October 2, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
At a time when the Office of Child Support Enforcement is bending heaven and earth to reform child support laws, the Supreme Court of the State of Nebraska has refused to make even modest reforms to its child support guidelines. As this article indicates, the state’s highest court only agreed to reforms that are so limited as to be all but inconsequential (Omaha World Herald, 9/27/15).
It’s not as if the state didn’t take a stab at making needed changes. Pursuant to federal mandate, Nebraska appointed a 12-person commission last year whose job it was to review the child support guidelines and recommend reforms. The commission did its work and, on December 29th, published a 99-page report that included recommendations. There followed a four-month period during which public comments on the recommendations were received. On September 16th, the Supreme Court rejected the lot with two minor exceptions.
This comes against a background not only of OCSE efforts at reform, but the realization that in a state with one of the lowest standards of living in the country, Nebraska’s child support guidelines result in among the highest child support orders. Many believed that those facts alone would bring about a reduction in child support levels, but the state Supreme Court wasn’t having it.
To be clear, the OCSE has been complaining for years that state family courts routinely set child support at levels higher than non-custodial parents can pay. That results in ever-growing arrears, an ever-growing child support bureaucracy and lower collections. Lower collections? That’s right. Here’s what the OCSE had to say last year when it published its own recommendations for reform.
A growing body of research finds that compliance with child support orders in some States, regardless of income level, declines when the support obligation is set above 15–20 percent of the obligor’s income, and that orders for excessive amounts result in lower, not higher, child support payments.14 States like California and Washington have found that the direct result of establishing support obligations that exceed the ability of obligors to meet them is unpaid arrearages. Most arrearages are owed by noncustodial parents with earnings under $10,000 and are uncollectible.15 Research finds that high arrearages substantially reduce the formal earnings of noncustodial parents and child support payments in economically disadvantaged families, while reducing unmanageable arrearages can increase payments.16 Accumulation of high arrearage balances is often associated with incarceration, because parents have little to no ability to earn income while they are incarcerated, and little ability to pay off the arrearages when released due to lack of employment.17
In short, excessive levels of support result in arrears that cannot be paid. Non-custodial parents know they can’t be paid, particularly with the addition of often usurious interest rates. That knowledge results in parents giving up even trying to pay, which in turn results in incarceration which only deepens the debt. All of this of course falls most heavily on the poor.
So it comes as no surprise that the Nebraska child support table penalizes most heavily, those who are least able to pay. So, for example, a non-custodial parent with three children whose combined family income (the combination of both parents’ earnings) is $2,000 pays the highest percentage of his/her income of anyone with three kids. That non-custodial parent pays about 21.2% of the combined income of both parents in child support. Above the $2,000 income level, the rates go steadily downward so that a family with three children and combined earnings of $6,000 pays just 16.2%.
And of course those rates are based on the combined earnings of the two parents. If custodial Mom and non-custodial Dad each earns $1,000, Dad pays 42.4% of his income in child support. Mom’s total income therefore is $1,424 per month while Dad has to get by on $576.
Needless to say, when two parents with three kids only earn $2,000 per month between them, they live in poverty according to U.S. government figures. So yes, Nebraska’s poor are hit hardest by the child support guidelines the state requires its judges to use.
As the OCSE so clearly stated, 15% of the obligor’s income is about the top of the mark if we expect him to pay. Above that, the death spiral of declining ability to pay, declining effort to pay and prison sets in. Interestingly, Nebraska’s child support table makes no mention of what the non-custodial parent actually earns. So as my example above demonstrates, a parent may be required to pay sums twice or even three times the rate urged by the OCSE.
And that apparently is just how the Nebraska Supreme Court likes it.
The Nebraska Supreme Court has rejected most proposed updates to state child support guidelines, including a recommendation that would have lowered monthly payments for some noncustodial parents…
But the court rejected a comprehensive proposal to modify the tables judges use to calculate monthly child support payments to reflect Nebraska’s lower cost of living. The change would have brought the state’s child support payments closer to the national mean and would have resulted in monthly reductions of $200 or more for some parents.
Amazingly, the Court offered no explanation for its inaction on child support reform. Attached to the World Herald article is the Court’s 1 ½ page letter to the Chairman of the Child Support Advisory Commission that simply summarizes what the Court did. Interestingly, it seems to have spent little time even considering the matter. The letter recites that the judges came to their decision in the process of regular business during their periodic consultation. They left it to the Administrator of Courts, Corey Steel to defend the Court’s rejection of child support reform.
“The court was very concerned about the best interest of children and standards of living in Nebraska,” said Corey Steel, state court administrator.
That concern didn’t extend to do what it should have done to enhance the former and acknowledge the latter. Again, as the OCSE never tires of explaining, unpayable child support orders do not benefit children. On the contrary, they make matters worse. They reduce payments and send Dad to jail where his kids can’t see him and where he can’t earn to support them.
Members of the Commission who had worked so hard to address reform weren’t pleased.
“I’m disappointed,” [former state Senator Brad] Ashford said Friday. “I think we would have moved the ball down the field if they would have adopted these guidelines.”…
Chris A. Johnson, a Hastings family law attorney, said the court missed an opportunity to update Nebraska’s child support formula…
Monty Schultz of Kearney, the noncustodial parent who served on the commission, said it was unfortunate that the court took a pass on the parenting time issue.
“The best interest of the child should not be a paycheck,” he said.
Omaha family law attorney Angela Dunne, who served on the commission, said she was surprised the court decided against updating the child support tables. Commission members put in a lot of work to come up with their recommendations, she said.
“It would be helpful if the court gave further instruction for future commissions,” she added.
So, why did the Court refuse reform? After all, one of the practical advantages of appointing a Commission is to give the justices political cover for enacting reform. When a commission that represents all interested parties makes recommendations, it makes it easier for the Court to simply agree. If political flak flies, the justices can simply point to the Commission and its rather exhaustive report. Of course it could also point to the exhortations of the OCSE.
But instead, the Court opted for essentially no reform at all. Why? That’s anyone’s guess, but four of the seven justices are up for retention next year, so a fair guess would be that they fear that reforming child support so non-custodial parents pay less might be spun by some as an attack on mothers and children. It’s not, but public perceptions can sometimes be easily manipulated.
Meanwhile, read the comments to the World Herald article contributed by Sam Baldwin. My guess is he’s onto something.
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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.
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