CHILD SUPPORT

CHILD SUPPORT

A payment that a noncustodial parent makes as a contribution to the costs of raising her or his child.

In the mid-1990s, as never before, child support became a topic of urgent U.S. national discussion. The system that awards and enforces child support was declared inadequate by state and federal policy makers. Failures in the system were blamed for child poverty rates, long-term dependence on government assistance, and the “feminization of poverty.” Courts drew criticism for awarding child support inconsistently and inequitably. These social and economic issues attracted both federal attention and reform efforts.

The need for child support payments usually arises when one parent does not have physical custody of his or her child, so that parent’s income does not benefit the child on a daily basis. At times, neither parent has custody, and both may pay a third person who is caring for the child. When both of a child’s parents have full custody (as when they are married to each other), and usually when they are divorced and share joint physical custody, the needs of the child are presumed met and child support is not an issue. As long as parents provide a safe level of care, the government does not control their contributions to their children.

In the United States in the early 2000s, nearly half of all marriages ended in DIVORCE, and almost one-quarter of all children were born to unmarried parents. Most of the children who lived in single-parent families had a legal right to a child support order. Child support can be voluntary or court ordered and can be secured through a divorce decree or a separate action. Increasingly, support orders are issued by state agencies.

The legal duty to support a minor child belongs to both parents, even if the custodial parent is capable of caring for the child singlehandedly. Support is awarded to provide for the child’s basic needs and to allow the child to share in the standard of living of both parents. Although both mothers and fathers can be ordered to pay support, a 1994 study in Utah found that over a 20-year period, mothers were required to pay child support in fewer than one in five cases in which fathers received sole custody. A greater proportion of noncustodial fathers were ordered to pay support.

A petition for support is usually begun in a state court where the plaintiff (the parent seeking the order) resides. The Uniform Interstate Family Support Act of 1992, which was updated in 1996 and 2001 and which has been adopted in some form in the majority of states, provides that jurisdiction exists where the child or one of the parents resides. Before support can be awarded, parentage (called PATERNITY in the case of fathers, maternity in the case of mothers) must be demonstrated. The would-be payer is entitled to blood tests, but in some states must pay for them. The 1993 FEDERAL BUDGET bill (Omnibus Budget Reconciliation Act of 1993, 42 U.S.C.A. § 666[a][2]) required states to offer speedy means of establishing parentage, since parentage disputes can delay a valid child support award.

Determining Awards

Child support awards are made by each state’s family court system. Most states require that they be based on the best interests of the child. In addition to determining support in contentious divorce cases, courts review stipulations (agreements) between parents and can overrule an agreement that does not adequately provide for children.

Often, courts feel pressure to balance children’s needs with their parents’ needs. Awards are based on the noncustodial parent’s ability to pay and must allow the parent to remain selfsupporting. Many associations of noncustodial parents emerged after the 1980s to express their belief that awards were burdensome to the payers, benefited only the custodial parent, or did not provide payers with enough in return. At the same time, more single parents with children slipped into poverty than had at any other point in the nation’s history.

In the mid-1990s, no federal child support guideline existed, mainly because child support was historically a state-controlled issue. Most states had established their own guidelines in the quest for fair standards. About 15 states used the “percentage-of-income” guideline, which is based on the income of the noncustodial parent. Thirty states used the “income-shares” method, which is based on the income of both parents. It prorates the total support between the parents and calculates each contribution proportionally according to income. Several states used the elaborate Melson formula, which provides a basic subsistence level for each parent before determining the primary support needs of the children. This formula then awards a percentage of the remaining income so that the children share in the standard of living of each parent.

Even when guidelines are used, judges consider the facts of a case and other statutes. They
can depart from the guidelines for considerations such as how property is divided, whether
an arrearage (unpaid child support) exists, and what disparities in parents’ incomes exist. In many states, judges must prove in writing that an exception to the guidelines serves the child’s best interest.

In practice, courts are allowed to use many criteria in setting an award amount. Some judges consider the needs of subsequent children when obligors (payers) remarry and start new families. Some may adhere to the Uniform Parentage Act, which states that courts must take into consideration, among other things, the age of the child, the financial resources and earning ability of the child, and the value of services contributed by the custodial parent.

Investment income, unearned income, overtime,
bonuses, income from a second job, gifts,
and retirement pay may all be eligible income
when calculating child support due, regardless
of its tax status. Putative income (earning capacity)
is used to calculate support in many states if
it is suspected that the noncustodial parent is
deliberately underemployed or unemployed.
The court is allowed to credit SOCIAL SECURITY
benefits toward support, but this action is not
automatic. Child support is not deductible from
either parent’s taxes, any more than are the provisions
that married parents supply to their children.
The children themselves qualify as
household deductions, but only one parent may
claim them.

Unless a state mandates that child support
be awarded, the court can deny it. Courts have
denied support in situations of split custody, in
which each parent has custody of one or more
children.With exceptions, the court usually does
not award child support to a noncustodial parent
during visitation. Support can be ordered for
legally adopted children. It cannot be ordered
for grandchildren who have not been legally
adopted.

Consequences for Nonpayment
The consequences of not paying child support are inconsistently applied—a situation many states want to remedy. A delinquent obligor may face contempt-of-court charges and civil penalties. Criminal sanctions can include a jail sentence or a fine, but these punishments are used sparingly and for repeat violations. Prosecution may proceed on a misdemeanor or felony level, depending on the circumstances. In addition, federal prosecution may occur for a parent who crosses a state line to avoid paying support.

Enforcement
In 1992 $27 billion in child support went
uncollected. The U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES has estimated that a substantial
increase in child support collections
could reduce the payments of Aid to Families
with Dependent Children (AFDC) by 25 percent.
The federal government created the AFDC
program in 1935 to enable states to provide
money and services to help poor children
remain in their own, single-parent homes.
These observations were not lost on the 1994
Senate, which directed the JUSTICE DEPARTMENT
to “immediately address shortcomings in
enforcement of the law [regarding child support].”
Enforcement efforts are administered
federally through the department’s Office of
Child Support Enforcement, but child support
recovery units at the state level perform the daily
task of securing payment.

The problems surrounding the collection of
child support have provoked frustration and
ingenuity in states throughout the nation. A
major barrier to timely and regular collection is
the large volume of child support orders that
states are required to enforce monthly. One
response has been to divert cases from the court
system by empowering state agencies to enforce
child support orders.

A primary means of collecting is wage withholding.
This action requires that the employer
of the obligor send a percentage of the obligor’s
paychecks to the state or county, which forwards
it to the custodial parent. Where the custodial
parent receives federal public assistance, income
withholding is mandatory. GARNISHMENT is
similar to withholding, but it is used when the
obligor is about to receive a lump-sum payment.
Interception of the obligor’s federal tax
return is another enforcement tool. In the first
seven years after implementing a pilot of this
requirement, $1.8 billion was collected.As of the
early 2000s federal law requires every state to
have legislation for intercepting the tax returns of delinquent obligors and applying them to
child support after a review.
Self-employed obligors, or those whose
employment is unknown, pose a challenge to
collection agencies. In their case, states may rely
on the custodial parent’s knowledge of the
obligor’s income and on tax returns to pursue
enforcement.

If a parent who owes child support dies, the
child support payments may be made from the
deceased parent’s estate, at least according to one
court. In L. W. K. v. E. R. C., 735 N.E.2d 359
(Mass. 2000), in the Supreme Judicial Court of
Massachusetts a father was required by a court
to pay $100 per month in child support for his
minor daughter until the daughter turned 18.
The father subsequently disinherited the daughter
in his will. He died five months after he executed
the will. The court ruled that the child was
entitled to receive child support payments from
the father’s estate until she turned 18.
Other enforcement methods include placing
a lien on the obligor’s property so that it cannot
be sold without clearing the arrearage. At times,
interest is added to unpaid child support in
order to motivate the obligor to pay off this
debt; in 1995, the default rate was nearly 50 percent
on child support, compared with only 3
percent on car loans. Some states have taken the
high-profile approach of publicly issuing controversial
“Wanted” posters depicting delinquent
obligors. Others have revoked state-issued
fishing, hunting, and even driver’s licenses as
punishment for nonpayment.

Less common methods for securing child
support owed are the seizure of government
security bonds, collection of the full amount by
the INTERNAL REVENUE SERVICE (this method
was still under consideration in 1995), and
seizure and sale of property or other forced payment.
The effects of reporting delinquent obligors
to credit bureaus are being studied.
Interstate orders (orders for support to be
paid by a parent in a different state) pose additional
problems for enforcement. Although
three in ten child support cases are interstate,
only 10 percent of the delinquent collections
nationwide result from these cases. This circumstance
has caused child support collection, usually
considered a state function, to become an
issue of national importance. Although most
states have LONG-ARM STATUTES enabling them
to retain jurisdiction over obligors in other
states, delays result when the laws are not uniform.
Failures to collect across state lines are due
to heavy case backlogs, multiple and conflicting
orders, lack of priority given to interstate cases by the responding state, and an inability to
locate the noncustodial parent.

The Uniform Interstate Family Support Act
(UIFSA), which was developed in 1992, contains
what is called the one order, one time rule, in
which the initial state retains jurisdiction in
order to prevent multiple orders. The act limits
modifications and provides that they must
occur in the child’s home state. The model legislation
also features direct income withholding,
so that the state of origin can communicate
directly with the obligor’s employer in another
state. It also requires that states that adopt the
uniform law provide enforcement services to
one another.

In October 1994, the U.S. Congress’s Full
Faith and Credit for Child Support Orders Act
became effective (28 U.S.C.A. §§ 1 note, 1738B,
1738B note), enabling states to enforce and
modify orders under certain circumstances.
Public Assistance

In 1991 the CENSUS BUREAU found that
nearly half of all single-parent families headed
by a woman live at the poverty level. A report on
child support enforcement presented to the Senate
in 1994 found that more than one-fifth of all
U.S. children lived in poverty. As a result, in the
1990s, reliance on AFDC increased dramatically
nationwide.

In recognition that many families require
public WELFARE because a noncustodial parent
does not contribute, Congress adopted Title IVD
of the Social Security Act in 1975 (Social Services
Amendments of 1974, Pub. L. No. 93–647,
88 Stat. 2337 [1975] [pertinent sections codified
at 42 U.S.C.A. §§ 661–665 (1988)]). The legislation
created the federal Office of Child Support
Enforcement and required states to establish
state child support offices. Under Title IV-D,
services such as locating noncustodial parents,
determining parentage, and establishing and
enforcing support orders must be provided free
to families that receive AFDC. In addition, these
services must be provided at very low cost to
custodial parents who do not receive AFDC. The
federal government requires states to provide
these services as a condition for receiving AFDC
services.

In the 1990s, child support was sought as part
of the regular intake procedure for unmarried
parents who were requesting public assistance.
To comply with federal funding requirements,
most states require that an unmarried parent
seeking AFDC identify the absent parent and
cooperate in efforts to establish parentage and
secure child support.

Modifying Awards

A family’s postdivorce economic situation will likely be different from its predivorce economic situation. In most cases, divorced parents set up separate households whereas they lived together in one home while married. Because the same resources cannot support two households at the same level as a single household, awards are often considered inadequate by the custodial parent and burdensome by the obligor. An existing support order may be modified if the child’s needs or the paying parent’s resources change. Back child support can be ordered if a modification or other order delays payment.

Remarriage or COHABITATION does not necessarily
affect child support, although if demonstrated to be a permanent change in circumstances, it could become a basis for modification. A child’s ADOPTION releases the obligor from future payments but does not cancel an arrearage.

Some orders are automatically modified when certain conditions are met. For example, an escalation clause allows the child support amount to increase as the obligor’s income increases. A cost-of-living-adjustment (commonly referred to as COLA) clause permits modification without a hearing when there is an increase in income coupled with inflation. The purpose of these clauses is to keep cases out of court. Courts usually do not approve automatic increases that are not based on an increase in income.

To ensure that orders remain adequate and
equitable, Congress began in 1993 to require
that states review and, if necessary, adjust child
support orders at least once every three years if
the custodial parent receives federal public assistance.
This arrangement differs from state modification
standards that are based on changes in
circumstances.

BANKRUPTCY does not end a child support
obligation. A child’s move, if authorized, does
not end support. And an obligor’s estate may be
required to continue support payments after the
obligor’s death. In most cases, the obligation
ends only when the child reaches the age of
majority, marries, or can support herself or
himself.

In some states, the court may terminate or
suspend child support as a way to enforce a visitation
order. The difficulty with this modification
is that the child may suffer as a result.

Other Awards
Financial awards for higher education are
sometimes included in an order to pay support
but are not meant to substitute for primary support.
Education awards are common in families
in which children are expected and able to complete
postsecondary coursework. Courts have
denied awards for tuition, for lessons, and for
other education-related expenses when those
expenses are deemed unnecessary.
A responsibility to provide HEALTH CARE is
occasionally clarified in orders for support,
especially when one or both parents have access
to an employer-provided health plan. In the
early 1990s, a total of 25 million children had no
employer-provided insurance, and 8.4 million
had no coverage at all. Nevertheless, also in the
early 1990s, a majority of support orders lacked
provisions regarding HEALTH INSURANCE.
An obligor may be required to maintain a
life insurance policy naming the child or
guardian as beneficiary.

FURTHER READINGS
Bahr, Stephen J., et al. “Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference?”
Family Law Quarterly (summer).
Calhoun, Janelle T. 1995. “Interstate Child Support Enforcement
System: Juggernaut of Bureaucracy.” Mercer Law
Review (winter).
Haynes, Margaret Campbell. 1994. “Child Support and the
Courts in the Year 2000.” American Journal of Trial
Advocacy (spring).
Mason, Mary Ann. 2000. The Custody Wars: Why Children
Are Losing the Legal Battle and What We Can Do About
It. New York: Basic Books.
Ramsey, Sarah H., and Douglas E. Abrams. 2003. Children
and the Law in a Nutshell. St. Paul,Minn.:West.
Sampson, John J., and Barry J. Brooks. 2002.“Uniform Interstate
Family Support Act (2001) With Prefatory Note
and Comments.” Family Law Quarterly 36 (fall):
329–447.
Solomon-Fears, Carmen. 2003. Paternity Establishment:
Child Support and Beyond. New York: Novinka Books.
U.S. Census Bureau. Custodial Mothers and Fathers and Their
Child Support. Washington, D.C.: U.S. Government
Printing Office.
U.S. Dept. of Health and Human Services. 2000. Income
Withholding for Child Support. Washington, D.C.: U.S.
Dept. of Health and Human Services, Office of Child
Support Enforcement
Zmijewski, Daniel Robert. 2003. “The Child Support Recovery
Act and Its Constitutionality After U.S. v.Morrison.”
The Kansas Journal of Law & Public Policy 12 (winter):
289–309.

CROSS-REFERENCES
Child Custody; Divorce; Family Law; Parent and Child;
Welfare.