The Child Support Web

Can a Man Be a Father AND Have Child Support Reimbursed?

jverner@childsupportweb.com — 2008-01-25T08:49:59-06:00

This is the case of the crocodile tears, which Wikipedia defines as "false or insincere weeping, a hypocritical display of emotions."

A little girl believed a man was her father. She loved him, and he said he loved her, even after he and the mother divorced. But the man was willing to tell the little girl he was not her father if that would get him out of paying child support.

The facts are simple: The man and his wife married in 1991. They separated in 1994 but reconciled in mid-1996. The child was born in February 1997. (Don't you think this timing raises a paternity question?)

The couple eventually divorced in 1999. The mother had custody of the child. The man claimed that in 2003, the mother told him he was not the father. The man said that in 2004, he took the child for genetic testing which proved he was not the father. The man kept this information to himself until 2006, when the mother requested the court to raise child support.

The man told the court that he was "reluctant" to bring up the paternity issue. However, he "had no choice, but to raise the issue in court." So he asked the court to force the mother to disclose the biological father's identity and make her repay all child support she had received, retroactive to the child's birth.

But the man wasn't completely heartless. He told the court that he wanted to continue to have a close relationship with the child, including spending more time with her. He even asked the court to appoint a mental health professional "to assist the parties in addressing paternity issues."

What a guy.

The court refused the father's request for a declaration of non-paternity. The court observed that the man was the only father the child had ever known, that their relationship was close, and that the child's world would fall apart "like a house of cards" if she learned the man was not her father.

Gestational Carrier Allowed to Keep Child Support

jverner@childsupportweb.com — 2008-01-10T16:44:16-06:00

In 2006, the Superior Court of Pennsylvania rendered a decision (called J.F. v. D.B.) against a woman who carried the eggs of another woman after fertilization by a sperm donor. There were several parties involved in the case: The sperm donor and his wife, the egg donor, and the gestational carrier. In short, the gestational carrier changed her mind about keeping the triplets she bore. The trial court agreed with her, so the sperm donor began paying child support.

This decision seemed especially egregious to the sperm donor and his wife. They had paid the gestational carrier a fee of $20,000.00 plus medical expenses, travel expenses and life insurance for the duration of the pregnancy.

The sperm donor and his wife appealed, eventually prevailing. The appellate court ruled against the gestational carrier. The court remanded the case to the trial court for further proceedings.

Although the sperm donor and his wife did receive the children, financially the case just got worse. The sperm donor petitioned the trial court to require the gestational carrier to reimburse him for the child support he had paid her during the appeal. According to the Pittsburgh Post-Gazette, the amount of child support equaled $48,000. But the trial court refused, and on January 3, 2008, the Superior Court of Pennsylvania agreed with the trial court. The court reasoned that the money was for the benefit of the children, not the gestational carrier, so that it would be inappropriate to require its return.

The Child Support Protection Act of 2007

jverner@childsupportweb.com — 2008-01-03T09:56:56-06:00

In 2005, Congress passed an act called the Deficit Reduction Act. The Act went into effect on October 1, 2007. On that date, the federal government began charging $25 per child support case brought by each state. The purpose of the fee is to help reduce the federal deficit.

We've previously written about this Act in our postings Reducing the Federal Deficit With Child Support Fees and Connecticut Governor Rescinds Child Support Fee.

Under the law, the $25 fee could be subtracted from child support recovered, paid by the noncustodial parent, or paid by the state. This fall, single parents around the country began receiving letters informing them that their states had opted to take the $25 out of child support collected.

As you might imagine, this new $25 fee angered many custodial parents. But the fee might not last long. Rep. Jim McDermott (D-WA) and Sen. John Rockefeller (D-WV) introduced the Child Support Protection Act of 2007 into Congress. The purpose of the Act is "to repeal a provision enacted to end Federal matching of State spending of child support incentive payments." As of this writing, the Act has been referred to committee in both the House and the Senate.

Sloppy Thinking, Sloppy Reporting on Child Support Enforcement

jverner@childsupportweb.com — 2007-12-20T12:24:33-06:00

The Sheriff's Department of Flagler County, Florida, has launched an online database where anyone can search for active warrants - including child support warrants. In a story from the Daytona Beach news-journalonline.com, Mike McCormick of the American Coalition for Fathers and Children is quoted as saying that putting warrants online "could hurt children."

McCormick might well be right, but his example doesn't support his conclusion:

Parents can find themselves labeled as deadbeats, facing high legal bills and even jail time. And that can make it even harder for the parent to pay. More importantly, McCormick said, it can make it hard for the noncustodial parent to maintain important visitation schedules, which should be first on everyone's priority list.

This reasoning assumes that noncustodial parents who don't pay child support will be labeled as deadbeats, face high legal bills and jail time because their names appear on a list of warrants online. But it's the other way around: Noncustodial parents who appear on the Sheriff's warrants list are there because they've already failed to pay child support, incurred legal fees and are now subject to arrest.

The story also claims that an Illinois man who failed to pay child support of $82 per week wound up with a $1.1 million debt after $100 per day penalties were added to his child support. In fact, what happened was that the man faithfully paid his child support, but his employer never turned the money over to the state. The employer, not the man, was the one fined. A link to the case can be found in our December 4 blog post.

Child support is a sensitive subject. It is important to study it carefully and not to pass on inaccurate, inflammatory information.

Dads Against Discrimination Founder Sues Over Child Support

jverner@childsupportweb.com — 2007-12-13T16:52:49-06:00

Don Chavez is a New Mexico father who founded Dads Against Discrimination (DAD). DAD says that it "empowers fathers to take charge of their families through father custody options." For the past fifteen years, Mr. Chavez has advocated for fathers' rights.

But the Albuquerque Tribune reports that now Mr. Chavez is personally embroiled in a legal dispute. He and his wife, Quillon Dayton-Chavez, have separated. Ms. Dayton-Chavez has filed for divorce. Mr. Chavez, a social worker, has the couple's two children, aged three and six, all but three weekends per month. Mr. Chavez has adjusted his work schedule so that he can care for the children.

Mr. Chavez has filed suit to challenge New Mexico's child support guidelines because, he says, they are unfair.

Chavez said he is going to bat for parents who have custody of their children less than 25 percent of the time and must pay full child support to the custodial parent.
He has asked the court to develop new guidelines that will recognize that both parents must pay for the needs of the child and that their share should be based on their ability to pay.

Although it's unclear what relief the court could grant him - neither Mr. Sanchez nor his wife has asked the other for child support - Mr. Sanchez might have a point about New Mexico's child support law. In a recent Santa Fe New Mexican editorial, Josh Gonze (who identified himself as a happily married father of two) and family law attorney David Standridge explained that New Mexico's child support guidelines have no ceiling: "If the payer's gross income exceeds $8,300 a month, child support is 11 percent of gross income, rising to infinity."

Messrs. Gonze and Standridge argue that child support payments in excess of a child's actual needs really is alimony in disguise. Because there are no limits on child support in New Mexico, litigation ensues to try to show high income on the part of the other parent. If there were a ceiling, this problem would be avoided as it is in other states.

Lawsuits attacking the child support system don't often have good results. Mr. Chavez might be better off approaching the legislature. But we'll keep an eye on the case.

Update on the Case of the Colonels

jverner@childsupportweb.com — 2007-12-10T12:23:55-06:00

We wrote earlier about the Case of the Colonels. Col. Scott Carlson denied paternity of a child nine years after he began making child support payments to a woman not his wife. When the domestic relations office requested a blood test, Col. Carlson sent his friend, Col. Bruce Adkins, to take the test for him.

Apparently neither of the Colonels thought the domestic relations staff would remember what Col. Carlson looked like, even though he had been there only one month before he sent Col. Adkins in his place.

They were wrong. Both were arrested. And it appears that Col. Carlson is a slow learner. According to pennlive.com, a local district judge ordered Col. Carlson to appear because Col. Carlson was $12,000 in arrears in his child support. Col. Carlson failed to show up, so he was arrested. He bonded out only after paying the $12,000.

Stay tuned.

Court Requires Child Support From Personal Injury Settlement

jverner@childsupportweb.com — 2007-12-07T20:34:59-06:00

We ordinarily think of child support as periodic payments for the support of a child made by the noncustodial parent to the custodial parent. By "periodic," we mean that child support is paid at regular intervals in a specific amount. The object is to provide a reliable income stream to the custodial parent for the benefit of the child.

What happens, then, when the noncustodial parent receives a one-time lump sum of money? Should a unique receipt of money be considered income for child support purposes?

In a recent Indiana case, the court of appeals held that one-time payments should be included in child-support calculations. The father paid $130 per week until he was hurt while employed with a railroad. The court reduced his obligation on a temporary basis to $73 per week. Then, the father settled his lawsuit against the railroad for $1 million which resulted in a one-time payment to the father of $707,786.82.

The father "argued to the trial court that the settlement money should not be imputed to him as regular income, as it was a one-time disbursement. Specifically, [the father] highlighted that the settlement money was to be used to pay his necessary living expenses for the remainder of his life because his injuries . . . left him permanently disabled and unable to work."

But the court disagreed: The court raised the father's child support to $193 per week plus uninsured medical expenses.

Employer Fined for Failure to Pay Withheld Child Support

jverner@childsupportweb.com — 2007-12-04T21:05:21-06:00

The Illinois Withholding Act not only requires employers to deduct child support from employee wages, but employers must remit those funds to the state. If an employer fails to pay withheld child support payments to the state, the employer is fined $100 per day.

An Illinois employer recently found that the Withholding Act means just what it says. This employer repeatedly failed to remit withheld child support payments. The trial court followed the statute by fining the employer $100 per day - for a total of $1,172,100.

The employer complained to the Illinois Supreme Court that the fine was unreasonable - a substantive due process argument. But the Court was unpersuaded. The judgment against the employer was affirmed.

Maryland Court of Appeals Teaches Contempt of Court 101

jverner@childsupportweb.com — 2007-11-30T17:42:42-06:00

In a lengthy opinion released November 8, 2007, the Maryland Court of Appeals detailed how a custodial parent must proceed to obtain a contempt finding - and a sentence of incarceration - against the noncustodial parent when child support is in arrears.

Although the law of contempt varies slightly from state to state, the Maryland opinion sets forth the basics of contempt of court that apply in any jurisdiction. For example, the Court discussed the differences between direct and constructive contempt and civil and criminal contempt: When a private party asks the Court to jail a noncustodial parent to induce that parent to pay child support, the remedy is civil, constructive contempt. When the state wants to punish a noncustodial parent for failing to pay child support, the remedy is constructive, criminal contempt.

The opinion came about because two noncustodial parents were sent to jail under conditions that they could not meet prior to incarceration. Under Maryland law, a person cannot be incarcerated unless the person convinces the court that the person lacks the ability to pay the child support arrears in a lump sum. If the testimony is credible, then the court must not impose a condition that the noncustodial parent cannot meet.

The Court struck down "a practice" that "has developed in the Circuit Court for Baltimore City of committing fathers found in contempt for failure to comply with child support orders to Dismas House or the Baltimore City Detention Center until such time as they obtain employment through a work release program or satisfy other conditions they are unable to meet in time to avoid the incarceration."

Dismas House, the Court explained, "appears to be a national movement, named for St. Dismas, the penitent thief who was crucified with Christ. In many communities throughout the country, including Baltimore City, churches or other non-profit organizations have established Dismas House group homes for prisoners, to provide a transition back into community life."

Incarceration to Collect Child Support: Why?

jverner@childsupportweb.com — 2007-11-28T18:20:34-06:00

If a noncustodial parent does not pay child support, that parent can be held in contempt of court or even criminally prosecuted. But imprisoning a parent costs the taxpayers money and really doesn't solve the problem. It's true that some noncustodial parents won't pay, no matter what. But most noncustodial parents would pay if they were regularly employed or had a better job.

Consider this story from South Carolina where Channel 7 interviewed a deputy sheriff named Traxler:

“Family court wants to see you again on October 15th at 8:30 in the morning about your child support,” said Traxler to a man he says owes thousands in child support payments.
And if he doesn’t show up Traxler says he’ll likely have a warrant issued for his arrest.
“That was a good one there $28,348.30,” said Traxler as he looked over the amount the man owed.

How does hauling this man into court help the custodial parent receive any substantial amount of money?

A better approach is the one pioneered by Cynthia Stevens Kent, a state district court judge in Texas. Judge Kent requires nonviolent offenders to come to a Day Reporting Center. There they receive job training and help finding a job. According to the Tyler Morning Telegraph, Greg Parham, the program director, said:

"We've got about a 90 to 95 percent employment rate," Parham reports. "Most of those are people coming out of jail who don't have jobs to go back to. One of the really gratifying things about this position is being able to see someone so excited about getting a job. They feel a lot better about themselves."

A lot of the failure to pay child support is caused by lack of a decent job plus getting in the hole so deep that there's no realistic way out. If we helped noncustodial parents get jobs, custodial parents would receive more in child support and the taxpayers would save money, too.

International Child Support Enforcement Treaty Approved

jverner@childsupportweb.com — 2007-11-27T12:59:06-06:00

Representatives from sixty-eight countries have negotiated a new international treaty that will facilitate the collection of child support when a noncustodial parent lives in a different country than the custodial parent and child. The Convention is described in a news release from the United States Embassy to The Netherlands. For background, see the website for the Hague Conference on Private International Law.

So what does the Convention mean for the United States? The International Herald Tribune explains:

The new convention calls for states [countries] to exchange information and force parents to pay support with measures such as withholding wages, pension payments or tax refunds and making deductions from welfare payments. It says denying or revoking driving licenses could help.

In short, custodial parents who are United States residents will be able to use these remedies - already widely available within the United States - to collect child support from noncustodial parents living abroad.

To become effective in the United States, the Convention must be approved by a two-thirds vote of the United States Senate, per Article II, Section 2, clause 2 of the U.S. Constitution.

Kansas Court Refuses to Allow Father to Pay Child Support

jverner@childsupportweb.com — 2007-11-25T22:39:27-06:00

Most of the child support cases we read come about when a man refuses to pay child support. But on October 26, 2007, the Kansas Supreme Court, in a split decision, ruled that a man who wants to pay child support can't because under Kansas law he could not be the legal father even though he was the biological father.

Here are some excerpts from the opinion:

The mother, S.H., is an unmarried female lawyer who wanted to become a parent through artificial insemination from a known donor. She was a friend of the donor, D.H., an unmarried male nonlawyer, who agreed to provide sperm for the insemination. Both S.H. and D.H. are Kansas residents, and their oral arrangements for the donation occurred in Kansas, but S.H. underwent two inseminations with D.H.'s sperm in Missouri.
D.H. accompanied S.H. to a Missouri clinic for the first procedure and provided the necessary sperm to medical personnel. The first procedure did not result in a pregnancy. D.H. did not accompany S.H. to Missouri for the second procedure. Instead, he provided the sperm to S.H., and she delivered it to the Missouri physician responsible for the insemination. The second procedure resulted in S.H.'s pregnancy and the birth of the twins.
There was no formal written contract between S.H. and D.H. concerning the donation of sperm, the artificial insemination, or the expectations of the parties with regard to D.H.'s parental rights or lack thereof.

After the children were born, the mother sued the father to terminate his parental rights. She alleged that he "was morally, financially, and emotionally unfit to be a father."

In the end, the mother won because the agreement with the father was not in writing. According to Kansas Statutes Annotated 38-1114(f), "The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman."

Update of Roe v. Wade for Men

jverner@childsupportweb.com — 2007-11-21T22:33:21-06:00

On September 10, 2007, we reported that Dubay v. Wells was being argued in the United States Court of Appeals for the Sixth Circuit. Mr. Dubay impregnated a woman who chose to bear his child - and to seek child support. Mr. Dubay brought suit under the civil rights statute, 42 U.S.C. § 1983. He claimed that permitting a woman, but not a man, to terminate a pregnancy violates the equal protection clause of the United States Constitution.

Mr. Dubay lost in the trial court, but he appealed his case to the United States Court of Appeals for the Sixth Circuit. One November 6, 2007, the Sixth Circuit issued its opinion, which affirmed the judgment of the trial court: Mr. Dubay not only lost, but he was ordered to pay the attorney's fees of his ex-girlfriend and the State.

The gist of Mr. Dubay's claim was that the State of Michigan denied him the equal protection of the law "by denying men, but not women, 'the right to initiate consensual sexual activity while choosing to not be a parent.'"

The Sixth Circuit rejected Mr. Dubay's arguments that Michigan denied him equal protection "by affording mothers a right to disclaim parenthood after engaging in consensual sex (i.e., through abortion) while denying that right to fathers." Mr. Dubay also argued that Michigan denied "men equal protection by making it easier for a woman to place a child in adoption or drop the newborn off at a hospital or other social service agency."

Finding neither argument persuasive, the Sixth Circuit affirmed the District Court's decision.

A Letter From Jail About Child Support

jverner@childsupportweb.com — 2007-11-14T09:47:07-06:00

In a letter to the editor published in the Richmond, Indiana, Palladium-Item, a prisoner in the Wayne county Jail passed on the thoughts of some of his fellow inmates about child support. Here's an excerpt from his letter:

• If our fine state is willing to send a parent that is behind but is currently paying to jail, who benefits?
• What about the custodial parents who become accustomed to receiving weekly payments that now stop while we -- the public -- become responsible through public assistance?
• Does the public that is now paying to house the "deadbeat parent" in jail benefit? At a minimum of $30 a day, which I'm sure is conservative, it will cost us $10,800 to house one person a year. If a person is two years at $20,000 and given a two-year sentence, they are now $40,000 behind and the public has paid almost $22,000 to house them in jail.
• Do the children that have lost a parent for that two years and get to say, "My dad can't take me to Cub Scouts because he's in jail," benefit?
• Do employers who lose employees because they are now in jail benefit?
Many employers won't hire a person if they have a felony. Some cases I can understand there is no choice but to prosecute, but many there should be an alternative.
The state cannot even guarantee that these parents are at least sent to a work-release program where they would be covering the cost of their incarceration and paying support.
Something needs to be done, or do we just need prosecution and prison statistics?

Perhaps the Wayne County authorities should check out programs such as Sheriff Proffitt's work-release program in Chesterfield County, Virginia, or the Fatherhood Program in Sumpter County, Georgia.

What Do You Do With An Obligor Who Is $651,000 In Arrears?

jverner@childsupportweb.com — 2007-11-10T01:04:19-06:00

On November 8, 2007, wftv.com reported that Orange County, Florida, deputies arrested Robert Abraham on a felony warrant for failing to pay a whopping $651,000 in child support. According to the report, Mr. Abraham was the "first father ever charged with a felony for failing to pay child support in Orange or Osceola counties."

According to the children's mother, she and Mr. Abraham were married for nearly 16 years. In 1991, Mr. Abraham abandoned the family, leaving the mother to raise three children, aged 3, 6 and 9.

Mr. Abraham was ordered to pay as much as $4,000 per month in child support over the years following the family's breakup. Sometimes Mr. Abraham paid; other times he didn't pay. He was adjudged in contempt of court seven times and jailed from time to time.

It's clear that Mr. Abraham abandoned his family. But what should the system do to him? One could argue that it wastes taxpayer dollars to keep him in jail. But if one follows the logic of this argument, one could argue that it wastes taxpayer dollars to keep burglars in jail.

What makes people question the appropriateness of criminal prosecution for failure to pay child support is the perception that the noncustodial parent has not hurt society at large - as in the case of the burglar - but only his own family. But when Mr. Abraham abandoned his family, the taxpayers and the community stepped in to help raise his children. Perhaps deterrence and vindication warrant keeping Mr. Abraham in jail.

Non-Father's Failure to Support Conviction Reversed

jverner@childsupportweb.com — 2007-11-02T13:46:24-05:00

In 2000, David Salazar and Shannon McClure married. Within months, they separated. In 2001, Ms. McClure had a child. Mr. Salazar was not the father: He and Ms. McClure had not been intimate for fourteen months prior to the child's birth. Ms. McClure asked the hospital not to list Mr. Salazar as the child's father, but the hospital listed him anyway.

The Missouri Division of Child Support Enforcement (DCSE) served Mr. Salazar with an administrative "Notice and Finding of Financial Responsibility," stating that Mr. Salazar was required to support the child because he was the child's father. Both Mr. Salazar and Ms. McClure told DCSE that Mr. Salazar was not the father. DCSE ignored them and obtained an administrative order requiring Mr. Salazar to pay child support. Mr. Salazar did not attend the administrative hearing, so the order was signed by default.

Later, Ms. McClure applied for public assistance. DCSE then filed criminal nonsupport charges against Mr. Salazar. At the criminal trial, Mr. Salazar and Ms. McClure testified that Mr. Salazar was not the child's father. Nevertheless, the trial court convicted Mr. Salazar of criminal nonsupport. The trial court held that the administrative order constituted "legitimization by legal process," which is required for a conviction for criminal nonsupport.

The Missouri Supreme Court overturned the conviction in a brief opinion. The Court held that a default administrative order for child support does not constitute "legitimization by legal process." In fact, no court ever had found that Mr. Salazar was the child's father. Although the law presumed him to be the father because the child was born during Mr. Salazar's marriage to Ms. McClure, that presumption could not support a finding of legitimization sufficient to support a criminal conviction.

Title Companies as Child Support Collectors?

jverner@childsupportweb.com — 2007-10-31T10:18:36-05:00

The Central Valley (California) Business Times has published a puff piece headlined "Title companies say they are a prime collector of child support." According to the article, the California Land Title Association reports that title companies collected more than $49 million in delinquent child support payments in the last fiscal year and more than $320 million since July 2003.

The Association's Executive Vice President, Craig Page, continued: “Not only do title insurers undertake an exhaustive search of public records to protect property owners, they coordinate with government agencies to identify and recover delinquent child support, spousal support and tax payments that would otherwise have gone uncollected.”

To hear Mr. Page tell it, title companies are out there on the front lines helping custodial parents collect past-due child support. But here's how it actually works: Past-due child support becomes a lien on real property. In some states, the lien can even attach to a homestead. When the real estate is sold, the title company issues an insurance policy that the seller actually owns the property and also sets out the liens against the property. If there is an outstanding lien - including a child support lien - then the purchaser or lender requires that the lien be released as part of the property sale so that the purchaser receives unencumbered title.

Although title companies uncover child support liens that must be paid upon selling property, they do this as part of their business, not out of the goodness of their hearts. It's a bit disingenuous to claim that title companies are leaders in child support enforcement.
If I am counting correctly, it took the Treasury Department a bit more than one year and eight months to implement a statutory change.

Child Support Tax Refund Offset Rule Amended

jverner@childsupportweb.com — 2007-10-24T10:09:11-05:00

One of the methods a state can use to collect past-due child support is to seize tax refunds through the Federal Tax Refund Offset process. In short, if a noncustodial parent owes back child support, this process allows any tax refund due to that parent to be taken and offset against the child support arrearage.

Until 2006, federal tax refund offsets were available only to collect child support for children who still were minors or for children who, while minors, were determined to be disabled. The Deficit Reduction Act of 2005 changed this process to permit tax refund offsets for all minors after they reached majority.

President Bush signed this Act on February 8, 2006, but our federal government moves slowly. It was only on October 22, 2007, that the Treasury Department's Financial Management Service amended its rules to allow the changes in the law to be implemented. Said the Treasury:

The Deficit Reduction Act of 2005, Public Law 109-171, amended the Social Security Act to remove a restriction on the collection of past-due support obligations by tax refund offset. Prior to this change, tax refund offset to collect past-due support obligations being collected by States on behalf of an individual was only available if the support was due to or on behalf of a qualified child (a child who is a minor or who, while a minor, was determined to be disabled). The amendment to the law allows for the collection of past-due support by tax refund offset on behalf of individuals who were owed child support as minors but reached the age of majority without having collected the full support amount owed to them. The changes to this rule conform to the statutory change by removing the definition of Qualified child and by deleting the requirement that past-due support be owed to or on behalf of a qualified child to be eligible for collection by tax refund offset.

If I am counting correctly, it took the Treasury Department a bit more than one year and eight months to implement a statutory change.

If You Give a Man a Job, Will He Pay Child Support?

jverner@childsupportweb.com — 2007-10-23T15:26:07-05:00

There are many ways to collect child support. One of the most draconian is to jail a noncustodial parent for failure to pay. But officials in Chesterfield County, Virginia, "tried to look for a better alternative" than just jail, Sheriff Dennis L. Proffitt told WCAV Channel 19. "Because it's kind of like chasing your tail, if you're in jail for not paying child support, you're in jail and can't work."

So the Sheriff and the local judges came up with a work-release program.

Parents found guilty of contempt for not paying child support are allowed to serve their 12-month jail terms on work release, if they hold a job and begin paying the money they owe through their earnings. If they don't already have a job, the Sheriff's Office finds one for them. "We work with several different employers around here in trying to get them working," Proffitt said. "Sometimes it's a fast-food place, but the work is honorable."

Once the noncustodial parent is paid up and released, hopefully he will keep that job and won't fall behind again.

In Sumpter County, Georgia, Child Support Services is encouraging noncustodial parents with child support arrearages to contact them. The Americus Times-Recorder reports that those who are willing to work but don't earn much "will be referred to the Fatherhood Program, which provides low-income parents who owe child support with counseling and training at state technical colleges so they can increase their earning power."

Sometimes noncustodial parents refuse to pay out of spite. But other times they can't keep up with payments because work doesn't pay enough or dries up. Sheriff Proffitt and his colleagues in Georgia are helping noncustodial parents to work so that they can pay their child support and not cost the taxpayers money by languishing in jail.

Policy Studies Moves to Dismiss Federal Suit

jverner@childsupportweb.com — 2007-10-17T10:04:56-05:00

In June, we reported on a lawsuit filed in federal district court in Nashville, Tennessee, by a man whose criminal nonsupport conviction was overturned by the Tennessee Supreme Court. The plaintiff, Bryan Cottingham, sued a Colorado company called Policy Studies, Inc. In 2002, the Tennessee Department of Human Resources outsourced its child support collection work to Policy Studies . A Policy Studies attorney then began pursing Mr. Cottingham to collect child support arrearages.

The case is set for trial on July 15, 2008. But the case may never be tried. It is common in all sorts of lawsuits for the defendant to file a motion to dismiss. There is a motion to dismiss pending in this case. If that motion is granted, then Mr. Cottingham is out of court.

Mr. Cottingham's complaint alleges that Policy Studies is an arm of the State of Tennessee. That's one of the bases for federal court jurisdiction over his lawsuit - he says that Policy Studies violated his civil rights.

When a defendant moves a court to dismiss a lawsuit, the defendant must accept, for purposes of that motion only, every allegation in the lawsuit as true. Policy Studies took advantage of this rule by admitting, for purposes of the motion to dismiss, that it is an arm of the State of Tennessee. According to the Eleventh Amendment to the United States Constitution, states are immune from suits brought against them if the plaintiff seeks money damages. Because Mr. Cottingham says that Policy Studies is an arm of the state, then Policy Studies claims that it should be immune, too.

Mr. Cottingham's response to the motion isn't due until November 12, 2007. We'll continue to monitor the case.

Collecting Child Support From a Retirement Plan

jverner@childsupportweb.com — 2007-10-11T20:17:58-05:00

Retirement plans ordinarily are exempt from execution on a judgment. In other words, if a person obtains a court order that another person pay him money, the obligation to pay cannot be enforced against a retirement plan. But in 1974, Congress passed the Employee Retirement Income Security Act ("ERISA"). ERISA "federalized" the law governing retirement plans.

Among other things, ERISA states that retirement plans are not exempt from enforcement of a judgment for child support. Thus, if a noncustodial parent has a retirement plan, but is behind in the payment of child support, it may well be possible to force the retirement plan to pay the back child support. For this to be done, the custodial parent must obtain a special type of court order called a Qualified Domestic Relations Order (a "QDRO").

Most spouses who have gone through a divorce in which retirement benefits were divided have heard of a QDRO. A QDRO is used to divide retirement benefits subject to ERISA. But QDROs can be used to collect child support. In one example, Blue v. UAL Corporation, a custodial parent collected over $200,000 in back child support from her airline-pilot ex-husband's retirement plan. The court also allowed collection from the retirement plan of the attorney's fees incurred in collecting the back child support.

ERISA law, and the law governing QDROs, is complex. However, if a noncustodial parent who is in arrears on child support has any retirement benefits, then proper application of ERISA might provide an avenue to collect back child support directly from the retirement plan.

Another Successful Child Support Amnesty Program

jverner@childsupportweb.com — 2007-10-05T09:16:39-05:00

Yesterday a reader disagreed with my post, Child Support Felony Conviction for $2,846 Owed. Cheryl, who blogs at Questforchildsupport, said that the noncustodial parent "only had to pay 35 bucks a month, that's 1800 a year, so he didn't pay for TWO years...why wouldn't that be punishable by criminal proceedings?"

The point is not whether criminal proceedings could have been brought against the man, but whether they should have been brought. It's a waste of resources to prosecute a noncustodial parent for this amount of money when there are other ways to collect it.

I've written before that Child Support Amnesty Programs Get Results. Today's inbox brings news of another successful program, this one in Bell County, Kentucky. The story says that according to local child support officials, "trying to force parents to pay up wasn't working." So they offered an amnesty. They promised not to arrest people with outstanding warrants if they would just come in and pay something toward their child support arrearages.

Child support officials reported that they received a huge response. One parent paid his entire $9,000 arrearage. Another paid only $100, but that's $100 more than previously had been paid.

Collecting this child support did not require a district attorney to present the case to a grand jury, obtain an indictment, try the case before a jury of twelve who no doubt had better things to do, and take up court time that could have been used on other cases. Bell County came up with a better approach.

Child Support, DNA and the Case of the Colonels

jverner@childsupportweb.com — 2007-10-04T16:01:23-05:00

We've previously warned, "Get a DNA Test Fast if You Think You're Not the Dad!" But you're supposed to use your own DNA for the test - especially if you are an Army Colonel being groomed for higher command at the Army War College.

Here's what happened, according to WGAL.com: Col. Scott Carlson had been making child support payments for nine years to a woman who was not his wife. When the woman requested an increase in child support, Col. Carlson went to the domestic relations office to deny paternity. The domestic relations office told him he would have to prove that he was not the father by submitting a DNA sample.

Knowing full well he was the father, Col. Carlson talked his buddy and fellow student - Col. Bruce Adkins - into submitting his DNA instead. Col. Adkins went to the domestic relations office about a month after Col. Carlson had been there. The two got caught when the domestic relations office staff noticed that Col. Adkins didn't look much like Col. Carlson. Both men are facing criminal charges.

Colonel is a very high rank, only one step below general. Just think, these two jokers might have wound up being generals if they weren't convinced they were twins.

Child Support Felony Conviction for $2,846 Owed

jverner@childsupportweb.com — 2007-10-03T13:45:04-05:00

One of the remedies for collection child support is criminal prosecution. But any reasonable prosecutor will tell you that indicting a person for failure to pay child support is an extreme measure that should be used in only the most egregious cases, like this one. That's why we were shocked to read of a seven-count felony jury conviction in Wisconsin - for failure to pay $2,846 in back child support!

But Dane County Circuit Judge James Martin displayed the common sense that Dane County prosecutor Paul Humphrey clearly lacked. According to the Wisconsin State Journal, the noncustodial parent told the court that he "made a mistake" when he fell behind in his support after a divorce and that thousands of dollars worth of medical bills for his stepdaughter led to bankruptcy. He had caught up with his child support prior to trial. Judge Martin interrupted him: ""You don't have to say anymore."

The Judge then lambasted Mr. Humphrey:

"Somewhere along the line, we've lost sight of what child support enforcement is supposed to be about; and that is to get payment to the children, payment to the parents," Martin said. "This case morphed from that into a prosecution for felonies, not because it was needed to get payment, but because we could get seven felony convictions. We could destroy, potentially destroy, this person financially for the rest of his life."

Because of the conviction, Judge Martin had to pronounce some sentence upon the noncustodial parent. He fined the parent less than $100 and ordered him on probation for the eight months remaining until his daughter turned 18.

Child Support and Contempt: A $100,000 Fine

jverner@childsupportweb.com — 2007-10-02T22:49:24-05:00

In this Wisconsin case, the divorce decree required the ex-husband to produce his personal and corporate tax returns to the ex-wife each year by May 12. The ex-husband failed to produce these documents at first although he did produce them eventually, before a contempt hearing scheduled at the request of the ex-wife. The trial court held the ex-husband in contempt, but the court of appeals reversed that holding. The Wisconsin Supreme Court reversed the trial court, holding that the essence of the contempt was that the ex-husband did not produce the documents in a timely fashion which would have allowed child support to be adjusted as the years passed.

The technical, legal question for the Wisconsin Supreme Court was whether the contempt was continuing in nature rather than completed in the past. In the latter event, the Court could not punish the ex-husband. But the Court held the contempt to be continuing so that the trial court's fine of $100,000 should be reinstated.

The moral of the story? Refusing to produce documents to delay child support adjustments can backfire in an expensive way.

Spousal Support Can Increase When Child Support Ends

jverner@childsupportweb.com — 2007-09-29T13:36:27-05:00

Ordinarily, there must be a material change of circumstances for a California court to modify spousal support. To qualify as a material change of circumstances, an event must not have been contemplated by the order to be modified. For that reason, a California Court of Appeal held in 1999 that termination of child support cannot be a material change of circumstances that would permit an increase in spousal support: Termination of child support was within the expectations of the original order.

But now there is an exception to the law. On September 26, 2007, Gov. Schwarzenegger signed SB 415. This Bill adds new section 4326 to the California Family Code. The new section states that "the termination of child support . . . constitutes a change of circumstances that may be the basis for a request for modification of spousal support."

The purpose of the law is to permit a court to increase spousal support once the children have graduated from high school or reached age 19. At that time, the former custodial parent's income would decrease because of the cessation of child support payments. According to a legislative analysis of the Bill, spousal support then could be increased "on the grounds that the termination of the child support has freed up resources that may, in the court's discretion, be appropriate for new or additional spousal support."

Texas Orders Post-Mortem Child Support

jverner@childsupportweb.com — 2007-09-28T19:36:58-05:00

For a long time, Texas law said that unpaid child support terminated on the death of the noncustodial parent. This year's Texas legislature dramatically changed this law by establishing a system for post-mortem child support.

Senate Bill 617 deleted the clause stating that a noncustodial parent's child support obligation terminates on that parent's death. The Bill added Texas Family Code section 154.016. This section allows a court to require a noncustodial parent to purchase and maintain a life insurance policy or annuity to pay the unpaid child support in the event that the noncustodial parent dies while child support is still payable.

The Bill also added Texas Family Code section 154.015. This section states that "the remaining unpaid balance of the child support obligation becomes payable on the date the obligor." But how is the balance determined? Section 154.015 directs the court to discount future child support to present value but then also to consider benefits to the child upon the obligor's death, such as life insurance. The court then decides whether the child support obligation has been satisfied. To the extent not satisfied, the child support obligation becomes a claim against the obligor's estate.

Taken together, these legislative changes operate to protect the child from a loss of child support occasioned by the untimely death of a parent. Texas Family Code section 154.015 applies only if the noncustodial parent died on or after September 1, 2007. The other parts of the statute apply to an order for child support issued at any time, even before the Act passed.

Connecticut Governor Rescinds Child Support Fee

jverner@childsupportweb.com — 2007-09-26T13:14:47-05:00

We've written before about the new $25 fee to be charged each year, beginning October 1, 2007, for collection of child support. The fee is imposed by the federal Deficit Reduction Act of 2005. The money goes to the federal government. The purpose of the fee is to help reduce the federal deficit.

Under the law, the $25 fee can be subtracted from child support recovered, paid by the noncustodial parent, or paid by the state. This fall, single parents around the country began receiving letters informing them that their states had opted to take the $25 out of child support collected.

As we noted, these letters have been greeted with shock and amazement. But Connecticut's governor has done the right thing. On Monday, September 24, 2007, courant.com reported that the Department of Social Services had decided to pass the fee along to the custodial parents. No sooner than the story hit, Governor Rell overruled the Department of Social Services and announced that the state would pay. The Department deserved today's courant.com editorial entitled "What Was DSS Thinking?"

The editorial goes on to say that most other states have elected to pay the fee directly to the federal government rather than force custodial parents to pay. We believe that statement is incorrect. Based on the number of news stories about the fee, we think it's the other way around.

Don't Overpay Your Child Support

jverner@childsupportweb.com — 2007-09-24T17:48:15-05:00

Most of the time, child support complaints center on the nonpayment or underpayment of child support. But once in a while, a noncustodial parent will overpay, or prepay, child support. We're not talking here about extra money for a band uniform or something like that, but the routine, month-by-month overpayment of child support.

In a recent Wyoming case, the father had intentionally paid $50 extra per month on his child support obligation. His object was to go ahead and get the child support paid off ahead of time. The court said that the father acted "with the best of intentions." When the mother requested an increase in child support, the father agreed. But the mother did not agree that the previously overpaid child support could be credited against the father's child support obligation.

Citing cases from a number of jurisdictions, the Wyoming Supreme Court agreed with the mother. The court said the father's job was to pay the child support set out in the divorce decree - no more, no less. In support of its decision, the court said: "Allowing an increase at one time and a reduction at another would simply lead to incongruity and disorder in the child support system."

How this would be so is unclear. The child support system is simply an information clearinghouse into which numbers are input. Perhaps the court's comment is meant to suggest that custodial parents are so irresponsible with money that prepaying child support is unwise.

Which Court for Child Support Enforcement?

jverner@childsupportweb.com — 2007-09-22T13:50:02-05:00

This recent story from West Virginia announced: "A federal magistrate in Charleston sentenced an Ohio man to five years probation on Thursday for failing to pay child support." But wait a minute - isn't child support a matter of state law? Isn't that why we have links to all fifty states and the District of Columbia on The Child Support Web?

The fact is that child support enforcement proceedings can be brought in either state or federal courts, or sometimes in both. The choice of courts depend on the type of relief sought and also on how much is owed.

The Ohio man sentenced in the West Virginia federal court had violated the federal Child Support Recovery Act. To be prosecuted under this criminal statute, a noncustodial parent must be at least one year behind in payments or $5,000 in arrears, and the child must live in another state.

States can criminally prosecute, too. For example, just last week a Texas court sentenced a man to two years in jail for failing to pay his child support.

Most child support cases are not criminally prosecuted. Courts have various civil remedies for attempting to collect child support. Only when there have been flagrant violations has the criminal law come into play.

Child Support Amnesty Programs Get Results

jverner@childsupportweb.com — 2007-09-15T11:15:09-05:00

We've written before about child support amnesty programs. Now we have some results to report from Ohio. A number of Ohio counties offered some sort of amnesty program in August, which is Child Support Awareness Month. Trumbull County was one of the Ohio counties offering an amnesty program.

Trumbull County actually offered two types of amnesty. The Special License Reinstatement Program restored drivers' licenses to parents who were delinquent on child support if the parents paid one full month of child support, paid some additional amount toward arrearages, and provided a withholding source such as employer information or a bank account.

The Limited Warrant Amnesty allowed parents to contact the Child Support Enforcement Agency to set up a hearing date on their past-due child support. With a hearing date set, outstanding child support warrants would be suspended so that a parent avoided the possibility of arrest.

The Child Support Enforcement Agency reported that the amnesty program was a success and will be repeated. Agency officials agreed to accept as little as one dollar toward payment of past-due arrearages under the Special License Reinstatement Program. Overall, 58 people participated in the amnesty program. The County collected $15,206 in past-due child support. No doubt, Trumbull County saved even more money than it collected by not having to pursue court proceedings against those who participated in the amnesty.

Privatization of Child Support Collection Opposed

jverner@childsupportweb.com — 2007-09-13T10:41:17-05:00

Last week, we wrote that the Circuit Court of Wayne County, Michigan, was soliciting bids from private companies to replace the county's Friend of the Court program, which has been responsible for child support collection. We expressed wariness of delegating a state's power to collect child support to a private company.

Although politics was not an emphasis of our story, the Detroit Free Press said that the privatization plan would be opposed by the American Federation of State, County and Municipal Employees (AFSCME), which represents Friend of the Court workers.

As it turns out, the privatization proposal has become a political football, but not for the public/private concerns we expressed. Instead, it has become a labor issue. Only a few days after the Circuit Court announcement, the Wayne County Commission voted 14-1 to oppose child support privatization. The Commission's Chair said: "The Wayne County Commission has spoken loud and clear that this plan tramples over the rights of more than 220 Wayne County employees who work at the Friend of the Court."

Today, Chief Judge Kelly of the Circuit Court published an op-ed piece in which she advocated a "public-private partnership" approach to child support collection and assured AFSCME that current workers' rights would be respected.

The one thing everyone seems to agree on is that Wayne County's Friend of the Court system is functioning poorly. Stay tuned as we follow this story to see how the courts, the politicians, the union and private child support companies struggle with each other to resolve it.

Child Support Collection by Cell Phone Records

jverner@childsupportweb.com — 2007-09-12T12:24:31-05:00

The State of Virginia has adopted a novel approach to child support collection, according to Harrisonburg's WHSV.com channel 3. The story says that finding delinquent noncustodial parents is often difficult. Because one in four children in Virginia is involved in a child support case, a great deal of money has been uncollected.

Someone in Virginia's Division of Child Support Enforcement noticed that about 76% of Americans use a cell phone. So the Division asked cell phone companies to share their cell phone records so that parents who are delinquent on their child support could be found.

The cell phone companies apparently refused to comply without subpoenas, so the Division served subpoenas on them. Rather than fight the subpoenas, some of the phone companies began cooperating. The numbers are big. The story quotes Nick Young of the Division of Child Support Enforcement: "We just sent them 268,000 records, they did a data match and they sent me back 52,000 phone numbers and addresses I didn't have." As more cell phone companies cooperate, "child support officials say they'll be able to track down just about anyone."

As is so often the case in child support collection, the motivation behind a state program is good, but the means are unsettling. According to the Fourth Amendment to the Constitution, "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Did the Division issue 268,000 warrants, or just one blanket warrant? If the latter, how did that warrant meet the requirements of the Fourth Amendment?

Child Support and Roe v. Wade

jverner@childsupportweb.com — 2007-09-10T15:52:44-05:00

Today, a case called Dubay v. Wells is being argued in the United States Court of Appeals for the Sixth Circuit. A group called The National Center for Men is backing Mr. Dubay's appeal, calling the case "Roe v. Wade for Men." Apparently, the Center thinks it's going to make some money from this appeal because it has trademarked the phrase "Roe v. Wade for Men."

What's the hooray all about? Mr. Dubay filed suit in a Michigan federal court. The court's opinion introduces the case thus:

According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case.

Mr. Dubay brought suit under the civil rights statute, 42 U.S.C. § 1983. He claimed that permitting a woman, but not a man, to terminate a pregnancy violates the equal protection clause of the United States Constitution. But a section 1983 claim requires some action by the state. According to the court, Mr. Dubay

failed to demonstrate in even the most remote way that state action plays a role in the interference with his choice to reject parenthood. The consequences of sexual intercourse have always included conception, and the State has nothing to do with this historical truism.

The court dismissed the case. Mr. Dubay vowed to soldier on. He appealed the case. This time he has a lawyer, but it is doubtful an attorney will do him much good. The trial court found Mr. Dubay's suit frivolous to the point that it required him to pay the defendants' attorney's fees. The same thing might happen to Mr. Dubay's lawyer in the court of appeals.

No More Friend of the Court for Child Support?

jverner@childsupportweb.com — 2007-09-07T13:03:33-05:00

Just yesterday, we posted a note asking whether child support collection should be privatized. It turns out we weren't the only ones asking. Today we learned from freep.com that Chief Judge Mary Beth Kelly of the Circuit Court of Wayne County, Michigan, will announce that the court is soliciting bids from private companies to replace Wayne County's Friend of the Court program. This program has been collecting child support but, according to the story, "has been criticized as inefficient, overburdened and mistake-prone."

Under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), each state is supposed to set up a "centralized disbursement unit" through which all child support payments are to be made. If that is so, how can Wayne County set up its own system? The answer is that technically, it hasn't. All child support payments previously received by the Friend of the Court office are sent to the centralized disbursement unit in Lansing, then remitted to custodial parents from there.

This won't be the first time that Michigan has contracted out for child support services. Michigan's central disbursement unit itself has been in private hands since 2005. But does PRWORA permit a state to contract with private parties for child support services? If the service provided is just receiving and disbursing money, that's one thing. But the Friend of the Court office also has enforcement responsibilities.

Private enterprise might well prove more cost-efficient at collecting child support. However, we remain wary of delegating the state's enforcement power to a private company.

Including Capital Gains to Calculate Child Support

jverner@childsupportweb.com — 2007-09-06T19:36:46-05:00

We usually think of capital gains in connection with federal income taxation. But "capital gain" also has an important meaning in child support law, at least in Tennessee. The Tennessee Supreme Court made this point clear in a recent decision, Moore v. Moore.

The Moore family business was Ed's Cycles. After their father passed away, Mr. Moore and his sister each owned half the business. When Mr. Moore divorced in 1991, he was awarded his shares of stock in Ed's Cycles. The court granted his wife custody of the couple's two children. The court set child support at $100 per week.

Ten years later, Mr. Moore sold out to his sister. She agreed to pay him $687,550 for his stock in Ed's Cycles, payable twenty percent down and the balance monthly over five years. She also paid him $100,000 not to compete with the business.

Later that year, Mr. Moore's ex-wife sued to increase his child support obligation, claiming that a “significant variance” existed between Mr. Moore’s child support obligation and the amount of child support that would be owed "if the income from the stock sale were included in the calculation."

Neither the trial court nor the court of appeals thought that a one-time capital gain like this one should be included in Mr. Moore's income for child support calculation purposes. But the Tennessee Supreme Court disagreed. Really, the Court had no choice because Tennessee's child support guidelines define gross income to “include all income from any source . . . whether earned or unearned, and includes but is not limited to . . . capital gains.”

As is so often true in child support cases, one can see both sides of the argument. To include proceeds from the sale of property Mr. Moore was awarded in the divorce for child support purposes seems unfair. Yet it also seems unfair for Mr. Moore to pay a relatively nominal amount of child support when he just received a check for $237,510 and would receive monthly payments for five years. The Tennessee Supreme Court provided a rationale: It quoted Tennessee's child support guidelines, which state that “to the extent that either parent enjoys a higher standard of living, the child(ren) share(s) in that higher standard.”

Child Support: Order to Seek Employment?

jverner@childsupportweb.com — 2007-09-06T14:23:33-05:00

This recent news story from California caught my eye. My eyes widened upon reading the article. If signed by the Governor, Senate Bill 523 would allow a judge, when initially setting child support, to order a parent, every two weeks, to submit a list of five different places the parent had applied for work during the previous two weeks. In other words, the court would have this authority not only without child support being in arrears, but at the same time it initially set child support.

How does this come about? According to Senate Bill 523, a "child support enforcement officer" would sign a "declaration" that

The child support enforcement officer believes that, unless ordered by the court to seek employment under this subdivision, the parent would ignore the child support order and would be likely to default on his or her child support obligation.
The reasons for that belief.

"Declaration" is a legal term for a document that usually must be sworn to under oath. The Bill contains no requirement that this declaration be sworn.

In short, if you are getting divorced and your spouse is getting the kids, and if a county bureaucrat thinks you're likely to be a bum, the judge can order you to go apply for five jobs in the next two weeks, then come back and prove you did it.

Ordinarily, if you ignore a court order, the court can find you in contempt and fine or incarcerate you. But Senate Bill 523 expressly states that the court "shall not issue a citation for contempt for the failure of a parent to comply with [such] an order . . . unless the parent has become delinquent in his or her child support payments." In other words, the part of Senate Bill 523 that orders a parent to look for work is unenforceable unless the parent is already behind in child support.

Senate Bill 523 seems like a seedy idea. It presumes that a parent will not support his or her children, and it allows a court to issue an unenforceable, yet onerous, court order.

Should Child Support Collection Be Privatized?

jverner@childsupportweb.com — 2007-09-06T00:34:00-05:00

In 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), thus fulfilling his campaign promise to "end welfare as we know it." More than ten years later, PRWORA continues to affect us in significant ways. For example, in a prior blog posting, we wrote that under PRWORA, passports can be denied to a person who is in arrears on child support payments.

One of PRWORA's requirements was that each state designate an agency to be responsible for child support collection. In Texas, that "agency" is the Office of the Attorney General. In fact, the bulk of the AG's staff is engaged in child support collection efforts. The AG's Child Support Division has become a huge bureaucracy with offices throughout the state.

And therein lies the rub. As with any large, bureaucratic organization, efficiency frequently suffers. Private child support collection agencies often do a better job of collecting child support than does the AG's office. In a recent court hearing in Dallas, a judge scolded an assistant AG for allowing a child support obligor to fall tens of thousands of dollars behind. A private agency, the judge observed, would have stayed on top of the matter. In another case, a federal judge remarked that one private child support collection agency "has achieved an undisputed impressive rate of collection."

Private child support collection agencies charge fees, but they tend to produce better results than the AG's office. Why couldn't the AG's office do better? How comfortable would we be with privatizing child support collection altogether? Although the system would probably operate more efficiently, there is something about granting this much government power to a private company that gives me the willies.

No Child Support Reduction Upon Retirement

jverner@childsupportweb.com — 2007-09-05T12:35:43-05:00

Clark Lissner, age 61, had been a schoolteacher for thirty-nine years. Lissner had had enough of the "challenging student population, who struggled with poverty, drugs, domestic violence and other problems that complicated his task as an educator." So he retired.

Retirement reduced Lissner's income by more than $25,000 per year. Lissner wanted to lower his child support obligation. Lissner was paying his ex-wife $340 per week as child support for two children, one in high school, the other in college. But Lissner's ex-wife was only 45. She had recently been forced to change to a different job. Her salary had decreased.

The New Jersey Superior Court decided the case. To make its decision, the Court considered these factors:

the benefits to the retiring parent, based on his or her age, health, timing, finances, assets, reasons for retiring, and whether the parent can control the disbursement of retirement payments to enable him or her to maintain support for the child despite retirement;
the impact on the child of reduced support, based on his or her needs, age, health, assets, and standard of living to which he or she has grown accustomed, and any proffered advantages to the child from the parent’s retirement; and
the fairness of the decision, based on the obligor’s motivation, good faith, and voluntariness of the retirement.

The Court's decision? "Lissner has failed to demonstrate that the advantages to him of retiring and reducing his income substantially outweigh the harm to his children from reduced child support. The motion to modify is denied."

Child Support Accountability and Privacy

jverner@childsupportweb.com — 2007-09-03T12:19:02-05:00

In a recent post, we mentioned that some states are now using debit cards to provide child support. One commenter said that debit cards are a good idea because purchases by the custodial parent could be "tracked" to make sure that child support money was being used (in his words) on Pedialyte "as opposed to Bud Lite or Marlboro Light."

That commenter framed an issue that often arises in child support cases. The noncustodial parent questions how the child support money is being spent, while the custodial parent says it's no one else's business. There are valid - and invalid - points on both sides of this issue.

If a custodial parent's lifestyle includes consuming lots of Bud Light or Marlboro Light, then the noncustodial parent might well question how child support money is being spent. But in this situation, perhaps the real issue is whether a change in custody should be sought.

Then there is the noncustodial parent who believes that child support money should be used only for purchases unique to the child. A common example is clothing. From this perspective, using child support to pay part of the rent or mortgage is an abuse because those things "are already paid for." But some of that expense must be allocated to the child, just as it would in an intact family.

A recent story from overseas revealed a novel abuse of child support money - lending it out at high interest rates. As a remedy, the story suggested that food vouchers be used instead of cash child support payments. Although using food vouchers would assist in the "accountability" problem, using them would be a nuisance to the custodial parent.

Expanding the use of debit cards is the best solution to the accountability issue. In litigation over child support, records of expenditures could be subpoenaed so that the court could see how the money was being spent. If an abuse existed, it would be evident. It would also be evident if the noncustodial parent had raised the issue just to harass the custodial parent.

Child Support Disbursement by Debit Card

jverner@childsupportweb.com — 2007-09-01T11:43:02-05:00

Back in June, we linked to the Brownsville (Texas) Herald's story headlined "Debit card makes receiving child support payments easier." The Herald received a number of letters in response to the story. These letters have been collected at The Fourteen Percenter. We'll look at some of the letters in this blog posting.

But first, we are compelled to observe that The Fourteen Percenter is misnamed. The Fourteen Percenter bills itself as "A publication for parents on the wrong side of the standard possession order. - I see my child two days out of every fourteen; 14%. That’s not enough." In fact, Texas' Standard Possession Order does not restrict the noncustodial parent from seeing the kids to two days out of fourteen. If utilized to its full extent, the Standard Possession Order says that the noncustodial parent will have the children from Thursday after school lets out until 6:00 p.m. Sunday on the first, third and (if there is one) fifth weekend of each month. In addition, holidays are split or alternated, and the noncustodial parent has the children for a month in the summer. Whatever percent that works out to, it's much higher than 14%.

Now to the letters to the editor: Dan Mathis of Sherman suggested, "The AG could push for laws that would allow him to enforce the Dad’s period of possession if his child support is paid up." But the Texas Family Code states that a father has a right to see his child whether or not his child support is current.

Another letter, by "Don," wonders whether the Attorney General's office receives whatever interest accrues on the debit accounts and who gets the service fee when a debit card is used at an ATM. That's a good question, given the amount of child support being paid.

Finally, "Todd" points out that if debit cards are used by custodial parents, then it will be possible to track their purchases. Todd shows his flair as a wordsmith when he says debit cards should be "used to gather data on how much Pedialyte is being bought as opposed to Bud Lite or Marlboro Light."

Child Support Requires Helping Fathers Stay Involved

jverner@childsupportweb.com — 2007-08-30T15:40:49-05:00

Back on August 23, we mentioned a report on child support collection in the District of Columbia. We complimented the report for its overall conclusion:

The investigation concludes that the District's child support model is primarily a punitive one designed to identify and sanction "deadbeat dads" when, based on the demographics of the District, it needs a constructive model designed to assist "dead broke dads" to meet their financial and other parental obligations.

Examiner.com has published one of its "3-minute interviews" with Walter Smith, the Executive Director of DC Appleseed, the non-profit organization that prepared the report. The questions and answers are worth repeating:

How does a broken child support system affect student achievement and school improvement?

The one thing the District is not doing well is its child support program, and there’s a direct connection between parental support and a child’s ability to succeed in school. Over 65 percent of the kids in Washington, D.C., are in child support, many more than are in the public schools. But by and large, they’re the same kids. And last year, more than one in four of the kids who should have gotten child support didn’t get any.

What’s the first move you would make to improve D.C.’s child support program?

The first thing I would do is recognize that the child support program doesn’t fit the demographics of the city. We have primarily designed a program to go after deadbeat dads. And though there are many deadbeat dads, there are many more dead-broke dads. We’ve got to have mediation services. We’ve got to have job training. We’ve got to have links to parental support. We’ve got to design a program that will give fathers an opportunity to reinvolve themselves in their children’s lives.

Does the D.C. child support bureaucracy need an overhaul?

A lot of what needs to be done to have a successful child support program is going to involve a coordination of many agencies of the District government, for example, the Department of Employment Services.

For the full report, click here.

Reducing the Federal Deficit With Child Support Fees

jverner@childsupportweb.com — 2007-08-28T12:29:24-05:00

A controversial provision of the federal Deficit Reduction Act of 2005 is now becoming applicable to child support collection. In short, under section 7310 of that Act, the federal government is assessing a $25 per parent annual fee once the state has collected at least $500 in child support for a parent. The fee applies only when the parent for whom child support is being collected is not receiving welfare.

According to the Act, the $25 fee can be collected in one of several ways. It can be:

taken out of child support collected, except not from the first $500 collected
paid by the person for whom child support is collected
recovered from the absent parent
paid by the state out of its own funds

What has so outraged single parents in at least two states - Idaho and Virginia - is that their states have decided to require the parent receiving the child support to pay the fee by deducting the fee from that parent's child support account once the account reaches $500. These parents were notified of the new fee by a letter explaining that the fee was necessary to help reduce the federal deficit.

The Idaho parent says, "Just charge the other parent an extra $25 to go towards that." But the Virginia parent has started an online petition to repeal the fee.

Child Support Collection - An Enlightened Approach

jverner@childsupportweb.com — 2007-08-23T13:05:24-05:00

DC Appleseed is a nonprofit organization that says it is dedicated to solving important public policy problems facing the Washington, DC metropolitan area. Today, DC Appleseed released a report called "Taking Care of the District's Children," subtitled "The Need to Reform DC's Child Support System."

According to a summary of the report, the DC Attorney General, DC Appleseed and two private law firms "conducted a two-year investigation of the system to examine the roots of the District government's child support crisis."

Their overall conclusion?

The investigation concludes that the District's child support model is primarily a punitive one designed to identify and sanction "deadbeat dads" when, based on the demographics of the District, it needs a constructive model designed to assist "dead broke dads" to meet their financial and other parental obligations.

An especially pertinent section of the report is called "Unemployed and Underemployed Non-Custodial Parents." It addresses the problem of those who want to pay but can't keep up with their child support obligations. Among the best practices recommended in this section are:

Electronic Monitoring/House Arrest – sanctions that serve as an alternative to incarceration for non-payment cases that allow the non-custodial parent to continue working or searching for work while subject to curfews and other restrictions on activity and movement.
Working For Kids – an employment program for non-custodial parents that provides case management services and helps non-custodial parents overcome barriers to employment. The program is also ordered as a second phase for non-custodial parents who need to complete substance abuse treatment.
Mediation – referrals to mediation to help parents work out custody and visitation challenges that might be interfering with motivation to work and/or make support payments.

This report deserves our attention. Condemning non-custodial parents who want to pay but can't helps no one. If we can construct a system where non-custodial parents can contribute to and be part of their children's lives, then child support collection will improve.