Child Support Reform Needed

July 20, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Slowly but surely, we’re seeing good sense brought into the public discourse on a lot of family law-related issues. The issue of shared parenting is almost always considered favorably in the news media these days. That’s a sea change from just a few years ago when the most bizarre claims against it were made. The same is true of adoption, paternity fraud, child abduction, alimony and other matters. Of course elites in elective office, family lawyers and feminist organizations still oppose what everyone else knows to be right, just and good for kids.

What’s true of shared parenting and the rest is even starting to be seen regarding the hot-button issue of child support. The truth about child support is that it’s a system that is so flawed in so many ways, many observers think scrapping it and starting over is the only way to make the support of children of divorce sensible and effective.

Support levels are set too high, state guidelines don’t reflect the cost of raising children, enforcement mechanisms are arbitrary, punitive, costly and don’t work, enforcement disproportionately affects the poor, modifications are too hard to get, custodial parents get legal help from the state while non-custodial ones have to go it alone, non-custodial parents are demonized, maternal gatekeeping is given a pass, visitation orders routinely go unenforced, interest rates on child support debt are stratospherically high, etc.

Most of that is due to a few basic false assumptions about fathers and child support on which the whole jerry-rigged edifice is built. Back in the 80s, state legislatures assumed that fathers had no interest in the children, children didn’t need their fathers and fathers would do anything they could to avoid responsibility to their kids. They also assumed that mothers’ standard of living dropped by about 76% post-divorce.

Therefore, based on those entirely wrong assumptions, states passed laws that bore no resemblance to the reality of children’s needs and fathers’ desires. Those laws all but mandated courts to set orders too high and to enforce them in the most punitive, draconian ways. They also encouraged judges to believe that visitation orders weren’t worth enforcing since according to the zeitgeist, dads didn’t care about their kids anyway.

Lost in the lynch-mob atmosphere were the basic facts of the matter. Fathers do care about their children and want to see them as much as possible. Much of the reason they don’t is down to mothers’ gatekeeping and downright obstructionism. When mothers don’t permit dads to see their kids, dads are discouraged from paying what they owe. And of course interest rates on indebtedness that have run as high as 12% per annum don’t help and indeed do the opposite.

For decades, the narrative of the deadbeat dad was taken as gospel. That’s no longer true as gradually the truth ekes out. Here’s an excellent article that’s part of the trend (Pacific Standard, 7/18/16). The writer, Dwyer Gunn, has mostly done her homework. She grasps many of the problems and seems to understand that the system is broken and needs fixing.

It’s poor fathers, usually those of color, who bear the brunt of the system’s injustices and false assumptions.

Though non-custodial parents across the income spectrum pay child support, it’s the low-income parents who often struggle with high monthly orders. In fiscal year 2015, parents owed over $115 billion worth of child support debt in total. The majority of the debt is owed by low-income parents with grim employment prospects and low levels of education, many of whom also have criminal records. A 2007 study conducted by the Urban Institute on child support arrears in nine states found that 70 percent of debt is owed by parents earning less than $10,000 a year. The debts are often economically crippling to low-income parents, many of whom face the loss of their driver’s or professional license, black marks on their credit scores, and imprisonment should they fail to make payments.

What’s more, the evidence increasingly suggests that large child support debts actually discourage parents from participation in the formal labor market, where they’ll be subject to sometimes unreasonable levels of wage garnishment. A 2013 paper in the Journal of Policy Analysis and Management by Maria Cancian, Carolyn J. Heinrich, and Yiyoon Chung studied how large child support debt balances affected the employment and child support payment patterns of fathers. They found that higher debt burdens significantly reduced formal earnings and child support payments. “Fathers think to themselves ‘I’ll just go underground because I’ll never pay that in my lifetime,’” says Heinrich, a professor at the University of Texas–Austin. “They can’t buy a car, they can’t work in the formal system, it just sets up some really bad incentives.”

Good point. Orders set too high, plus sky-high interest rates are all about punishing fathers who are assumed to be deficient and have little to do with supporting children. So poor dads vote with their feet, staying out of the formal economy to the extent they can. As with so much about the child support system, that benefits no one, least of all the child.

No serious person believes that $115 billion debt will ever be paid or even a significant share of it. Therefore, reasonable programs of debt forgiveness make sense. To its credit, the federal Office of Child Support Enforcement has given states the power to experiment with doing so.

In recent years, a number of states have begun experimenting with child support debt forgiveness or compromise programs. According to a 2007 report from the Office of the Inspector General, 20 states operate either fully implemented or pilot debt compromise programs; 23 other states settle arrears on an informal, case-by-case basis. Only eight states explicitly prohibit debt compromise for child support arrearages. The programs vary dramatically in terms of their generosity and structure. By and large, however, the limited evidence suggests that well-designed child support debt compromise programs can successfully reduce participants’ debt and increase their future child support payments.

Those programs differ vastly from the so-called “Responsible Fatherhood” programs about which I wrote here, here and here earlier this year. As I said there, RF programs first, last and always treat fathers as walking wallets. Their main goals are to find low-income fathers employment so they’ll pay what they owe. There’s nothing wrong with that of course as long as there’s more.

We need to move away from the assumption, communicated daily to fathers that their only worth is to be found in their bank accounts. As long as that’s the message conveyed to dads, we can’t seriously complain when that’s how they see themselves. If we truly want fathers involved in children’s lives, we’ll start showing them the respect they’re due instead of dismissing them as nothing but sources of cash and impediment’s to mothers.

Fortunately, the programs to which Gunn refers are different.

[A] comprehensive review of debt forgiveness and compromise programs in five states concluded that, “[f]ollowing program enrollment, payment of monthly arrears obligations (and current monthly support where applicable) improves, state-owed child support debts are reduced, and high proportions of program participants succeed in complying with the terms of their payment agreements.”

The review also identified a number of features of effective programs — the most successful programs dealt with younger cases, lower debt levels, and cases with current orders — and recommended that more programs consider approaching custodial parents about debt forgiveness (many of the programs only focused on forgiving debt owed to the government and were reluctant to ask custodial parents to participate, despite the fact that the evidence suggests that many are open to debt compromise).

“Even the IRS compromises arrears, everybody compromises arrears,” says Jessica Pearson, one of the authors of the review referenced above and the director of the Center for Policy Research.

Another good point. Every holder of debt is willing to compromise when the debt looks to be unpayable in full. So why not states and custodial parents?

Then there are the obvious defects in the system that need to be changed and that the OCSE is trying to reform.

Of course, the best way to reduce the crippling debt that many low-income, non-custodial parents currently face may be to prevent those arrears from accumulating in the first place. The Obama administration has proposed a number of new regulations to tackle this issue, among them rules that would prohibit states from classifying incarceration as “voluntary unemployment” (a technical designation which means that the incarcerated can’t file for modification, causing debts to pile up while they’re in prison), the encouragement of state agencies to automatically modify child support orders for incarcerated parents, and the prodding of states to ensure that child support orders are set at a “right-sized” level when they’re established (which researchers believe is less than 20 percent of a non-custodial parent’s earnings).

Yes, as the OCSE has repeatedly said, setting orders at levels non-custodial parents can actually pay seems like a good way to prevent arrears. The notion that imprisonment constitutes “voluntary unemployment” speaks for itself. No one goes to prison voluntarily.

States rely on different formulas to calculate child support orders, and while some advocates argue that the formulas themselves are unreasonable, Pearson says that the real problems arise when states are forced to “impute” a non-custodial parent’s income (usually based on past earnings, education level, work experience, or the assumption that someone works minimum wage for 40 hours a week).

And of course imputation of income is absurd in most cases. It’s essentially nothing but an excuse to set support levels higher than Dad can pay. Has there ever been a case in which a judge imputed income to a non-custodial parent that was lower than he was currently earning? If so, I’ve never heard of it.

Tellingly, researchers have found that child support orders set via imputation of income are frequently too high and actually result in higher rates of non-payment.

What a surprise. Fathers buried under debt loads they know they can’t pay, aren’t encouraged to try. Those that face manageable payments usually do. I know these are elementary concepts, but they’re necessary to state. The child support system is so wrong-headed it’s a travesty. It needs to be changed, root and branch. Thanks to Dwyer Gunn for helping that process along.

 

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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