thanks to Elizabeth Brico for being one of those voices.

September 12, 2019 by Robert Franklin, JD, Member, National Board of Directors

If you want to know just a few of the ways in which our system of divorce doesn’t make sense, read this article (Business Insider, 8/19/19).  In it, Dave Johnson recounts the “8 things I wish I knew (sic) before I got divorced.”  Now, this being a business publication, those eight things are strictly a matter of Johnson’s finances, so of course there are many more pitfalls of divorce that he doesn’t deal with.

From his style of writing, Johnson seems like a nice guy, perhaps too nice.  He seems slightly miffed about things many find all but intolerable, for example, spousal support.

Let me be perfectly clear: I am not complaining about having to pay spousal support. For 30 years, I was either the sole or principal breadwinner in our household, and consequently, my wife never needed to pursue a career. Now that she does need to pay all her bills, I need to help out.

Johnson isn’t complaining, but a lot of men would be.  About 97% of spousal support obligors are men according to the U.S. Census Bureau.  Johnson spent 30 years as the sole or almost-sole support of his wife.  Now he gets to continue doing the same, probably until the day he dies, but without any of the non-financial help she provided when they were married.  To be a bit clearer on what that means, Johnson adds this:

It turns out that the judgment is a lot of money, relatively speaking — about 20% of the take-home pay I was earning at the time of the divorce. As someone who probably doesn’t think hard enough about budgets, saving, investment, and retirement, it only became apparent to me when I started writing those checks after the divorce that this money accounts for virtually all of my disposable income.

In short, from here on out, Johnson will be able to add nothing to his savings, whatever they are.  That means he won’t be able to retire – ever.  He’ll likely work until the day he dies because if he doesn’t, he risks being held in contempt of court.  His “golden years” are beginning to look like lead.

How old is Johnson?  That’s not clear, but he says he married his ex just out of college and stayed married to her for 30 years.  That probably means he was about 55 or 57 when they divorced.  So he’s looking at about 20 – 25 years of paying her every month.  Assuming his ex is his age (they seem to have met in college), you’d think she should be required to train herself for paid employment and go to work, but if she has any such plans, Johnson doesn’t mention them.  But whatever their plans, there’s no requirement that an alimony recipient do what she/he can to earn and reduce the obligation on their ex.

Another financial blow to Johnson came with the division of his marital estate.  He tells us that they were far from wealthy, but their house was sold and the proceeds split in half.  The same was true of his 401(k) account.  Again, his ex contributed either little or nothing to either their home equity or his retirement account, but she still got half, plus of course a generous hunk of his monthly pay.

The point being that the law discourages him from marrying in the first place.  Who wants to work for 30 years just to lose half of everything he’s accrued?  And the law encourages her to divorce.  After all, if she’s stopped wanting to live with the guy, why not leave?  The financial downside to her is modest if there’s one at all.

Spousal support is an artifact of days gone by and should be mostly scrapped.  There was a time when women not only weren’t expected to work for wages, but that divorce was uncommon.  So a woman who didn’t work and earn could be reasonably certain that she’d remain married and therefore supported.  If she did divorce, it was at least defensible for the law to require that her ex-husband continue to support her, at least for a while.

But times have changed and the law should too.  No one is required to work but the law should acknowledge that adults need to take responsibility for themselves and their own well-being.  Neither men nor women should assume that a partner will take care of them forever.  For one thing, doing so courts disaster.  What if the one on whom you rely dies or becomes disabled?  Wouldn’t it be better to have prepared yourself for that eventuality?

Generally speaking, we should expect that adults behave like adults and take responsibility for their own upkeep, at the very least.  That means that the rule should be that no one owes alimony to anyone else.

There should be exceptions to that rule.  If one spouse is very old or disabled, we can’t realistically expect her/him to train for and go to work.  And if one person has stayed home to care for kids for a significant period of time, the other should pay support long enough for retraining to enter the workforce.

Fairness and justice require that our no-fault divorce system doesn’t remain an all-expenses-paid ride to the end of life.  The very concept of gender equality rejects our current system that’s based on the long-dead premise that women are unable to work and support themselves.