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Fathers and Families

Massachusetts Child Support Guidelines
Are Actively Harmful to the Wellbeing of Children
October 11, 2012
Top Story
Massachusetts Child Support Guidelines Are Actively Harmful to the Wellbeing of Children
By Ned Holstein, MD, MS, Chair and Founder, Fathers and Families

Ned Holstein
Ned Holstein
I believe that that Massachusetts Child Support Guidelines require extensive revisions because they are actively harmful to the wellbeing of children.

Best Interests of Children
Life teaches us that almost any beneficial factor is beneficial in moderation; and that too much or too little are usually harmful. It is intuitively obvious why too little child support is harmful to the wellbeing of children. It ought to be intuitively obvious that too much court-ordered child support is also harmful to children, but so little thought has been devoted to this issue by decision-makers that it is often lost.

For middle income and high income families, the current Massachusetts Child Support Guidelines produce child support orders that are far too high by any reasonable measure. They constitute a windfall to the recipient. In low income cases, the child support orders are by no means a windfall, since they are generally less than it costs to raise a child; but they are high enough to constitute a major burden for the payor, often pushing him into deep poverty.

Excessive child support orders are the result in part of an archaic way of thinking, namely, that the wellbeing of the child is solely bound up in the wellbeing of the custodial parent and her home. And that the circumstances of the non-custodial parent matter little or not at all to the wellbeing of the child. Social science over the past 30 years has thoroughly repudiated this concept.

When the amount of child support constitutes a windfall to the recipient, it creates active resistance to shared parenting so as to obtain a sole custody decision and the money that goes with it. One should not underestimate this dynamic in present-day Massachusetts. Multiple studies have shown that shared parenting is the arrangement that children most desire and in which they do best, so Guidelines that incentivize battles for sole custody harm children.

In poor and middle class families, excessive child support causes the non-custodial parent to live in poverty or near-poverty. Thus, the child divides her time between a well-appointed home and an impoverished one.

The existing Guidelines are also bad for children because they diminish parenting time by the non-custodial parent. In many cases, the non-custodial parent finds that the only lodgings he can afford are quite distant from where the children are living. Much time is then spent by both the non-custodial parent and the child in commuting. Moreover, the non-custodial parent is frequently forced to work two or three jobs, or substantial overtime, simply to survive in the face of an excessive child support order combined with the effects of taxation.

It is critical for the wellbeing of our children that we consider the financial effects of the Guidelines, together with tax law, on both households.

The sole focus on the custodial parent’s household also lives on in the first Principle stated in the current Guidelines, “To minimize the economic impact on the child’s standard of living.” Since two homes are substantially more expensive than one home, minimizing the economic impact on the child is mathematically impossible when one contemplates the child living in both homes.

Poor Parents
The disposable income left to the low income payor after paying his obligations is grossly insufficient to live on. This terrible policy, both in Massachusetts and elsewhere, creates several unintended effects for children. A large proportion of low income custodial parents never seek a child support order at all because they know from experience that it is unpayable. Secondly, this unpayable court order creates a large class of fugitive parents who are at risk of seizure of any small asset they might possess, revocation of driver’s licenses, or incarceration. Thus, the child is deprived of the company, guidance, and love of the non-custodial parent, who must stay out of sight. This court-created child abandonment has lifelong negative effects on the child.

The unpayable child support orders generated by the Massachusetts Guidelines for low income payors is contrary to all other existing social policy concerning the poor. That is precisely why an extensive safety net exists. It represents the belief that society as a whole should ensure that poor people can live a decent existence. Both Fathers and Families and I accept that parents have responsibilities to their children, including financial responsibilities. But court-imposed obligations must be tempered in light of our larger societal philosophy concerning poverty.

Middle-income Cases
After paying federal and state income taxes, payroll taxes, and child support, the non-custodial parent enjoys far less disposable income than does the recipient of child support. Throughout the range of middle class incomes, if the two parties have equal earnings, the payor is left with less than half as much disposable income as is enjoyed by the recipient. The payor generally must earn at least three times as much as the recipient to enjoy a disposable income that approaches that of the recipient of child support.

It is true, of course, that the custodial parent bears the burden of greater child-related expenses. Or, more accurately, is supposed to bear such a burden. In practice, no protections exist that ensure that this is actually the case. Many non-custodial parents report that in addition to paying excessive amounts of child support, they must also pay an excessive share of the direct expenses of the child.

General Public
I have now attended at least fourteen Child Support Guidelines public hearings in Massachusetts. They are all the same. The overwhelming majority of those who testify at the public hearings believe that the child support orders are too high. About 10% of those who testify are paid advocates for the poor. They are not really members of the general public as usually understood.

Finally, there is a striking absence of recipients of child support who testify that child support orders are too low.

In my experience, this is usually explained away by claiming that they are pressed too hard by the demands of life to appear and testify. This may well be true, but they are no more pressed than many of the non-custodial parents working two or three jobs and often raising a second family. Another explanation often given is that non-custodial parents are urged by Fathers and Families or other organizations to appear. But certainly the custodial parents have many advocates who could urge them to appear as well. In fact, their advocates are generally numerous and paid, whereas most reform organizations like Fathers and Families have no paid staff or very few.

But perhaps the reason for the disparity in turnout is simply the truth: that the Child Support Guidelines are, in fact, too high; and that both custodial and non-custodial parents know this.

Massachusetts Child Support Guidelines do not reflect overwhelming public opinion as expressed at fourteen child support hearings ranging over the past twelve years. Task Force members should ask themselves why the general public consistently comes down on one side of this debate, why almost no members of the general public come down on the other side of this debate, and why those who promulgate the Guidelines have so freely ignored the clearly stated views of the general public.

Second Families
Many payors find their parenting time reduced to a few days per month. It is not surprising that many of them start a second family, since they feel no true parenthood for the children of their first relationship.

The usual response once again is moral posturing. “These fathers are acting irresponsibly by having children in a second relationship that they cannot support.” There are three problems with this. First, we do not apply this standard to poor people in general who have children. Second, considering parents who are separated or divorced, we do not apply it to custodial parents, with the sole exception of TANF recipients, but not recipients of other safety net benefits. And third, we do not take into account that payors are often marginalized in the lives of the children for whom they pay child support by custody orders that drastically limit their parenting time, or failure to enforce their court-ordered parenting time.

Differential Treatment of Intact Families versus Divorced/Separated Families
Several provisions of the Guidelines place burdens on divorced or separated parents that do not exist in law for married parents. This includes the requirement to support a child up to age 23 and the requirement to provide post-secondary education for children. As a general matter, becoming divorced or separated should not open up the family to intrusion by the law in ways that go far beyond what is required of parents in intact families.

Some respond by asserting that no other means exist to give the children of divorced and separated parents an equal opportunity in life. These provisions are yet another manifestation of the coercive mentality that pervades child support policy. It is the mentality that the only way to get certain parents to live up to their obligations is to compel compliance using the full weight of the law. Those who hold this view have the mistaken idea that parental love evaporates at the courthouse door. They somehow have overlooked the fact that most parents love their children and want desperately to do well for them. It is only when the courts (or the custodial parent acting illegally, but without legal sanctions) separate these parents from their children, so that they no longer feel them to be theirs, that many non-custodial parents do less than their best for their children.

The proof of this lies in several studies showing that divorced and separated fathers who share the parenting are the most likely to pay child support, spend additional money on their children, and contribute to college educations with or without court orders to do so.

I understand that there are parents who do desert their children financially and otherwise. But current practices of the courts vastly increase this problem, either by marginalizing the parents through inadequate parenting time, or, as discussed above, by creating fugitives who are unable to pay the child support order.

While this Task Force does not have authority to promulgate changes in custody law, it could help move the law in more constructive directions by making a recommendation for more shared parenting so as, among other things, to improve the financial support of children, including voluntary support rather than coerced support that is not required of married parents.

Attributed Income Attributed income is an extremely serious problem, especially during the current, prolonged period of high unemployment and high underemployment. Not only are people out of jobs, but people whose income depends on commissions, tips, charitable contributions, sales, or overtime are earning considerably less than they did in the past. This is also true of people who are employed in lesser capacities than in the past.

The Urban Institute issued a study long before the current recession showing that, even in good times, payors with significant decreases in income were rarely able to obtain downward modifications of their child support orders. Each such person is therefore a case of attributed income, in that they continue to pay child support on a level of income they no longer enjoy.

Other Issues
I am offering these comments in support of the official 2012 submission by Fathers and Families on the Massachusetts Child Support Guidelines. And, I am including the Minority Report I authored in 2008 when I sat on the Massachusetts Child Support Guidelines Task Force.
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Fathers and Families improves the lives of children and strengthens society by protecting the child’s right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform that establishes equal rights and responsibilities for fathers and mothers.

Fathers and Families’ vision is a society in which:
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  • Society treats fathers and mothers as equally important to the wellbeing of their children:

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Our core principles are:
  • Shared Parenting: Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce.

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  • Respect for Human and Property Rights: The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children... is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

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