May 17, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
I’ve written a lot about how child custody laws disproportionately punish the poor, mainly fathers. And I’m not going to beat that horse again here. But this fine article goes into the subject in more depth and detail than I ever have, so it merits our attention (Quartz, 5/5/15). The author, Wendy Paris, points out some ways in which divorce and child custody systems adversely impact the poor I hadn’t thought about. Those like Jeff Landers, about whose utterly uninformed views I wrote here and here, should read Paris’ article and understand that when they argue for maintaining the status quo, they’re arguing for greater abuse of our most vulnerable parents and their kids.
Seventy percent of unpaid child support debt is owed by parents with no or low reported earnings, according to the Office of Child Support Enforcement. Their ex-wives often are poor, too. For these families, our punitive child support policies function like a de facto debtor’s prison for fathers.
Good point. A lot of the discourse about child support and its astonishingly flawed methods of establishment and enforcement focuses on the payer parent, and rightly so. After all, they’re the ones having income imputed to them that they don’t and can’t earn. They’re the ones whose arrears have in the past gone up due to rates of interest found nowhere else in our financial system. (At a time when T-Bills were paying under 1%, impoverished child support debtors were being required in many states to pay 10% or 12%.) They’re the ones being required to pay still more to try to get a judge to reduce their payments when they lose a job or become disabled. And they’re the ones facing five-minute “hearings” without lawyers before overworked and jaded judges to try to prove they can’t pay. And they’re the ones who go to jail.
So yes, it’s appropriate to focus on the issues facing them. But, as Paris points out, let’s not forget about the custodial parents. That’s because, if the father of their child is poor, it’s likely that they are too. So indirectly, every problem faced by a non-custodial father is faced by a custodial mother and her children. So when we send a dad to jail, his arrears continue to rise, but Mom doesn’t receive what he can provide, whether that’s money or diapers and formula. That’s not just money she didn’t get, it’s also money she paid out.
Upper- and middle-class couples seeking divorce in the US benefit from ever-increasing psychological, financial, and parenting resources. The law itself has improved divorce for many. New legal approaches such as mediation and collaborative counsel can make filing itself a mutually uplifting experience. These forms of “alternative dispute resolution” help adults make good decisions for everyone in the family, and steer clear of the divisive, anger-escalating spectacle of family court.
My view of the professions that have attached themselves to divorce and child custody systems isn’t nearly as rosy as Paris’, but she has a point. We often see psychologists and mediators with strong anti-father biases who make little attempt to do what’s best for kids. Loren Galvin in Nebraska is but one of countless examples of a mediator who is so extreme in his anti-father views as to have some calling for de-licensing him. In Connecticut, there’s an investigation by the Department of Justice into, among others, family courts that have been publicly charged with corruption, mostly in the use of these so-called “professionals.”
But Paris is correct that, with psychologists, mediators, friends of the court, etc. who are competent and unbiased, divorce and custody outcomes can be much more reasonable than they otherwise would be. Often, those people actually do what they’re supposed to do – help litigants and judges hammer out the best decisions for all. Of course their services aren’t free. Some of those professionals charge jaw-dropping fees, i.e. those the well-heeled can pay, but the poor can’t. That leaves the less well-to-do with the least that the system has to offer. Well over 90% of cases aren’t litigated and most of those have either one or no lawyers involved. That’s because most people can’t afford the fees, so they present the judge with their own fait accompli which is usually rubber-stamped, sending the former spouses on their ways.
And that’s if the couple is married. It’s worse if they aren’t. (The tendency of the poor to eschew marriage is one of the many deep and serious problems this country faces. The avoidance of marriage is yet another way in which the poor remain poor. After all, if an adult pays his own way plus a little more, he/she confers a financial benefit on the rest of the household. Plus, that person provides additional childcare and brings along his/her extended family that may benefit both the child and the parents.)
“Many states have two systems, one for married parents and one for poor people/welfare cases that are funneled through ‘paternity dockets’ where they barely get to say a word,” says Daniel Hatcher, a professor of law at the University of Baltimore and a prolific researcher of and advocate for child support reform. “It’s a tribunal that’s just about child-support and paternity. It’s crowded. Judges are jaded. They face huge case loads.” As the trend toward unmarried parenting continues, especially among the poor, these paternity dockets look to grow even more crowded, meting out rushed decisions to more families.
Indeed, the “family justice system” with which the poor are acquainted looks little like the one described by Paris available to the affluent.
While in court, a non-custodial parent, usually the father, may have a chance to explain to a busy judge his financial situation — perhaps he’s unemployed and worried about falling behind on rent. In many states, the judge can decide that this father could be earning minimum wage, impute that income to him, and set a custody amount he must pay the mother of his child as a percentage of his potential (that is to say, fictitious) earnings.
Maybe this obligation pushes him to scramble for a job. Perhaps it takes a few months. All the while, the child support debt has been accumulating. Now he has the monthly obligation plus back payment. Some states terminate parental rights or throw a parent in jail or prison for back child support, or “non-compliance” with court orders. In South Carolina, the court can order the noncompliant father to appear to explain his delinquency, charge him $1,500 in the process, and jail him for up to a year. South Carolina is hardly an outlier. In Texas, a parent can be incarcerated even after he’s paid back his child support debt. (Texas is infamous for overcrowded courts, too. In one court in Harris County, Texas, a court master decided 500 paternity and child support cases in one day.)
That’s less than one minute per case in an eight-hour day.
Unsurprisingly, despite ever greater efficiency at collecting child support, the overall child support debt continues to rise. That’s because child support levels are set too high for non-custodial parents to pay and the process of modification is largely unworkable in any meaningful way. Throw in jail and interest and you have a situation in which non-custodial parents like Walter Scott (recently killed by a police officer in South Carolina) “got to the point where he felt like it defeated the purpose.”
Scott was right. He was trapped in a system designed to defeat him. There was no way he could win.
Studies from a few states show that on average, a parent with a child support case enters jail or prison about $10,000 behind; he leaves owning more like $30,000. This debt is unlikely ever to be paid. The national child-support debt is more than $115 billion.
Anyone who believes that a significant portion of that debt will ever be collected is living in a fantasy land. The obligors are poor. They were never able to pay and they still can’t. All the moaning, all the draconian enforcement measures in the world will never change that fact.
And, since the topic is how the child support system most harms the poor and their children, Paris doesn’t neglect to mention that, for many poor families, even when support is paid, it doesn’t go to the kids but to the government.
If a custodial parent — usually the mother — seeks Temporary Assistance to Needy Families (TANF, the program that replaced welfare) or food stamps, both parents are treated like bad children. The mother is required to name the father, establish paternity, and sue the father in court for support, even if they have an in-kind arrangement that’s working. The pursuit of child support can destroy relationships. The money, if he has it, often goes back to the state for supporting the brood, not to his children. Meanwhile, the dads who can’t pay may find themselves in jail or prison, unable to help mom in other ways, such as picking up the kids from school or throwing a ball around on weekends.
Finally, the entire child support system is based on a flawed and deeply biased view of non-custodial fathers, and Lenore Weitzman’s study of divorced women that was so badly done she eventually withdrew it altogether. Of course it took her a decade to do so, a decade in which child support guidelines had already been established based on her work.
In the 1980s and ‘90s, the notion of the “deadbeat dad” loomed large in the public conscious, in part because of one spectacularly flawed and widely-cited study — since retracted by its own author — that purported to show divorced mothers subsisting at a third of their former standard of living, while the fathers lived better than ever…
Old ideology probably contributes to our current policies as well — a view of faltering families that’s about as enlightened as something out of The Scarlet Letter. In England, Elizabethan Poor Laws of 1601 authorized towns to sue fathers of unwed mothers to reimburse them for assistance provided to their children. Early “bastardy acts” allowed colonies to incarcerate pregnant unwed mothers to protect the state from the financial burden of the child. Today’s laws are not as different as you’d expect. Lurking underneath lies an entrenched view that fathers are the lazy enemies of their own families, and poor mothers, in some way brought this on themselves.
In thinking about child support and its reform, it’s well to remember that, among the multitude of just and accurate criticisms, one important one is its devastating effects on the poor, our most vulnerable group. Wendy Paris reminds us of the fact; good for her for doing so.
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