Recently I wrote a piece, once again pointing out the profound ignorance of British former family lawyer, John Bolch. His blog post was about child support and, as is always the case with Bolch, contained many smug assertions that don’t bear even casual scrutiny. But I find I was too kind.
Bolch tossed off the usual boilerplate about child support. In answer to the hypothetical question of why a non-resident parent should have to pay child support, Bolch responded with this, assuming the truth to be self-evident:
[A] child costs money to maintain, and the primary responsibility to maintain falls upon both parents.
That sound fair enough, right? It’s nothing but common sense, surely. Or is it? Consider this article from Louisiana (KPLCTV, 9/5/18). It’s a column to which people can write with their questions about various matters in family court. So here’s the question one person sent in:
I have been paying child support directly to my ex-wife for several months. I have receipts for payments. Support Enforcement now tells me that the receipts are not good, and since I haven’t paid through them, I have to pay back child support. Is this right?
And here’s the nut of the answer:
Technically, the payments are owed to Support Enforcement and not to the mother.
Yes, it’s one of the many miraculous achievements of the child support system that “child support” isn’t owed to the child or to the residential parent, but to the state. Prior to that system, courts were tasked with keeping track of child support owed and paid and all of it was paid by the non-resident parent to the resident parent. No longer.
So Bolch’s sunny belief that common sense prevails, that children require money to support and it’s the parents who must do so makes sense, but contradicts reality. Has the father who wrote to the advice column supported his child? Of course he has, but the fact is irrelevant to the case. He didn’t pay the state and so his effort is void ab initio. Remember that the next time someone brays that child support is for the child. It’s not.
Needless to say, it may be different in the U.K. but my money’s on it’s being the same.
Bolch plunged on to say that fathers’ complaints that they can’t tell whether their money goes to support their child or not is pointless. He did so because, after all, money is a fungible good, so any funds paid to a mother who in fact supports and cares for the child, necessarily redound to the child’s benefit. And who could argue?
Well, it turns out the law in the U.S. could.
However, it may be possible to defeat the Support Enforcement position if the payer can show that that mother requested it or that the money directly benefited the child.
Therefore, when Dad pays Mom directly, the entire notion of the fungible nature of money flies out the window. All of a sudden, the burden falls on Dad to in some way prove that the money he handed to Mom was spent by her for the child. How he’s supposed to do that, I can’t imagine. How does he trace his check to a package of Pampers?
When dads complain that they don’t know if their money is being spent on the child, they’re told to stick a sock in it; money is fungible, so necessarily, the child benefits. When Dad pays directly to Mom instead of to the state, all of a sudden that obvious fact vanishes like morning mist and Dad is told to pay again. There’s a weird sort of consistency to that. See if you can figure out what it is.
Interestingly, even the statement quoted above appears to be overly friendly to the paying ex. Note that it says that Dad can defeat the enforcement position either by showing that the money directly benefitted the child or that Mom requested that he pay her directly instead of sending it to the state. In the very next sentence, the column contradicts that.
Louisiana case law has held that Child Support payments, that are ordered to be paid through Support Enforcement, but instead are paid by the obligor parent directly to the obligee parent do not entitle the obligor to an offset or credit unless the payments were made for the direct benefit of the child(ren) and at the request of the obligee.
Note that what began as an ‘or’ immediately transformed itself into an ‘and.’ In fact, Mom has to have requested direct payment and Dad has to show that his money directly benefitted the child.
What’s Dad’s only way out of this Dickensian situation?
[I]f the ex-wife wants to waive the arrears due to the fact that the other parent made direct payments, she may have the arrears waived.
So if Mom elects to refuse extra money, she may. I’m sure that happens all the time.
Bolch aside, the whole notion that child support is strictly for the benefit of the child is demonstrably absurd. It should be that way, but it isn’t. After all, what possible policy is furthered by telling a father who very plainly has supported his child that he hasn’t? How does it make sense that the only way to support your child is to send money to the state? And don’t forget; the state is ever-ready to suspend the driver’s license and other occupational licenses and send to jail a father, just like the one who asked the question. Having supported his child in full, he’s “in arrears” and the state is waiting to pounce.