The plan hatched fathers were required to pay for their supposed abandonment during that time. To make it worse, they would be obligated to pay even if ‘abandonment’ was not the situation that led to the mother needing financial assistance or the father living outside of the home. The 1974 amendments, effective July 1, 1975, to strengthen previous child support provisions, established a new part D to Title IV—Child Support and Establishment of Paternity (Burke). States were required to have a child support program in place or face financial penalties, which included, but were not limited to, the loss of Federal incentive monies. One key component within the newly implemented child support establishment program concerned how recipients of AFDC (the title had changed yet back) were mandated to participate in the child support program.

Along with the participation mandate, the law mandated that every applicant “cooperate” with identifying and locating the alleged father and assigning her rights to any support payments received to the State. By signing her rights away to the State, the mother (or custodial parent) forfeits their rights to any child support payments. In exchange, mothers received the monthly stipend and Medicaid benefits at the expense of taxpayers. According to EveryCRSReport (2018), the primary purpose of the child support program was to reduce public expenditures for recipients of cash assistance by obtaining ongoing support from non-custodial parents that could be used to reimburse the state and federal governments for their part of that assistance.

These benefits are awards or grants and legally do not require repayment by the mothers. However, the government discovered that by incorporating an old English law, the expenditures spent on providing for poor children and their mothers could be recovered by filing a lawsuit and obtaining a judgment through the legal system. Before the government could justify punishing fathers who allegedly deserted their offspring and left financial burdens to unsuspecting third parties, the government first amended the 1975 Child Support Act to include more robust enforcement measures relating to child support collections.

In 1984, HR 4325 was passed, which amended part D of title IV of the Social Security Act to:

assure through mandatory income holding, incentive payments to states, and other improvements in the child support enforcement program, that all children in the United States who are in need of assistance in securing financial support from their parents will receive such assistance regardless of their circumstances, and for other purposes.

Financial support from non-custodial parents was gained initially through income withholding or wage garnishments; however, collections would soon extend to bank seizures, income tax interceptions, and several other sources of income. All new collection tactics seemed justified from reimbursement declarations brought forth by the State and federal governments. Welfare programs were initiatives set up by the government to support the poor, developmentally challenged, and disadvantaged groups of a country (Investopedia, 2019). One of the initial mentions of the idea of repayment by either parent in exchange for public benefits occurred during and after the welfare system in America was ‘reformed’ under Former President Bill Clinton. Along with bipartisan support, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1986 was passed and forever changed the dynamics of the welfare and child support systems.

All states require that rights to child support collections be to the government in exchange for cash benefits and Medicaid. Only a handful of states require the same cooperation for other social programs such as the Supplemental Nutritional Assistance Program (SNAP) or food stamps and child care. The reimbursement for welfare is relatively new; however, the idea of reimbursement claims dates back hundreds of years. These claims stem from Sir William Blackstone’s commentaries concerning English law, which became prevalent in the 1800s.

In his reference to fathers and their children, Blackstone determined that specific natural responsibilities should always be fulfilled, despite the relationship (or lack thereof) with the wife. ‘Wife’ is the only appropriate reference for common law and third-party reimbursement. Blackstone’s laws were written and only applied to legitimate children or children born to married parents. According to Blackstone (1766), the duty of parents to provide maintenance for their children is a principle of natural law. English and US courts greatly credit Blackstone in using the common law remedy as to a way for mothers, or the government, to recover monies from fathers when they have allegedly abandoned their offspring.

Based on the Guide for Judges in Child Support Enforcement authored by Michael R. Henry and Victoria S. Schwartz (1987), in the late 1300s, English law courts applied an agency theory to require a father to repay third persons who provided necessaries to the father’s legitimate children. Initially, there had to be express or specific proof of those payments to justify the recovery of money spent on the children. However, the judiciaries in both America and England expanded the actions by allowing third parties to recover for necessaries provided to a man’s wife, and for this action, no showing of express agency was necessary (Henry & Schwartz). However, this government silently implemented this theory into how the modern-day child support and welfare systems operated.

One issue concerning the reimbursement of welfare benefits is that the benefits, as previously mentioned, are grants and not loans and, technically, do not require repayment. Public assistance programs are funded mainly through taxpayer dollars. Based on the child support and welfare reimbursement formula, the government, and not the taxpayers, collects and retains the child support payment when parents assign their rights to the State. However, charged with facilitating the welfare system and disbursement of benefits, the government is not wholly responsible for funding the programs. If any third party deserves repayment for the expenditures spent on providing for the most vulnerable American families, it would be the taxpayers.

The PRWORA implemented strict time limits for which a custodial parent could receive welfare benefits, and it required work in exchange for those benefits. Even with the sweeping changes, there was never mention of the custodial parent repaying the government for any received benefits. Legislators added significant changes to the bill. However, there was an absence of individual mandates or laws to require the repayment of public benefits by the non-custodial parent to a third party. Instead, the states began filing lawsuits for child support orders on behalf of the custodial parent against the man named as the father. The common law remedy laid the foundation for the US to attempt to recover the costs for the government providing for the so-called ‘abandoned’ children.

According to Henry and Schwartz, many US courts merged these two statutory remedies and the common law remedy to create a cause of action on behalf of the mother and third parties for reimbursement of necessities provided for children. Statutory remedies are questionable as they are not uniform across the US. For instance, some states utilize the administrative and hearing process when determining child support, while others use the common law theory. Both pose similar problems when the public addresses welfare reimbursement concerns.

No matter the circumstances, the custodial parent is still required, minus a ‘good cause’ waiver, to assign their rights to child support to the State. The potential father is not required to sign any documentation agreeing to repay any benefits before the State files a lawsuit on their behalf for child support collection recovery. The declaration of support outside the court system as a gift will be discussed in more detail later. Because the child support workers ignore proof of support during initial child support hearings, the non-custodial parent is almost always guaranteed to find himself indebted to the government and owing arrears for public benefits already distributed to the custodial parent. The debt now is State property.

The government almost always calculates child support debt retroactively, and the court-ordered judgment is usually practical on the child’s birthday. The calculation occurs whether the alleged father was made aware of the child’s existence by the mother or not. In many states, no statutory treatment of this issue exists, and the issue rests on common law principles (Henry & Schwartz). No matter what remedy a state applies, the fact remains that welfare benefits are grants and do not require repayment by either parent.

Next, as declared in the opinion of the Supreme Court of Georgia in Hooten v. Hooten (1929), under the common law theory, a claim for reimbursement of necessities occurs against a child’s father to any person who has provided the child with food, shelter, clothing, medical attention, or education (Henry & Schwartz). The keyword in this decision, and any subsequent use of the common law theory in recovering monies from a third party, is the word ‘person.’
Since government agencies are legally not considered a person, there is no justification for pursuing recovery of welfare benefits on behalf of the government, whether for cash or otherwise. This rule should be in effect even while the State collects and retains child support payments on behalf of the custodial parent.

As most know, the government filing lawsuits against citizens to recover monies on behalf of that same government is not new in the US. As early as the 1800s, the government filed civil lawsuits against citizens to recover tax debt. According to the Federal Judicial Center (FDJ), the government filed common-law debt actions to recover unpaid taxes and asked courts to condemn and sell goods seized by officials to settle debt due to the government. Of course, the recovery of a tax debt versus a child support debt should be two utterly different recovery processes.

While paying taxes is arguably mandatory (depending on whom you ask), participation in the child support program is (despite some controversy) voluntary. The Internal Revenue Service (IRS) shows that paying taxes is not voluntary. Any taxpayer who has received more than a statutory amount of gross income in a given tax year is obligated to file a return for the tax year (IRS, 2018). Non-payment means the government can and will pursue the debtor to repay the owed taxes.

While paying taxes is arguably mandatory (depending on whom you ask), participation in the child support program is (despite some controversy) voluntary. The Internal Revenue Service (IRS) shows that paying taxes is not voluntary. Any taxpayer who has received more than a statutory amount of gross income in a given tax year is obligated to file a return for the tax year (IRS, 2018). Non-payment means that the government can and will pursue the debtor to repay the owed taxes.

In contrast, creating a child support debt, especially in Title IV-D cases, is just that…created. The creation of the child support debt, or arrears is based not on taxation laws, as explained in 26 US Code § 6151-Time and Place for Paying Tax Shown on Returns, but natural and common law based mainly on Blackstone. Every jurisdiction is tasked with deciding State-specific child support guidelines. There is a US Code concerning child support; however, the government has not written anything exclusively to recover ‘debt’ accumulated when the government (and not a person) provides for a father’s children. The closest reference to debt collection for children receiving welfare benefits is 42 US Code § 652-Duties of Secretary.

Under this section, Certification of Child Support Obligations to Secretary of the Treasury for Collection, it states, in part and according to Legal Information Institute, that,

the Secretary of Treasury, for collection pursuant to the provisions based on Section 6305 of IRS code 1986, the amount of any child support obligation (including any support obligation with respect to a parent who is living with the child and receiving assistance under a state program funded under part A which is assigned to such State or is undertaken to be collected by such state pursuant to Section 454(4) of this title.

Even when reading the IRS code, no specific statute or law that mandates that an ‘absent’ or non-custodial parent repay any public benefits provided on behalf of his/her children. If anyone attempted to justify reimbursement of public benefits through the child support debt collection process, a more believable part of the code is found in 42 US Code § 454. The reasoning supporting this payback theory is that the child support debt must first be certified before initiating collection actions. According to the Legal Information Institute,

no amount may be certified for collection under this subsection except the amount of the delinquency under a court or administrative order for support and upon a showing by the state that such state has made diligent and reasonable efforts to collect such amounts utilizing own collection mechanisms, and upon an agreement that the state will reimburse the Secretary of the Treasury for any costs involved in making the collection.

Using that part of the legislation is a stretch. There is, again, no explicit language that mentions the requirement that either parent repays public benefits. Additionally, if one were obligated to repay the benefits, the custodial parent is the only one who has agreed with the government. This agreement requires cooperation with child support enforcement in exchange for public benefits and mentions nothing concerning repayment. Simply declaring that a policy becomes policy without executing the proper steps required to implement the policy, such as repaying grant money to the government, is immoral and unconstitutional.

Henry and Swartz explain the use of common law theory in child support orders to recover welfare benefits. They wrote that it is not always clear whether the decisions infer the existence of an agreement or whether the agreement is merely a legal fiction the courts employ to enforce moral duty. The latter is more plausible when considering the agreement, the volunteer aspect, and who the receiver of the benefits is. The custodial parents, most often mothers, are the consenters to the terms and conditions required to receive benefits. Parents needing financial assistance for themselves and their children should be allowed to receive public benefits. However, if anyone is sued for reimbursement, it should be the receiver.

Furthermore, since the revamp of ADC to TANF and requirements substantially tightened, custodial parents, in large part, are already paying for those benefits. Custodial parents, forced to work in exchange for the benefits, meant that the roles transferred from welfare provider and recipient to employer and employee. The government forcing the non-custodial parent to pay for those same benefits that the custodial parent has worked to receive constitutes double payment for a supposedly free taxpayer-paid benefit. These benefits provided a safety net for low-income and poor parents and children. However, they have transformed into a means of government profits from the unfortunate circumstances of the most vulnerable citizens. With the current child support officials claiming that it has a right to collect child support as a third party for providing welfare benefits for needy children, other issues besides the absence of statutes and regulations present a problem.

Concerning the cause of action in common law cases, the basis for launching such a claim is pretty cut and dry compared to other aspects of the child support program. According to Henry and Schultz, the elements of the cause of action were as follows:

• Paternity in the defendant
• No court order for support ordered by the court
• His failure to provide support
• Provision of support by the plaintiff
• Necessity
• Reasonableness of the support provider

A conundrum with the causes of action, particularly with his failure to provide support, occurs when the non-custodial parent is not made aware of the birth or existence of the child. This situation mainly occurs when children are born to unmarried parents, and Blackstone’s law of nature, as aforementioned, applies to children born within the contract of marriage. Because common law remedy allows the third party to recover expenses already spent by a third party on the wife and children, the recovery of welfare benefits on this basis only applies to costs previously accrued and not to future expenditures.

After the alleged father is notified about the child and his duty to provide for the child financially, the issue arises that the potential father is granted the opportunity to provide before the mother or the government can initiate any recovery actions. Based on the case of McSwain v. Holmes, which the South Carolina Supreme Court decided, this is a requirement that the plaintiff first demand that the absent parent meets the obligation before assuming it and seeking reimbursement (Henry & Schultz).

The decision is contradictory if the father is unaware of the child at all. State government officials have identified a way to force child support orders and the repayment of the welfare bill onto the shoulders of the non-custodial parent even when the non-custodial parent does provide for their child and provides proof. Cleverly or deceitfully, whichever satisfies the narrative, judges have been ordered to ignore any money or items such as diapers, clothing, or even cars for the custodial parents to transport their children and deem any form of providing for non-residential children as a gift. Child support paid directly to the custodial parent is considered a gift by court officials, as mentioned earlier, and has a reason that is overwhelmingly beneficial to the state.

However, child support officials declare that by establishing a child support order and receiving payments through the State, the parent is more likely to receive steady and total child support payments. However, judges’ clear motives for ignoring payments made outside of the court order are that the welfare benefits can be calculated and added to the total arrears that the non-custodial parent will pay. According to the Administration for Children and Families (ACF), many states consider in-kind payments or cash paid directly to children as gifts; therefore, they do not credit these payments against child support obligations. Remember that to invoke the common law theory, the financial assistance provided for the child only applies to money already spent. It cannot apply to current or future spending.

There are several problems with ignoring the money spent on children as it applies to whether or not a child support complaint should be filed, let alone ordered. First, about a parent receiving welfare benefits, a custodial parent can apply and receive public benefits while simultaneously receiving money and items from the non-custodial parent on behalf of their child. Because there is no accountability within the system, no child support caseworkers are tasked with verifying that the non-custodial parent is failing to provide. By not having a reliable system to track whether this is occurring, there is no natural way to determine if the non-custodial parent is and has been taking care of their children.

It is more beneficial to the custodial parent to withhold the information concerning whether the other parent is providing it. Why? Because he or she can receive public benefits and direct child support payments (and items) from the other parent and face no repercussions. Remember, by law, public benefits are grants and not loans, and unless they are found guilty of welfare fraud, there is no requirement that they have to repay the benefits.

The government has invoked the common law theory to recover money from alleged deserters where the only applicable law is natural or moral. Neither has standing in the court where child support is concerned, and that is why there are no statutes mandating welfare recovery. Additionally, the plaintiff, i.e., the government, must notify the possible defendant that it expects repayment for providing cash, medical benefits, food stamps, child care, etc., for their children.

As it stands, previously and currently, custodial parents are permitted to apply for and receive public benefits without the consent of the non-custodial parents. There is no need for the non-custodial parent to agree to or even acknowledge that their children will receive public benefits. Suppose the government upholds the common law or statutory remedies when attempting to recover welfare costs. In that case, the non-custodial parents MUST be made aware of the welfare contract and be offered the opportunity to pay for the offered benefits. Accordingly, they should be required to enter into a contract agreeing to repay said benefits received on behalf of their child. Take, for instance, the mandate that all custodial parents, minus a good cause waiver, must assign their rights to child support payments over to the State in exchange for TANF and Medicaid benefits.

It is essential to identify not only what the custodial parent is receiving when forfeiting their rights to child support payments but, more importantly, how much the non-custodial parent will pay for those benefits. In 2014, a custodial parent receiving benefits in Alabama would receive $215 per monthly cash for herself and two children. Add to that, $215 per child in Medicaid benefits. Excluding any Medicaid she may receive for herself, the recipient had to sign her rights to child support payments over to the State for a monthly grant of $835 or $8,410 over six months. Based on the common law theory, the non-custodial parent would be required to repay this money after six months and without all of the other causes of action requirements.

Due to the government charging the parent retroactively, he will begin the child support obligation indebted to the State based on a fictitious debt. The ACF explains that two parties have claims on child support collections made by the state. If the non-custodial parent does not provide, then the child support belongs to the taxpayers. In the case of families that have received public aid, taxpayers who paid to support the destitute family by providing a host of welfare benefits also have a legitimate claim on the money (ACF).

Once again, no agreement between the non-custodial parent and the government, either through the child support agency or the presiding judge, justifies a repayment. Simply stating that the government has a legitimate claim to child support money without implementing existing law means no legitimate law. The lack of fundamental law further verifies that a child support order should never be issued against the defendant based on the common law theory. Remember that all subsequent payments supposed to “repay” the government for welfare benefits are now government-owned and retained by the State.

This process occurs even after the family has left the welfare system. Because any support provided by a parent is considered a gift, the total debt will be due immediately. Since it would be considered past-due to the State, based on our earlier example in Alabama, the State will be permitted to charge 12% on the newly established and now delinquent child support debt. Not only will the non-custodial parent eventually pay for the welfare benefits, but the State will continue to collect and retain the child support monies paid on that particular Title IV-D case after the custodial parent has exited the welfare system.

Since it would be considered past due to the state, based on our earlier example in Alabama, the state will be permitted to charge 12% on the newly established and now delinquent child support debt. Not only will the non-custodial parent eventually pay for the welfare benefits, since the government has declared itself a third party, in most cases, but the state will also continue to collect and retain the child support monies paid on that particular Title IV-D case after the custodial parent has exited the welfare system.

The government declared the money as taxpayer recovery money, and the same taxes are collected for these programs, so where are the tax dollars? Questioning the money’s whereabouts is a question that government officials have been reluctant for decades to answer. When the government owns the child support case and the arrears, the child is not the true beneficiary of the money collected for child support. Actual ownership of funds is an issue, no matter which government’s remedy to collect money from an absent parent.

By continuing to punish and collect money from non-custodial parents under the common law theory, the government continues to violate the rights of parents by using an already unconstitutional child support system. If government officials believe that moral obligation can somehow be made a legal obligation, they should introduce legislation to be passed and implemented. The government must immediately erase all child support debt owed under the Title IV-D program until that day. We will continue to fight for justice and reform, or The Child Support Hustle will be a problem for future generations.

References:

Administration for Children and Families. (n.d.). Enforcement of support obligations. Retrieved from

Blackstone, W. (1766). Of parent and child. In Commentaries on the laws of England. Retrieved from

Burke, V. (1984, February 24). Brief legislative history of title iv-a of the social security act | MU Digital Library, University of Missouri. Retrieved from https://dl.mospace.umsystem.edu/mu/islandora/object/mu%3A84527#page/22/mode/2up

EveryCRSReport. (2018, February 14). Child support enforcement annual user fee: In brief. Retrieved from https://www.everycrsreport.com/reports/RS22753.html

Federal Judicial Center. (n.d.). Jurisdiction: Civil, United States as a party. Retrieved from https://www.fjc.gov/history/courts/jurisdiction-civil-united-states-party

Garfinkel, I. (n.d.). The evolution of child support policy. Retrieved from https://www.irp.wisc.edu/publications/focus/pdfs/foc111d.pdf

GovTrack. (1984, August 16). Child support enforcement amendments of 1984 (1984 – H.R. 4325). Retrieved from https://www.govtrack.us/congress/bills/98/hr4325

Henry, M. R., & Schwartz, V. S. (1987). A Guide for judges in child support enforcement. Retrieved from National Institute for Child Support Enforcement website: https://www.ncjrs.gov/pdffiles1/Digitization/102378NCJRS.pdf

Internal Revenue Service. (2018, March). The truth about frivolous arguments – Section I (a to c). Retrieved November 10, 2019, from https://www.ncjrs.gov/pdffiles1/Digitization/102378NCJRS.pdf

Investopedia. (2007, June 27). Welfare definition. Retrieved from https://www.investopedia.com/terms/w/welfare.asp

Legal Information Institute. (n.d.). 42 U.S. Code § 652 – Duties of secretary. Retrieved from https://www.law.cornell.edu/uscode/text/42/652