ARE YOU A ‘DAD BY DEFAULT’

Kenya N. Rahmaan
As the fight for child support and family court reform heat up in 2017, it is important that men with court ordered child support orders know, undoubtedly, that the order is valid.  More and more men across the United States have been contacting The Reform Child Support NOW! Movement with the issue concerning a failure of notification prior to being ordered to pay child support.  The practice of forcing someone to pay child support without proper service has created a quickly increasing subculture of men, not all necessarily biological fathers.  This group of ‘Dads by Default’, a term created by the government but recently adopted by Detroit, Michigan native Carnell Alexander is becoming more common across the nation.  Not a stranger to the child support system or the unconstitutionality of the laws, Mr. Alexander is a victim of paternity fraud, and without valid proof of service, had been forced by the Wayne County Friend of the Court and the state of Michigan to adhere to a child support order.  After decades of standing up for his rights and demanding justice, Mr. Alexander’s case was finally dismissed but without retribution for the suffering he had been forced to endure due to the child support system.  Because of his resilience, more men are starting to question the validity of their own child support cases.

When a man is found to be a ‘Dad by Default’ in a child support case, there is specific protocol that is supposed to take place before the case ever makes its way to a courtroom.  According to the Office of Child Support Enforcement Agency (OCSE), a branch of the Health and Human Services Administration (HHS, 2013) is tasked with overseeing the child support programs nationally, a default judgment is a decision made by the tribunal when the defendant fails to respond.  This failure to respond is only relevant if the defendant (obligor in child support cases) has been properly notified about the child support complaint.  In fact, the National Paralegal College or the NPC, says that service process is so essential in a lawsuit that, if not performed properly, a lawsuit cannot proceed.  Child support orders are lawsuits in that the parent (or non-parent in some cases) is the defendant.  Because of this, proper service is not only essential but it is a constitutional right of the person being sued in the lawsuit.  Since improper service determines the validity of a case, it is important that any man who has been declared a ‘Dad by Default’ confirm that they did receive the child support complaint according to the laws of his state.  If the service can be proven invalid, so will be the child support case.

An issue that almost always arises when men are declared a ‘Dad by Default’ in a child support order can be the amount of the order.  Because the obligor is not present during the hearing, he cannot provide necessary financial documents needed when deciding a payment amount.  The judge can then impute his income to decide a monthly payment amount.  Aaron Thomas writes on DivorceNet.com that imputed income is the amount a court uses in child support calculations when it would be inappropriate to use the parent’s reported income.  Some could argue that it would be inappropriate to guestimate income to set a child support payment amount simply because the obligor may not be financially able to pay the set amount.  Courts also impute income when a parent is earning below his or her income, (Thomas).  Imputed income is one of the reasons that a man, when finally learning of a possible child and a definite child support case, begins the obligation thousands of dollars in debt.
Arrearages is the past, unpaid child support owed by the noncustodial parent, (HHS, 2013).   In many instances, years have passed, and the ‘Dad by Default’ is suddenly made aware of an insurmountable debt that cannot be realistically paid during an average wage earners lifetime.  It is important to mention that there are different statutes of limitations, based on the state, when dealing with child support judgments.  For example, the statute of limitations to enforce a child support order in Michigan is 10 years after the last obligation due while Alabama enforces a 20-year statute of limitations, (Child Support Collections).  Florida has a more complex statute of limitation when dealing with child support enforcement as it may apply ‘laches of defense’ if claimed by the defendant.

Using laches is not a common defense and is less likely to be granted in the states acknowledging this form of defense.  According to Gregory S. Forman, P.C., a Charleston defense attorney and Certified Family Court Mediator (2006), laches seeks to avoid past non-compliance with the order due to one party’s failure to timely enforce the order to the prejudice of the other.  If the judge does not rule in favor of the defendant, he or she may be forced to pay arrearages which could be calculated over decades.  States such as Ohio and Massachusetts do not have a statute of limitation when it comes to child support orders.  ‘Dads by Default’ fall under a different set of laws because of the way the judgment was ordered. Jennifer Hankinson answered the question on DadsDivorce.com which explained that generally, the court will lose power to hear your motion on the 31st day after the judgment is signed by the court.  This further explains how and why men are often thousands of dollars in debt from the very beginning of the being notified about the child support order.

It is important to overturn certain laws and amendments when righting the wrongs perpetrated against ‘Dads by Default’.  The implementation of the Bradley Amendment in 1986 is damaging to all with a child support order but is particularly detrimental to people with default judgments.    The OCSE (2012) reminds us that judicial officials state that child support orders may not be retroactively modified, except back to the date of service on the other party.  This means that the amount of arrears owed cannot be increased but more importantly, the amount cannot be decreased.  This is a uniform law which makes it nearly impossible for judges to excuse child support debt under any circumstances.  This is because under the guidelines of the Bradley Amendment, a child support payment becomes a judgment of law when it becomes due and unpaid and is entitled to the full faith and credit to be enforced as any other judgment (OCSE, 2012).  For ‘Dads by Default’, after the 31st day of the child support hearing any possible reduction of the alleged owed arrears, short of making expensive and timely payments of course, will never be paid.   But making these payments are often unrealistic for men with moderate, low, or no income.

Child support arrears in any case can be detrimental, but are especially damaging to ‘Dads by Default’ when he is forced into debt for a child that he did not biologically father. This civil rights violation is suffered by men who may have done nothing more than to meet a woman.  Consider another Michigan resident who is currently being forced to pay nearly $100,000 in child support arrears for a child that he not only did not father but to a woman that he never had sex with past, present, or otherwise.  There are thousands (if not millions) of violations to civil rights, due process, and equal protections to accompany personal horror stories all attributable to the current child support system.  These situations are reported by biological fathers who have been arrested.  They are not arrested for ‘willfully’ failing to pay child support (which is the actual law) but because they were financially unable to pay the exorbitant amount of debt.  It becomes an even bigger tragedy when a ‘Dad by Default’ is arrested for being too poor to pay the child support debt.

In conclusion, any man with a default judgment, albeit currently or recently, should question the validity of the child support case.  The first step in this process would be contact the local child support agency or the courthouse and request a copy of the entire case file.  There is no requirement when requesting personal court documents and no explanation is needed.  The Freedom of Information Act (FOIA) is clear when explaining how citizens can obtain government documentation about themselves.  According to the United States Department of State (DOS), the FOIA generally provides that any person has the right to request access to federal agency records or information.  Although child support agencies are regulated on a state lever, the federal government is accountable for ensuring that the states are following the guidelines.

Upon receiving and examining the court documents, he needs to ensure that the child support office or court official did, in fact, obtain proper service when issuing the complaint which resulted in the default judgment.  If the proof of service is not verifiable, he should contact his local agency and the court officials responsible for that child support case.  Once contacted, he should begin the process of filing a motion to terminate or dismiss the child support order and/or judgment on the grounds of a failure of proper service.  He should immediately find out what paperwork is needed to erase all arrears supposedly owed for that child support case.  Although, a rare remedy in fraudulent child support cases, the ‘Dad by Default’ could seek advice on how to receive a refund for all monies paid because of the child support order.  Hopefully, with the formation of father’s rights and child support reform advocacy organizations, the term ‘Dad by Default’ will soon become a distant memory.

References:

Child Support Collections. (n.d.). Statute of limitations for child support by state. Retrieved from http://www.child-support-collections.com/statute-of-limitations.html
Foreman, G. S. (2016, July). Enforcement (or defending enforcement) of family court orders (July 2016) | Gregory forman, attorney at law – Charleston divorce, custody, family law, and support. Retrieved from http://www.gregoryforman.com/publications/enforcement-or-defending/
Hankinson, J. (n.d.). Statute of limitations for filing a claim for back child support. Retrieved from https://dadsdivorce.com/articles/what-is-the-statute-of-limitations-for-filing-a-claim-for-back-child-support/
U.S. Department ofHealth and Human Services/Office of Child Support Enforcement Agency. (2013). Glossary of child support terms – Definitions. Retrieved from https://www.acf.hhs.gov/sites/default/files/programs/css/child_support_glossary.pdf
National Paralegal College/National Juris University. (2017). Service of process. Retrieved from https://nationalparalegal.edu/public_documents/courseware_
asp_files/researchLitigation/PreTrialPractice/ServiceOfProcess.asp
Office of Child Support Enforcement. (2012, May 15). Modifying support orders | Office of child support enforcement | ACF. Retrieved from https://www.acf.hhs.gov/css/resource/modifying-support-orders
Thomas, A. (n.d.). Imputing income for child support in texas | DivorceNet. Retrieved from http://www.divorcenet.com/resources/imputing-income-child-support-texas.html
U.S department of State. (n.d.). The freedom of information act: U.S. department of state – Freedom of information act. Retrieved from https://foia.state.gov/Learn/FOIA.aspx