Braver and Ellman: Everyday People Disagree with Child Support Laws, Guidelines

June 8, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In the United States and the United Kingdom, everyday people have significantly different views on child support from what is reflected in the laws governing its establishment and enforcement. That is one salient finding of a new study conducted by Arizona State University professors Sanford Braver (emeritus) and Ira Ellman. The views of everyday people are better informed, more child-centered and more realistic than are those of the laws. That is my view of Braver and Ellman’s findings.

Here is an article by the two summarizing their findings (Child and Family Blog). Scroll down to the bottom of the article and click on No. 1 under Original Research and References for the whole study. In the study, the authors describe the study’s background.

In this paper we shift our focus to three child support rules, nearly universal across the states, which carry forward policies from the pre-guideline era. Because these rules are now part of every state’s guidelines, they bind judges setting support amounts more effectively than they did in the pre-guideline era when departures from them could have hidden within the exercise of trial judge discretion. Each of the three rules establishes that a particular fact does not matter in setting support amounts: 1) the remarriage of the primary custodian; 2) the income of the primary custodial parent’s new spouse; and 3) the primary custodian’s relocation, with the child, to a distant location that makes it difficult or impossible for the other parent to maintain regular contact with the child.

The “pre-guideline era” refers to the time prior to federal laws mandating state child support guidelines that were passed in the 1980s. Three principles underpin those guidelines:

1) Parents are responsible for their child’s support; 2) No one else is responsible for the child’s support; and 3) The parental support obligation is unconditional–it always accompanies parental status, and does not depend on any other facts to justify it.

In their study, Braver and Ellman sought to establish the level of popular support for those concepts. So, for example, if a custodial parent remarries, should the income of the child’s new stepparent cause a reduction in support paid by the non-custodial parent? Should a custodial parent who moves far away from a non-custodial parent lose some child support due to the reduction in time the other parent can see the child and the increased travel costs involved in doing so?

These principles all assume a binary concept of the parental support obligation: either you are a parent with full responsibility for the child’s support, or a nonparent with no responsibility. There is no in-between status. There was little occasion to challenge this binary vision when divorce rates were low and blended families uncommon, but today it may often seem oddly disconnected from the realities of family life. The prevalence of divorce followed by remarriage is now too high to ignore the issues such living arrangements create, and most people probably have friends or relatives who are part of such “blended families” even if they have not themselves been part of one. Divorce and remarriage are also common occasions for moving. More than one-half of those who were separated from their spouse moved between 2005 and 2010; in 2005, 23% of all those who told the Census Bureau they had move in the past five years had moved from a different state. The population’s increased familiarity with the day to day realities of managing blended families could affect the social consensus about the appropriateness of the binary vision. Social mores are much more pervasive than the law in regulating the conduct of family members toward one another, and legal rules that are in tension with social mores may not be durable.

So the question arises, “is there a social consensus that supports existing child support laws or is there a consensus that differs from those laws and practices?”

The answer is that We the People have markedly different ideas about how child support should be awarded and modified than do the laws, guidelines and practices of family courts.

Braver and Ellman asked randomly selected people to play judge and decide child support levels in a series of hypothetical cases “with systematically varying facts.” Among other things, the researchers found that people believe that the custodial parent’s income “should matter” in deciding the child support level for the non-custodial parent. That attitude is reflected in the law on child support in all but eight American states, but not in the U.K. where the custodial parent’s income is ignored completely.

American respondents believed fathers should pay the same percentage of their income in child support whether their income was low or high, but believed that the percentage should be higher when the mother’s income was lower. That pattern departs from the law in most American states, which generally requires low-income dads to pay a higher percentage of their income for support than it requires of high-income dads. The UK public would require high-income dads to pay a higher percentage of their income in support, while the UK law generally applies the same percentage to high and low income dads.

As to a custodial parent’s remarriage, the opinions of the study’s respondents deviated sharply from current law.

We found the public would require lower support payments when the mother remarried, especially if her new husband earned more than the father, although they certainly would continue requiring the father to pay something. This contrasts with the dominant American rule that does not allow any consideration of a stepfather’s income in setting the father’s support obligation. Results from the UK were similar.

This of course is nothing but common sense. The fact is that the addition of a stepparent to a household likely means additional revenue for that household. That additional money benefits everyone in the household including, of course, the child who’s the beneficiary of a support order. We say that child support is for the child. If it is, it doesn’t need to go up and up much beyond what’s required to meet the child’s needs. Of course if the remarried custodial parent divorces the stepparent, the non-custodial parent’s support obligation should increase to reflect the change in circumstances.

This latest study is one of several conducted by Braver, Ellman and others over 15 years. In addition to child support, they studied the public’s attitudes toward alimony, division of marital assets, parenting time and marital fault.

The parenting time studies suggest the public, both men and women, prefer equal parenting time (or equally “shared parenting”), and that it is difficult to push them from that allocation, even in cases in which judges and custody evaluators would be likely to believe that shared parenting is not appropriate.

In short, political elites in state legislatures and the federal bureaucracy, and legal elites in the form of judges and family lawyers hold strikingly differing views about a whole range of family-related legal issues from those of the public at large. To put it mildly, everyday people seem to have a much firmer grasp on the realities of things like child support, shared parenting, marital fault and many others than do those who make and enforce the laws on those issues. Braver and Ellman agree.

It would appear that family law has not moved as rapidly as has the public on family issues and that the public is more focused on child welfare. We believe the public’s views reflect sound values, and that the law should be revised to align more closely with them.

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