Child support in the United States

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Main article: Child support

The law governing child support in the United States varies state-by-state and tribe-by-tribe; kutta individual state and federally recognized American Indian tribe is responsible for developing its own guidelines for determining child support.

There is an over-arching Federal Government framework. The child support program is the responsibility of the Administration for Children and Families in the Department of Health and Human Services. Federal IV-D Regulations require uniform application of the child support guidelines throughout a state, but each state can determine its own method of calculating support. Most states have therefore adopted their own "Child Support Guidelines Worksheet" which local courts and state Child Support Enforcement Offices use for determining the "standard calculation" of child support in that state. Courts may choose to deviate from this standard calculation in any particular case.

Contents

[edit] Legislation

[edit] Louisiana

Louisiana's child support legislation is based on the Income Shares model developed by Policy Studies Inc. (PSI) [2] .

[edit] Basic Child Support Tables

The child support tables are designed for ordinary income levels to take 25% of the obliger's net income for one child. The percentage increase to 35% for two; 40% for three; 45% for four; 49% for five; and 54% for six or more children. The percentage taken decreases with increasing income.[3]

[edit] Self Support Reserve

The tables include the concept of a Self Support Reserve (SSR). The SSR is meant to ensure that the paying parent has sufficient money to live on at federal poverty level. As of 2007, the SSR amount in Louisiana is $551/month gross income. In 2000, PSI recommended increasing the SSR to $687 gross income/month. In 2005, PSI recommended increasing the SSR to $748 gross income/month. These proposed amounts were set based on 85% of Federal Poverty guidelines for a single person.

[edit] Work Incentive

The two methods for child support put an inherent conflict into the tables. To obtain a smooth transition between the SSR amount and the percentage amounts, PSI fit a straight line between the two amounts.

To ensure that the paying parent had an incentive to earn more money, they built in a work incentive. The tables allow the paying parent to keep 10% of the net increase for one child; 9% for two; 8% for three; 7% for four; 6% for five; and 5% for six or more children.

[edit] Minimum support obligation

A minimum support order of $100/month was required regardless of circumstances.

[edit] Additions to the basic obligation

The court can increase the basic obligation to allow for 1) Net Child Care costs; 2) Health Insurance; 3) Extraordinary medical expenses; 4) and Extraordinary Expenses.

Careless or abusive application of these provisions by the courts can result in support orders that exceed the maximum garnishable amount (50% of net income or minimum wage times 30 hours) by state law.

[edit] Unemployment and underemployment

State law [4] allows for the state to refuse to lower child support orders if a party becomes unemployed or underemployed for any reason.

The state considers going to jail a voluntary act and continues awards unabated on the incarcerated.

[edit] Enforcement of child support across state lines

[edit] Final judgment

Under the United States Constitution Article Four, full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. Courts have used the full-faith-and-credit article to enforce final judgments that have been registered within a state.

When a judgment is not final, there is a problem of registering that judgment in another court, because normally a judgment must be final before it can be registered. The Restatement of Conflict (Second) states, under the topic of Defenses to Recognition and Enforcement, that a judgment rendered in one state need not be recognized or enforced in a sister state insofar as the judgment remains subject to modification in the state of rendition either as to sums that have accrued and are unpaid or as to sums that will accrue in the future. A court is free to recognize or enforce a judgment that remains subject to modification under the local law of the state of rendition. Child support orders are considered judgments of this sort.

Under full faith and credit, the local law of the state of rendition will be applied to determine whether the judgment is modifiable and, if so, in what respects. This law will determine whether the judgment is modifiable with respect to past due installments and with respect to future installments. As between states, full faith and credit requires application of the local law of the state of rendition to determine whether the judgment is modifiable and, if so, in what respects.

[edit] Uniform Reciprocal Enforcement of Support Act (URESA)

In 1910, the National Conference of Commissioners on Uniform State Laws approved the Uniform Desertion and Non-Support Act. The act made it a punishable offense for a husband to desert, willfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances, or for a parent to fail in the same duty to his child less than 16 years of age. The 1910 act sought to improve the enforcement of the duties of support, but it did not take into account husbands and fathers who fled the jurisdiction. With the increasing mobility of the population, welfare departments had to support the destitute families because the extradition process was inefficient and often unsuccessful.

In 1950, The National Conference of Commissions on Uniform State Laws published the Uniform Reciprocal Enforcement of Support Act (URESA). The Commission stated that, “The purposes of this act are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” URESA sought to enforce the provisions in two ways: criminal enforcement and civil enforcement. The criminal enforcement relied upon the obligee state demanding that the obligor state extradite the obligor to the obligee state, or for the obligor to submit himself/herself to the jurisdiction of the obligee state. The civil enforcement relied upon a system where the obligee would initiate proceedings in his/her state. The initiating state would determine if the obligor had a duty of support. If the initiating court held that the obligor had a duty of support, the initiating court would forward the case to the obligor’s state. The responding state, which would have personal jurisdiction over the obligor, would provide notice and a hearing for obligor. After this hearing, the responding court would enforce the support order.

[edit] Revised Uniform Reciprocal Enforcement of Support Act (RURESA)

In 1958, the Uniform Laws Commission again amended URESA, which later became known as the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). The amendments involved two important changes to URESA. First, the amendments sought to correct a problem created by URESA where the responding court would only have evidence from the obligor and not have any evidence from the initiating state or the obligee. The responding court, with only one side represented would often decide in favor of the obligor. This result did not serve the purpose of URESA. The Commission’s solution was to amend URESA so that the initiating state and the obligee would provide evidence that would be sent to the responding court along with the original case file. The initiating court presented to the responding court evidence of the mother’s case, so the responding court would have positions from both parties to the case. Second, the Commission provided a second method to obtain redress under the category of civil enforcement. The new method provided for the obligee to register the foreign support order in a court of the obligor’s state, and present that case directly to the foreign court.

RURESA provided new protection for mothers against noncompliant fathers; however, RURESA created a new problem - multiple support orders. Since every state could both enforce and modify a support order, a new support order could be entered in each state. Thus, if the father moved from State A to State B to State C to State D, and if the mother continually registered and had the order modified, then there would be four separate and independent support orders. RURESA provided that the state courts could modify the original order so long as the court applied its own procedural law and the substantive law of the original state, unless that application of substantive law contravened its own public policy. The Commission intended to correct the problem of inconsistent multiple orders by only allowing the support orders to be modified based upon a single state’s law. In theory, states A, B and C could only modify a support order based upon the original state’s law; thus, all the support orders should be identical. In practice, however, this rule created ambiguities concerning whether child support guidelines are procedural or substantive, and if substantive, whether application of that substantive law contravenes some public policy. Therefore, it became possible that there could be multiple orders based upon different states’ child support guidelines.

[edit] Uniform Interstate Family Support Act (UIFSA)

In 1992, NCCUSL completely revised and replaced URESA and RURESA because of a flaw created by those acts with the Uniform Interstate Family Support Act (UIFSA) to correct the problem of multiple conflicting child support orders. UIFSA corrected this problem by providing that only one state would possess the power to make or modify child support at any one time ("continuing exclusive jurisdiction"). The state with continuous exclusive jurisdiction would use its own child support guidelines. Thus, if the child or either one of the parents remained in the original state, then that state retained jurisdiction and only that state could modify the support order. Only if both parents and the child left the state could another state assume child support jurisdiction (although any state could enforce the original state's order, regardless of residence of parent or child).

In 1996, NCCUSL revised UIFSA and the United States Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which required that all states adopt the 1996 version of UIFSA. In 2001, NCCUSL adopted additional amendments to UIFSA. Only a few states have adopted the 2001 amendments.

UIFSA contains five main parts: General Provisions, Establishing a Support Order, Enforcing a Support Order, Modifying a Support Order, and Parentage.

[edit] Conflict of Laws

Child support guidelines determine what monetary amount should be awarded for child support. Every state has its own child support guidelines. Every state’s guidelines are unique, so every state awards different monetary amounts. Between two states, the difference in award’s amounts may be nominal when taken on a weekly basis. Over long periods, however, these weekly differences accumulate to large sums. A conflict-of-laws issue can confront the courts. This conflict-of-laws issue is governed by the Uniform Interstate Family Support Act in the United States to assure that only one state has the power to impose or modify child support at any one time.

For simplicity, this article uses the model where the mother becomes the parent with custody of the children and the father makes child support payments, with the understanding that in the modern day, this model has become less typical. For example, a man and a woman marry in West Virginia. During the marriage, the husband and the wife have children. In West Virginia, the husband and the wife divorce. West Virginia issues a divorce decree that gives the wife custody of the children and orders the husband to pay child support. Subsequently, the wife moves to Connecticut with the children. Due to a change in circumstances, the husband, who may or may not still reside in West Virginia, seeks a modification of West Virginia’s divorce decree. The issued raised is which state's child support guidelines are to apply?

[edit] California

In 2004, the California Court of Appeals ruled upon the issue of which child support guidelines should be applied. The father and the mother in question obtained a divorce decree in Idaho, at which time they lived with their six children. The father moved to California, and the mother with custody of the children moved to Oregon. The divorce decree was registered in California. The County District Attorney filed a motion to modify child support and for a finding that California had continuing exclusive jurisdiction. The issue before the court was which state’s child support guidelines should apply - Idaho's, California's, or Oregon's.

In applying UIFSA, the California Appeals Court held that Idaho no longer had continuous exclusive jurisdiction because no party remained in Idaho, a petitioner who is a nonresident of this state seeks modification, and the respondent is subject to the personal jurisdiction of the tribunal of this state. The court reasoned that California Child Support Guidelines applied over Idaho Child Support Guidelines for two reasons. First, due to UIFSA, California had obtained continuous exclusive jurisdiction, and because of that jurisdiction, California will use its own guidelines. Second, the marital settlement agreement does not change the above result because of three reasons: (1) due to the special nature of child support, parents are bound by public policy extrinsic to their own agreements, (2) Idaho has adopted UIFSA as well, (3) under the Restatement Second of Conflict of Laws, California has a materially greater interest than Idaho in seeing its child support guidelines applied.

Finally, the California Appeals Court addressed the argument that the Oregon Child Support Guidelines should be applied instead of the California Child Support Guidelines. The court refused to address this issue on two counts. First, the father failed to explicitly raise this issue at the trial court; thus, the father waived his right to appeal this issue. Second, even if the father had preserved his right to appeal, the father presented no evidence regarding the differences in the cost of living between Oregon and California, so the court had no evidence on which to base its decision.

In a footnote, the court spoke of the Commission created by Congress in 1988 to recommend ‘how to improve the interstate establishment and enforcement of child support awards.’ In that footnote, it was noted that:

The Commission, which Congress created in 1988 to recommend `how to improve the interstate establishment and enforcement of child support awards,' favored a system under which the modifying jurisdiction's law would apply in modification proceedings. In its report to Congress, the Commission noted that it had heard testimony advocating a variety of approaches to deciding which state's law to apply in such proceedings: Some witnesses testified that the law most advantageous to the child should govern, others testified that the law where the obligor resides should govern, and still others testified that the law where the child resides should govern. The Commission ultimately recommended `that the procedural and substantive law of the forum state should govern in establishment and modification proceedings,' citing the `ease and efficiency of application of local law by decision-makers' as an important consideration. As discussed above, the official UIFSA commentary [to UIFSA section 303] echoes this concern for efficiency.

[edit] Connecticut

Connecticut’s Anomaly

Connecticut has two registration methods on its books. The Connecticut Legislature created this anomaly. The historical background sheds light on the subject. Connecticut adopted URESA and adopted the RURESA registration method. Subsequently, Connecticut adopted UIFSA and repealed URESA, but did not repeal the RURESA registration method. The RURESA registration method remains valid. Since Connecticut adopted UIFSA, which has a registration method, and failed to repeal RURESA’s registration method, Connecticut has two registration methods on the books. Both methods allow for a foreign order to be registered in Connecticut. The UIFSA registration method limits jurisdiction to only one state, while the RURESA registration does not.

[edit] Connecticut’s UIFSA

If a party uses the UIFSA registration method, then the following scenarios would be relevant: (1) the mother or the father remains in the original state, and the other party moves to Connecticut or (2) the mother and father both leave the original state. If either the mother or father remains in the original state, the original state retains continuous exclusive jurisdiction over the order. Connecticut may not modify the order, and the court will not use the Connecticut Child Support Guidelines (see Connecticut Commission for Child Support Guidelines).

The second scenario is that the mother moves to Connecticut, and the father moves to a third state (state B), leaving neither party domiciled in the original state. If the order is registered in either Connecticut or in state B and that state’s court issues a new order, then the original state no longer retains continuous exclusive jurisdiction. In the state where a new order is issued, Connecticut or state B would obtain continuous exclusive jurisdiction and thus the power to modify the support order.

Under this rule, a race to the courthouse is produced. An incentive is created where the mother will want to have the order registered in the state with the higher dollar figures in its child support guidelines and/or the state with more favorable laws concerning modification. On the other hand, the father will want to have the order registered in the state with the lower dollar figures in the child support guidelines and the state with the more favorable laws concerning modification.

Under UIFSA, whatever scenario is applied, there is a clear rule in spite of the possibility of undesirable results. However, because Connecticut continues to have the RURESA registration method on the books, a party could register in Connecticut without invoking UIFSA, which creates the problems that UIFSA was meant to correct.

[edit] Connecticut’s RURESA

If the RURESA method is applied, then the Connecticut General Statute 46b-71 controls, providing the courts with a conflict of laws rule concerning the enforcement of a foreign matrimonial judgment within Connecticut. Connecticut General Statute 46b-71(b) states:

Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.

The statute’s explicit language provides that the courts may modify a foreign judgment using their local procedures. The statute also provides that the courts shall apply the substantive law of the foreign jurisdiction, unless that application of the substantive law would contravene Connecticut public policy

In Burton v. Burton, the Connecticut Supreme Court recognized that Connecticut General Statute 46b-71 was the governing statute. In addition, the Court held that the laws that determine whether modification is warranted are substantive laws; therefore, the foreign law controlled the Court in its determination of whether modification is warranted.

Since Burton, the Connecticut courts have not resolved the following issue: Should the courts apply the local child support guidelines or the foreign child support guidelines when the RURESA registration is applied? Connecticut General Statute 46b-71 and Burton frame the issue. If the Connecticut courts characterize the child support guidelines as procedural, then the local courts apply the local child support guidelines; if the courts characterize the child support guidelines as substantive, then the courts must apply the foreign state’s child support guidelines, unless that application contravenes local public policy.

The Connecticut Supreme Court is silent as to the issue. In Burton, the Connecticut Supreme Court addressed the issue of whether the trial court correctly applied the substantive law of the foreign jurisdiction. However, the issue of whether the foreign state’s child support guidelines are to be considered a part of the substantive law is unresolved.

In Evans v. Evans, the Connecticut Appellant Court indirectly addressed the issues and held that it would not disturb an order of the trial court absent an abuse of discretion. The trial court held, among other factors, that it was not bound by the New York Child Support Guidelines, although it did consider them in its evaluation of what the child support award should be. The Appellant Court failed to state explicitly which child support guidelines the court should apply.

Due to the lack of guidance from the higher courts, the Connecticut Superior Courts are split on the issue. The Superior Courts agree that the courts are to apply the substantive law of the foreign jurisdiction. The Superior Courts differ as to when the courts must determine if that substantive law includes that state’s child support guidelines. Some of the Superior Courts have held that the courts should apply the Connecticut Child Support Guidelines. Conversely, other Superior Courts have held that the courts should apply the foreign child support guidelines. In a recent Superior Court decision, Judge Munro stated that “[t]he court will allow the parties to argue at the subsequent hearing on the merits whether, in applying Ohio substantive law, the court looks to the Connecticut Child Support Guidelines or the Ohio Child Support Guidelines, or some other criteria. ”

[edit] Public Policy

Children have the right to support, which includes, but is not limited to, basic fundamentals such as food, clothing, medical care and adequate domicile. The cost of living varies from state to state. Every state’s legislature enacts child support guidelines to sustain those basic fundamentals. The dollar amount necessary to fulfill the basic fundamentals would also vary from state to state. If the local courts apply the foreign state’s child support guidelines, then a child in Connecticut could receive more or less money than that which is required to sustain that right to support. The differences in amount could be either an extra benefit or a detriment to the child.

Assuming that the mother and the child are in Connecticut and the father remained in the original state, the court must balance the welfare of children within its borders with the rights of the father in the foreign state. Connecticut’s public policy should stress that the child’s right to support is the primary policy. If the courts hold that the modification is warranted, then the courts would have a strong incentive to protect Connecticut’s interest in protecting children within its borders compared to protecting the interest of the foreign party.

If the mother, due to a lower child support award, is unable to adequately support the child, then the mother may require state assistance, which would be a drain on public funds. Conversly, if the mother is due a larger child support award than necessary, then the father is punished because the extra award would be a windfall to the mother.

In a footnote, Trial Referee Cutsumpas states that “[t]he court is mindful that it would be more practical to have the child support issue determined in the State of Connecticut where the children and obligee mother reside rather than in the State of New York where only the obligor father resides… However, absent written consent of the parties, UIFSA dictates jurisdiction which in this case is the State of New York. ”

Also, if the mother cannot receive adequate child support funds from the father, then there is an incentive for the mother to return to the original state, which could negate the possibly benign reasons why the mother moved in the first place. Some examples could be that the mother moved to obtain a job, moved closer to supportive family members or moved for a better environment for the child. To conclude, Connecticut has a stronger public policy reason for protecting the child’s best interest

[edit] Ending Opinion

As with most fields of law, the area of child support developed with good intentions; however, despite good intentions, laws are created which under normal circumstances produce appropriate outcomes, but under unusual circumstances produce undesirable results. In Connecticut, it is possible for these child support cases to fall “in between the cracks.” In short, it seems reasonable that the state in which the child lives is the state whose child support guidelines should be applied because every state has different costs of living and expenses and what is needed to support that child would differ from state to state. Since the primary reason for child support is to support the child, it follows that the amount of child support should be determined by the child’s domicile state.

Due to the law’s evolution, the Connecticut Superior Courts have at times applied the guidelines of the state in which the child does not reside. It is conceded that there is an argument that a father would be penalized by potentially paying a higher percentage of his income without any say in the matter. However, the father did know or should have known in entering a relationship which produced children that such a relationship would lead to a responsibility to care for his child(ren). The father had some choice in the actions that produced his offspring as opposed to the child who had no choice in being born. Laws should protect those who cannot help themselves, because they are in the most in need.

[edit] District of Columbia

In 1993, the District of Columbia Court of Appeals in dicta applied the governmental interest analysis and held that the state in which the child is domiciled is the state whose child support guidelines should apply. The father and mother were married in the District of Columbia. The family moved to Maryland. Upon divorce, the father returned to the District, and the mother with custody of the children remained in Maryland. The father filed a motion to adopt foreign law, and requested that the Maryland Child Support Guidelines apply. The court held that precedence dictated that the court apply the Maryland Child Support Guidelines. The court stated that even if previous case law was silent as to the issue, then applying the governmental interest analysis test would lead to the same result.

The court applied the governmental interest analysis as follows: The interests of the District and Maryland in this controversy are reflected in their respective guidelines. "[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." We must therefore identify the purposes of the District of Columbia child support guideline and of its Maryland analogue in relation to the issue presented in this case.

Child support is not intended to punish the father, but rather to ensure a decent standard of living for the child. Under the District's guideline, "[c]hild support payments are for the benefit of the children . . . and the children's interest is paramount." The non-custodial parent's income is, of course, relevant, but this is because…[a] proper calculation of the costs of rearing a child is dependent upon the income of the parents and is a function of that income; it is inappropriate to attempt to establish the amount of the financial needs of the child as though that figure were independent of parental income.

This is the reason — indeed, the only reason — for the consideration in the guideline of the non-custodial parent's gross income. In other words, the primary purpose of the District's child support legislation is to protect the rights of District of Columbia children, not to penalize District of Columbia fathers. Indeed, the District of Columbia has no legitimate interest in ensuring that a father who lives in the District must pay more to support Maryland children than an otherwise similarly situated Maryland resident would be required to pay.

In the present case, Maryland's "governmental interest" is intrinsically greater than the District's. The children are in Maryland. Their principal expenses are in Maryland. Maryland is the jurisdiction in which the father's non-support would have its impact, and which would have to look after the children if, for example, they became public charges. It is therefore Maryland's responsibility, more or less as parens patriae, to determine the needs of Maryland domiciliaries and how those needs should be met. Unlike the District's guideline, the Maryland guideline was promulgated to protect Maryland children. The governmental interest at issue being the assurance of adequate support for children living in the jurisdiction, and the children in this case being Maryland domiciliaries, it is Maryland's guideline which "would be most advanced by having its law applied to the facts before us." In his otherwise comprehensive separate opinion, Judge Ferren fails in our view to come meaningfully to grips with this central truth.

The mother argues that, if she had sought child support from the father under URESA, "the residence of the obligor parent [would] control when determining the obligation and the level of support." She suggests that we should therefore apply District law in this case, so that the choice of law would be the same no matter which party initiated the suit and which forum was selected for that purpose. The mother's position, however, is founded on a mistaken premise.

If the action had been brought in Maryland, the mother would presumably have registered her judgment in the Superior Court (as did the mother in Nevarez) so that she could reach the father's assets in the District and, if possible, his wages. But contrary to the mother's assertion, the choice-of-law provision in the District's URESA statute authorizes the Superior Court to apply the law either of the jurisdiction where the father was present during the relevant period or of the jurisdiction where the dependents were present at the time of the non-support. Recently, this court indicated, in the context of a suit brought in the District pursuant to URESA by a mother who lived with her children in Texas, that the court would at least "arguably be justified in applying the laws of Texas." Nevarez thus stands for the proposition that application of the law of the State where the children live is, at least, a permissible alternative which the court is bound to consider. Even if this were a URESA case, which it is not, there is no inexorable statutory command which would then preclude the application of the Maryland guideline.

There are concededly factors, which could perhaps be compelling under other factual scenarios, suggesting that we should apply District law. The father chose to bring his action in the District of Columbia. The law of the forum governs "unless the foreign state has a greater interest in the controversy." Moreover, when the interests of both jurisdictions are "equally weighty," we have considered "the substantial savings that can accrue to the State's judicial system when its judges are able to apply law with which they are thoroughly familiar or can easily discover..." We are satisfied, however, that these considerations are substantially outweighed, on these particular facts, by the most important reality in this case — namely, that we are dealing with support for children domiciled in Maryland, and that other things being equal, Maryland has a significantly greater interest than does the District in setting the level of that support. Accordingly, we conclude that the Maryland child support guideline, and not the District's, applies to this case. (internal citations omitted.)

[edit] Maryland

In 2002, the Maryland Court of Special Appeals spoke to the issue of whether the parties’ marital separation agreement required the court to apply the Massachusetts Child Support Guidelines or the Maryland Child Support Guidelines. The parties were married in Massachusetts and had a child. While still residing in Massachusetts, the parties separated. They obtained a divorce decree with the parties’ separation agreement merged into it. The agreement provided that the father would pay child support pursuant to the child support guidelines, that the agreement would be governed by Massachusetts’ law, and that the child support payment would be adjusted annually. After the divorce, the father relocated to Virginia, while the mother, who had custody of the child, settled in Maryland.

After the mother’s move to Maryland, the father made a motion to modify the order in the Maryland court system. The Master found that under the Massachusetts child support guidelines, the mother would receive more money in child support than she would receive pursuant to the Maryland guidelines. The Master applied the Maryland Child Support Guidelines, reasoning that the issues in this case are initially controlled by the Uniform Interstate Family Support Act. Since no party remained in the original state, Massachusetts no longer had continuing exclusive jurisdiction. The Master then found that it had authority to both enforce and modify that support order because the mother and child now reside in Maryland, and the father had registered the divorce decree in Maryland. The Master, in applying the Maryland Child Support Guidelines, computed the payment to be almost half of the original payment, but he recommended the original amount remain in effect to maintain the child’s standard of living.

The Massachusetts Legislatureparties to a contract may agree to the law which will govern their transaction; however, that general rule has limitations.

Citing the Restatement (Second) Conflict of Laws, the court pointed out that the contract did not specifically dictate that the Massachusetts Child Support Guidelines were to be applied. Moreover, Massachusetts law does not always require that the Massachusetts Child Support Guidelines apply. The court then held that the child support provision of the agreement is not an open-ended obligation for the father to pay child support based upon the Massachusetts guidelines if neither of the parties had any ties to Massachusetts. In addition, the court looked to the child’s best interest, which may be undermined by the contractual terms. The court stated:

It may not be in a child's best interest to construe a child support agreement in such a way as to link support to a state to which none of the parties has any present connection. For example, if the child had relocated from a state with a cost of living lower than Maryland's, and with child support guidelines that provided correspondingly less support, it would not necessarily be in the child's best interest to have a parent's support obligation limited by an agreement obligating the court to use guidelines based on the cost of living in the other state. Indeed, that position might well conflict with the public policy considerations that culminated in the enactment of the child support guidelines.

It happens that, in this case, the use of foreign guidelines might yield more child support. But, we cannot sanction a policy that permits use of foreign guidelines so long as the parent pays more support than might otherwise be required, while rejecting their use if it would result in a lower financial payment. Moreover, more can mean less; although appellant seems to suggest that it is always in a child's best interest to receive the maximum possible amount of monetary aid, that is not necessarily so. Use of the child support guidelines of a state wholly unrelated to the parties, except by an outdated agreement, could result in a financial hardship to a parent. In turn, the financial burden on a parent could have an adverse impact on the child, because a parent who is under undue financial pressure may not be able to meet a child's ongoing emotional needs, which are clearly important to the child's healthy development.

[T]he "law and the policy of this State is that the child's best interest is of paramount importance and cannot be altered by the parties." Thus, the parties' Agreement as to child support, standing alone, did not justify departure from the child support guidelines. Because the trial court failed to consider the impact of the parties' agreement upon the parents' financial resources, or the financial needs of the children, we said that it "elevated the parties' contractual expectations over the best interests of the children and impermissibly allowed the parties `to agree to preclude a child's right . . . to have that support modified in appropriate circumstances.'" (internal citations omitted).

The guidelines unquestionably have a significant and legitimate public purpose…. The fact that a particular amount of child support was negotiated by the parties… does not necessarily mean that it is appropriate or equitable. (internal citations omitted).

[edit] "Deadbeat" parents

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Main article: Deadbeat dad

Non-custodial parents who avoid their child support obligations are often termed dead-beat parents. The typical non-custodial parent is the father, thus the common reference to "deadbeat dads".[citation needed] The US Department of Health and Human Services estimates that 68% of child support cases had arrears owed in 2003 (a figure up from 53% in 1999). However, these figures are derived only from asking the Mothers and not based on any scientific data. Many of these arrearage cases are due to administrative practices such as imputing income to parents where it does not exist and issuing default orders of support.[citation needed] Some non-custodial parents claim their payments are too high.[weasel words] According to one study[1] 38% of Illinois non-custodial parents not paying child-support said they lacked the money to pay. Twenty-three percent used non-payment to protest a lack of visitation rights. Fourteen percent complained of no accountability over the spending of their child support money, while 13% said they didn't want their child(ren) and 12% denied parentage. Additionally, some non-custodial parents who have been subject to acrimonious divorces often see these payments as unfair and excessive.[weasel words]

In the Australia, many states suspend an individual's licenses (i.e. driver's license, business license, contractor license) if that individual has significant arrearage in support payments or does not consistently pay support. This authority does not extend to professionals who receive licensure through non-governmental agencies. In 2000, the state of Tennessee revoked[2] the driver’s licenses of 1,372 people who collectively owed more than $13 million in child support. In Texas non-custodial parents behind more than three months[3] in child-support payments can have court-ordered payments deducted from their wages, can have federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources intercepted by child support enforcement agencies, can have licenses (including hunting and fishing licenses) suspended, and a judge may sentence a nonpaying parent to jail and enter a judgment for past due child support. Some have taken the view that such penalties are unconstitutional, on September 4, 1998, the Supreme Court of Alaska[4] upheld a law allowing state agencies to revoke driver's licenses of parents seriously delinquent in child support obligations. And in the case of United States of America v. Sage, U.S. Court of Appeals (2nd Cir., 1996), the court upheld the constitutionality of a law allowing federal fines and up to two years imprisonment for a person willfully failing to pay more than $5,000 in child support over a year or more when said child resides in a different state from that of the non-custodial parent Child Support Recovery Act of 1992[5]

The U.S. law commonly known as the Bradley Amendment was passed in 1986 to automatically trigger a non expiring lien whenever child support becomes past-due.

  • The law overrides any state's statute of limitations.
  • The law disallows any judicial discretion, even from bankruptcy judges.
  • The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification.

But, like any other past-due debt, the obligee, may forgive what is owed.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an offer in compromise.

A note about the term “Dead-beat parent” this a descriptive term used more by Child Support advocacy groups than by Child Support Agencies. Child Support Agencies described clients either as in compliance, not in compliance or criminally non compliant. Compliance is judged by the paying party's performance in meeting the terms of the Child Support court order.

[edit] Child support and welfare

Since enactment in 1996 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), a major impetus to collection of child support in the United States is the Welfare law. A custodial parent receiving public assistance, like Temporary Assistance for Needy Families (TANF), is required to assign his or her right to child support to the Department of Welfare before cash assistance is received. Another requirement is that the custodial parent must pursue child support from the non-custodial parent . Where successful, the child support is then diverted to the welfare program instead of the custodial parent as partial reimbursement of the cash assistance being paid. If the amount of child support paid equals or exceeds the assistance grant, the family is moved off the cash assistance portion of the program (they may still be eligible for food stamps and medical assistance). Other provisions of PRWORA require the custodial parent to find employment and will assist that parent in finding and maintaining such employment (such as buying new work clothes or repairing a vehicle to get them to work). If the custodial parent becomes employed, their cash assistance will be reduced based on the amount of income received. If child support is also being paid, the chances are that it will then be greater than the assistance grant and the family will move off the welfare rolls (at least as far as cash assistance is concerned) . The child support enforcement programs in all 50 states are primarily funded by the federal government through each state’s Department of Welfare. Should a state's handling of child-support enforcement not comply with PRWORA standards, that state's program funding can be reduced by 5% as a penalty.

Despite the claims of some that PRWORA and its welfare connection are generating government income through child support collections, the US Department of Health and Human Services reports[6] that in fiscal year 2003, 90% of child support collections went directly to families. In fact, the percent of payments going to families was 86% or more in 47 states and in seven states exceeded 95%. Only the remaining 5-14% reimburses taxpayers for the cost of welfare expenses. Nevertheless, half of current unpaid child support debt is owed to the government and not to families. Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement stated, "We need to be more aggressive about leveraging older debt owed to the government as an incentive to obtain more reliable payments of current support to families." Towards this end, the United States federal government, through the Social Security Administration, provides up to $4.1 billion in financial incentives to states that create support and arrearage orders, and then collect (cf. 6B, 6C, & 6D).[7]

[edit] Housing and common wages

Some states (such as California) will automatically garnish up to 50% of pre-tax income to pay child support. The Out of Reach report produced by the National Low Income Housing Coalition[8] sets 30% of household income as an affordable level for housing costs. After a loss of 50% of takehome income, the suggested expenditure on rent also decreases 50%.

California’s Fair Market Rent (http://en.wikipedia.org/wiki/Fair_market_rent) (FMR) for a two-bedroom apartment is $1,149. In order to afford rent and utilities, without paying more than 30% of income on housing, a household must earn $3,829 monthly or $45,950 annually. Assuming a 40-hour work week, 52 weeks per year, this level of income translates into a Housing Wage of $22.09. At federal minimum wage, an obligor earns $6.75 an hour. California minimum wage is $8.00 an hour. In order to afford the FMR for a two-bedroom apartment without child support payments in California, a household where all earners are fixed at the federal minimum wage must work 131 hours per week, 52 weeks per year. Or a household must include 3.3 minimum wage earner(s) working 40 hours per week year-round in order to make a two bedroom apartment at Fair Market Rent affordable. In order to afford the FMR for a two-bedroom apartment with child support payments after a 50% garnishment, an obligor takes home about $4.00 an hour or $640 a month when paid California minimum wage. With a child support obligor that works a regular full-time job at minimum wage, $192 in monthly rent is the suggested amount, while the FMR for a one-bedroom is $942. According to this website (http://www.alllaw.com/calculators/childsupport/california/default.asp), if the obligor has no other child support debts, earns California minimum wage working 40 hours a week, has no benefits, and the custodial spouse does not work, the expected payment is closer to $320.

[edit] Court services

Many people are now claiming that requiring non-custodial parents to pay child-support creates jobs to sustain the divorce industry, because the amount of child support a state collects generates federal funding back to the state. They point out that family court judges earn $90,000 to $160,000 per year (cf. p. 1 table)[9] and each judge requires a staff. One association claims the industry consists of "60,000 professionals includes line/managerial/executive child support staff; state and local agencies; judges; court masters; hearing officers; government and private attorneys; social workers; advocates; corporations that "partner" with government to provide child support services and private collection agencies."[10]

The availability of federal funding for the administration of child support programs under Title IV-D of the Social Security Act, and the mandate that states contribute matching funds, has led a number of for-profit corporations and privately-held concerns to market their services to state and local agencies. Such offers range from consulting to payment processing and full-service enforcement of support orders. The presence of a large and lucrative private-sector presence in a human services field has created a revolving door climate in which state program directors are often enticed away from public service.

In the United States, state courts typically maintain a child support division - essentially an accounting department recording amounts owed and paid. Some maintain that because the county clerks responsible for record keeping are not certified accountants, inaccuracies concerning child support payments are common. Some people also claim that outside auditors do not monitor the accuracy of child support reports. In many counties, like Illinois’ Cook and Kane counties, the division audits themselves. However other jurisidictions adopt different methods - for example, in 2003 independent auditors reviewed and audited the Child Support Enforcement Agency of Hawaii. The state of Texas has also conducted such an independent audit[11]. The Clark County, Nevada district attorney's office has also been independently audited[12] (in 2003) regarding child support payment collections. And also in 2003, the state of Maryland recommended[13] outside audits on its five metro child support enforcement operations.

While the county's reports are the official record keeper [14], the state also have their support reports[15],cancelled checks with relevant support orders is all the evidence needed to prove your claim.

[edit] Appointment of counsel for defendants facing jail

The issue of whether a defaulted child support obligor who is facing jail at an enforcement hearing is entitled to an appointed attorney has been addressed by numerous state and federal courts.

Every court to address the issue since the United States Supreme Court's ruling in Lassiter v. Dept of Social Services, 452 U.S. 18 (1981) has held that appointed counsel is required if the obligor's physical liberty is at stake. In March, 2006, the Supreme Court of New Jersey, for example, upheld this principle in the case of Anne Pasqua, et al v. Hon. Gerald Council, et al[16]. As of August 2006, only three states (New Hampshire, Pennsylvania, and Virginia) do not reliably appoint attorneys in enforcement proceedings. Court challenges are pending in Pennsylvania and New Hampshire.

The right to a jury trial in such criminal cases is abridged, as the defendant will most likely be charged with non-support, a misdemeanor in most jurisdictions. The judge can also hold the obligor in contempt of court and incarcerate the person for an unspecified time, presumably till the balance is brought up to date. Obviously, it is impossible for someone in jail to pay child support. Therefore, these laws clearly are for show and do little to actually increase payments.

[edit] Paternity Fraud and Child Support of Not-adopted Non-biological children

Main article: paternity fraud

In many cases, the presumed paternity of a child turns out to be wrong. This may be due to a woman having multiple partners at the time of conception and mistakenly naming the wrong father. Or it may be a woman intentionally lying by knowingly naming someone as the father who could not possibly have been the father.

In cases of paternity fraud, there are three potential victims: the defrauded man, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child.

In some jurisdictions, there is limited opportunity to legally challenge the assumption of paternity by limiting the amount of time allowed to challenge paternity, or by allowing women to claim paternity in nearly anonymous conditions. Such is the case in the American state of California.

In many cases, even if paternity fraud was proven through DNA testing, the person presumed to be father is still liable for child support. In most jurisdictions the courts have declared the male who acts as the child's father to be the father through the equitable operation of an estoppel. Once the child has been declared to be a son or daughter and has lived with the man for a period of time, the court may cloak the putative father with all of the obligations of parenthood letting the biological father, "off the hook" so to speak.

Even if paternity if proven false and the presumed father spent no time with the child (or was even aware of the existence of said child), once the court determines a man is the child's father and the deadline for challenging paternity (which can be as little as 30 days) has passed, a man can still be liable for child support. This happened to a man in Florida who was named as the father of a "daughter" that he never even knew about until she was 11 years old. Despite DNA results that show the girl wasn't fathered by him and despite having an affidavit from the girl's mother -- a former girlfriend from 1990 -- saying he's "not the father", Florida demanded that he pay $305 a month to support the girl, as well as the more than $10,000 already owed. He spent a night in jail because of his delinquent payments. [5]

[edit] See also

[edit] References

  1. ^ http://www.acf.dhhs.gov/programs/cse/new/csr9701.htm#9701c
  2. ^ http://www.state.tn.us/humanserv/Child_sup_revoke.htm
  3. ^ http://www.oag.state.tx.us/child/faq.shtml
  4. ^ http://www.ncsl.org/programs/cyf/briefak.htm
  5. ^ http://kids4kids.com/crcnyc/nycases.htm
  6. ^ Child Support Enforcement FY 2003 Preliminary Data Report
  7. ^ Social Security Act §458
  8. ^ NLIHC: National Low Income Housing Coalition
  9. ^ The Survey of Judicial Salaries, Volume 29, No. 1
  10. ^ NCSEA
  11. ^ Issue Brief: Accurately Evaluating State Child Support Program Performance
  12. ^ http://www.lasvegassun.com/sunbin/stories/text/2003/dec/12/516011655.html
  13. ^ [1][dead link]
  14. ^ Circuit Court of Cook County - Rules and Orders
  15. ^ On-Line Services
  16. ^ http://www.dpdlaw.com/notable.htm

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