According to a press release from a New York law firm, the State of New York has recently amended its procedures and grounds for modifying a child support order. Specifically, they’re making it easier. One of the attorneys seems to think the legislature is responding to the economic conditions that have thrown so many people out of work. If so, I’m glad to hear it.
The salient features of the new law, effective October 13, 2010, are (a) parties can seek to modify an order that’s based on an agreement between them, (b) they can’t request a modification unless three years have passed since the date of the entry of the original order or the most recent modification and (c) if a party’s income has varied 15% he/she can request modification.
As usual, downward modifications are still viewed with skepticism and made much more difficult to obtain than upward ones. The party seeking a downward modification must show, in addition to the other requirements, that his/her decrease in income was involuntary and that he/she has diligently sought employment commensurate with his/her abilities, skills, education, experience, etc.
Stated another way, if you have a child and you’re divorced, you may not take time off to change careers, re-educate yourself, retire, etc. That’s true if you’re a non-custodial parent; if you’re a custodial one, apparently you can quit your job and apply for an increase due to your decreased income. At least that’s the way I read the law.
This, along with the fact that New York doesn’t charge interest on arrearages, makes it one of the more enlightened states regarding child support. Still, the very fact that this constitutes enlightenment is proof positive of the benighted conditions non-custodial parents live under.
Consider, for example, the three-year rule. It’s completely arbitrary and ignores the very real possibility that a non-custodial parent could suffer financial setbacks in that time. Of course he could, but the law says “tough luck.” If he can’t pay, he’ll accumulate arrearages for the three years and maybe go to jail. Of course then he could make a motion to the court if he could afford an attorney which he likely can’t.
In other areas of the law, states can’t imprison a person because he/she is too poor to pay a fine. It escapes me why the same reasoning shouldn’t apply to child support. If a person demonstrates an inability to pay, the state shouldn’t be allowed to infringe his/her rights by jailing the person. But I’ve never heard of that issue being litigated.
As I’ve mentioned before, the U.S. Office of Child Support Enforcement has said, 63% of obligors in arrears report earning less than $10,000 per year. State sweeps of those in arrears routinely collect pennies on the dollar even from parents who face jail if they fail to pay.
What should happen in all states is the passage of laws providing for summary procedures when downward modification is requested. Whether modification is warranted is simply not rocket science; it doesn’t take a judge to figure it out and it shouldn’t require an attorney to make the case. Special masters should be appointed who do nothing but child support modification. Comprehensive lists of what evidence a person should bring to the hearing to prove his/her case should be published and given to every person when he/she files a request for modification. Filing fees should be waived.
As we do things now, it’s crystal clear that we’re doing our best to put and keep non-custodial parents in arrears. The laws and procedures just don’t make sense viewed any other way. And coincidentally, people who have worked inside the system confirm exactly that.
I wrote some time ago here about Carol Rhodes who worked for 20 years as a Friend of the Court in Michigan’s family courts. The tales she tells are shocking.
In a nutshell, the child support system is all about money – the more the better. That’s because state governments are paid by the federal government based on how much child support they collect. It ill serves them to set amounts low and the more interest and fees they can tack on the better for them. Fathers seeeking downward modifications are routinely lied to by court personnel and their hearings delayed. According to Rhodes, supervisors specifically instruct subordinates in the fine art of making dads pay as much as possible. Failure to obey can cost a court employee his job.
It all means more federal largesse, so what matter if countless dads are hounded into penury?
Against the promise of ever-greater sums of money flowing to states from Washington, the plaintive bleats of the Office of Child Support Enforcement urging states to set support at levels that NC parents can actually pay go entirely unheard.
Of course 50-50 parenting could go a long way toward reducing child support to levels that would be easy to pay. That would dry up state bureaucracies and enforcement mechanisms, help keep dads employed, out of jail and with their children. But that’s far too sensible a suggestion for entrenched interests to consider.
So for the time being, we’ll have to look at states like New York and count our meager blessings.