Dear Judge: Child Support Is NOT a Gift

3E9F4587-A4D8-42A6-B80A-4082252FDB14-572-0000002CDDFB3C6A

Credit: CNBC.com

Kenya N. Rahmaan

 

It may be true that child support orders are mandated in all divorce cases when underage children are involved, but what about child support orders when the parents were never married.  In those cases, child support orders are only mandated in certain situations. Child support, as defined by the Cornell Law School, refers to the sum that the non-custodial parent must pay to the custodial parent.  This definition is simple enough even though it fails to include key information concerning what makes participation in state operated child support mandatory or on what conditions this mandate might appy. If it was to be included in Cornell’s definition, it would surely have to include that unless the custodial parent receives certain Temporary Assistance for Needy Families (TANF) benefits, they do not have to file paperwork through the court system at all.  Only in those instances does participation with the child support program turn into a mandatory requirement.

The obvious reasoning behind this mandate is that the non-custodial parent somehow becomes financially responsible for the ‘repayment’ of these welfare benefits (http://bit.ly/2kpvhAA).  However, public benefits are grants and not loans. Non-custodial parents are not the receivers of said benefits nor did they sign a promissory note guaranteeing repayment. Therefore, they should not be held responsible for any repayment of the benefits.  All custodial parents, whether involved with welfare or not, are essentially filing a lawsuit against the non-custodial parent claiming that he or she has failed to financially provide for their offspring. 

In welfare cases, the state represents the custodial parents, but in all cases, the non-custodial parent has the right to defend themselves against the allegations.  Since a child support complaint is initiated in the same manner as most other lawsuits, the defendant, in this case the non-custodial parent, has the right to face their accuser and prove their innocence.  By showing receipts (and other documents), they are proving that they do, in fact, provide for their child. In a criminal case, that proof would result in a case dismissal without a judgment being issued.  However, this is not what happens in child support cases.

In almost every case that has been recently reported to The Reform Child Support Now! Movement (http://bit.ly/CSHDonate), parents who have provided proof of paying money, buying clothes, paying household utilities for their child’s primary residence, and providing for their children in every other way, has left the courtroom with child support orders.  This has happened after the child support officiants declared all of the financial support as nothing more than a ’gift’. By ignoring the evidence provided by the defendant and issuing a child support order, child support caseworkers, court officials, and judges are clearly violating the rights of non-custodial parents.

The only justification that family court officials can use when deeming that money (and all purchases) as gifts is based on the absence of any legal involvement.  According to FindLaw,

In legal terms an “order” is a command entered by a judge (usually a family court judge in child support cases) instructing parties to take some action (i,e, make periodic child support payments in a set amount) or fact penalties for violation of the order.

But the question still arises as to why judges and child support overseers chose to ignore evidence of support payments and non-custodial parents become unwilling participants in a voluntary child support program after successfully defending themselves against their accusers.  The main and obvious reason is that the state and federal governments want child support to be paid through court ordered child support due to the amount of money that is generated for processing child support cases through the government.

Take for instance, arrears that are automatically applied to child support cases after establishment through the courts.  These arrears are based on the age of the child instead of when the father was notified about the existence of the child.  Retroactive child support can include the current monthly payment and medical support amounts, but other costs can be added. This is the reason that a child support order can immediately jump from a few hundred dollars to a nearly impossible debt for the non-custodial parent to pay in their lifetime.  Based on a publication released by The National Council of Juvenile and Family Court and Family Court Judges (NCJFCJ) (2008), retroactive support can include:

  • legal fees,
  • genetic testing costs, 
  • birthing costs, 
  • fees, 
  • and a provision for late payment charges,
  • and/or interest on any and all of the above

 

If the non-custodial parent has paid for any of these costs prior to the issuance of court ordered child support, especially with cash, they may not have the proof of payment.  But without the bills to prove non-payment, there would be no need to order that the non-custodial parent pay child support through the court system. Yet, non-custodial parents still report that even after showing that they have regularly provided for expenses, sometimes more than half, they were left paying retroactive support.  This results in them being indebted to the other parent for sometimes tens of thousands of dollars.

Another reason why child support and family court officials are ignoring proof of child support payments made outside of court involvement has to do with the fees that states are permitted to charge annually for processing the child support payment through State Disbursement Unit (SDUs).  According CRSReport.com (2018), 

Section 454(6)(B)(ii) of the Social Security Act (42 U.S.C. 654) requires that states impose an annual user fee for Child Support Enforcement (CSE) services provided to families with no connection to the welfare system. (The act also requires that an application fee be collected and provides the authority to recover costs).

The annual fee had been previously capped at $25 and could only be charged after the agency had collected at least $500 on behalf of the custodial parent.  However, thanks to H.R.1892, The Bipartisan Budget Act of 2018, sponsored by Representative John Larson(D-CT-1), that fee has been increased to $35 annually.  On the surface, that may not seem like much money, but as a collective, the amount that the government stands to collect is quite substantial. Currently 27 jurisdictions collect the fee directly from child support payments.  The remaining states will either pay the money directly from state funds or collect the fee directly from the custodial or non-custodial parent based on the guidelines.

 

IMG-0481

Credit:  Federal Office of Child Support Enforcement

 

Of those aforementioned jurisdictions and based on the number of open non-Title IV-D cases reported in 2018, if the fee had been paid on all cases, the amount collected would have been nearly $125 million.  Yes, you read that number correctly. And this is not the end of how fees can be charged to parents who have non-welfare related child support cases. Based on an article written by the National Conference of State Legislators (NCSL) (2013), agencies may also charge fees for legal work done by agency attorneys or location costs to non-public assistance clients.  Imagine how quickly $125 million increases based on these added costs.

Interestingly, Texas, the state with the highest number non-Title IV-D with 1,100,544 reported in 2018 (OCSE, 2019), charges $3 for cases that are classified as ‘registry only’ cases.  Registry-only child support cases, according to ExpertLaw (2016), means that the State of Texas’ involvement is limited solely to recording and disbursing child support and/or cash medical support payments.  If we only consider a third of the open non-Title IV-D cases in the state, this minimal involvement would have netted a little over a million dollars. This is free money for the state and could be the direct result of a judge or some other child support official choosing to ignore the proof of financial support provided by the non-custodial parent when ordering that child support be paid through the court.  What is truly frightening about this scenario is that the child support/family court systems operate with almost zero accountability and under a nearly impenetrable blanket of immunity.

Another governmental financial gain occurs when child support officials deem payments as gifts and parents become subject to all punishments executed for non-payment of support. Once those punishments have been activated, it is expensive, in both money and time, to restore and redeem what has been revoked.  In cases where states suspend drivers licenses (excluding professional and recreational licenses), not only is a parent prohibited from driving to and from a job, many times they risk incarceration every time they drive in order to earn a living.  The task of restoring a driver’s license becomes even more difficult when arrears have been charged to the account.

Although reinstatement guidelines vary from state-to-state, according to the Congressional Research Service (CRS) (2011), arrearages must be paid in full and monthly child support payments must be paid on-time or the noncustodial parent must pay an amount specified in a legal agreement (e.g., six consecutive payments of the court-ordered amount).  Being required to pay a large amount of debt before a license can be restored can prove overwhelming for a parent, especially when considering that the money will not be used to support his/her child. Ensuring that all monies are going to support the children is another reason that paying outside of the SDUs is beneficial to the non-custodial parent and the child.  In some states, such as South Carolina, if paying the full amount is not possible, in addition to paying a portion of the child support, there is an opportunity to secure special driving privileges for a fee.

BD9CBF73-FC4F-4EAD-A2EE-D0853310CF52-572-0000002D1C399944

Credit: The Law Offices of Lee Meadows

According to Justia US Law, the fee for a special-route restricted driver’s license is one hundred dollars.  Let’s take, for example, that a third of the 67,000 plus non-TANF cases reported in South Carolina in 2018 belonged to parents who had their licenses suspended due to non-payment of child support.  Based on 22,435 cases, the Bureau of Motor Vehicles (BMV) could stand to gain approximately $2,243,566 in special-route restricted fees. Of the $100, twenty dollars of the fee must be deposited in the state general fund and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles (Justia US Law).  Again, this is even more reason why judges are ignoring proof of support when child support complaints are being filed.

Last, but certainly not least, are the non-child support related monies that can be collected when incarcerating an alleged child support debtor in a local jail while they attempt to purchase their freedom.  Unfortunately, too many parents are arrested and held behind bars, not because they willfully fail to pay child support, but because they can not afford to pay the court ordered child support.  When considering the costs related to jailing a prisoner, it becomes more clear why those tasked with deciding between dismissing a child support case or ordering child support be paid through the court system, chose the latter. They are not held accountable and the prison industry is big business in the United States.

According to Christian Henrichson, Joshua Rinaldi, and Ruth Delaney of the Vera Institute of Justice (2015), the jail is one of the community’s largest investments and its funding is drawn from the same source that supports public hospitals, schools, social services, roads, and many other essential functions of local government.  With that in mind, ignoring proof of providing child support without a court order and then forcing parents to pay through the court guarantees that punishments, such as incarceration, will be executed when payments cannot be made for any reason. One way that the government uses incarceration to make money off of the backs of jailed individuals is based on inmate generated revenue.  Henderson, et. al (2015) reported that most jails – 90 percent nationally-generate revenue from people they incarcerate. If judges and child support officials are presented with evidence that a non-custodial parent has been faithfully providing for their children, the reasons why a court ordered child support judgment would need to be ordered, if not for financial gain for the government, is a mystery.  

F4E5D604-883F-45C3-87C6-A8727F6D802D-572-0000002D33DA3EB9

Credit: Prison Policy Initiative

There are several products and services that jailed persons must pay for that generate substantial revenue for the government, as well as private corporations, ranging from toothpaste to telephone services.  According to Henderson, et. al (2015) revenue averages $381 per inmate per year for phone calls, $452 for commissary purchases, and $52 for medical fees. While on face value, these figures may seem like a mere drop in the bucket when compared to the overall costs associated with the prison epidemic plaguing the United States.  However, by inserting a third of the number of non-Title IV-D cases that were reported in California during 2018 and supposing that all of the non-custodial parents were incarcerated for failure to pay child support, a more realistic picture is painted.

In California, a person can be imprisoned for one year after being convicted of the misdemeanor charge of abandonment and neglect of children. (Cal. Penal Code, §270)  If a third of approximately 260,000 parents with open child support cases were sentenced, the revenue generated would be quite lucrative.  For phone calls, commissary purchases, and medical fees, the inmate generated revenue for 2018 alone would have been $24,992,256, $29,417,968, and $3,384,368, respectively.  When considering the revenue that could not be generated if child support orders were not being processed through the court system, the potential revenues would decrease to zero automatically.  Thus, leaving local governments to rely on its main resource, taxpayers, to fund budgets, employee benefits, inmate health costs, and all other expenses related to imprisoning people.

To be clear, participation in the child support program outside of divorce and the welfare system (barring special circumstances) is strictly voluntary.  This is especially true when the non-custodial parent provides reliable evidence that he/she has been providing for their child without a court order.  As with any civil lawsuit, a child support hearing requires that the burden of proof lies on the plaintiff to show that the defendant has failed to support their child.  When child support case workers or any person charged with officiating a child support hearing purposefully ignores the presented evidence, they are undoubtedly, committing misconduct.

They should be held accountable and punished just as parents will be punished if they fail to make the court ordered payments.  There is no reason that child support payments made outside of the system should be considered a gift simply because government entities have not been unable to deduct what they feel is their entitlement to a child’s money.  Quite simply, when the child support system became incentivized and the profiting from parenthood became the societal norm, accountability and constitutionality were tossed out of the window.  Unfortunately, almost all of these improper occurrences happen, not in the best interest of the children, but in the best interest of the government. And this needs to stop.

References

Child Support 101: State Administration. (2013, April 1). Retrieved from http://www.ncsl.org/research/human-services/child-support-adminstration.aspx#How_Much_Is_Charged_

Cornell Law School. (2014, November 26). Child support. Retrieved from https://www.law.cornell.edu/wex/child_support

EveryCRSReport.com. (2011, April 11). Child support enforcement and driver’s license suspension policies. Retrieved from https://www.everycrsreport.com/reports/R41762.html

EveryCRSReport.com. (2018, February 14). Child support enforcement annual user fee: In brief. Retrieved September 7, 2019, from https://www.everycrsreport.com/reports/RS22753.html

ExpertLaw. (2016, October 22). How to find out the balance of your child support arrears. Retrieved from https://www.expertlaw.com/forums/showthread.php?t=203888

Find Law. (n.d.). Child support by court order. Retrieved from https://family.findlaw.com/child-support/child-support-by-court-order.html

Henrichson, C., Rinaldi, J., & Delaney, R. (2015, May). The price of jails: Measuring the taxpayer cost of local incarceration. Retrieved from https://storage.googleapis.com/vera-web-assets/downloads/Publications/the-price-of-jails-measuring-the-taxpayer-cost-of-local-incarceration/legacy_downloads/price-of-jails.pdf

Justia US Law. (2007, June 4). 2012 South Carolina Code of laws :: Title 56 – Motor vehicles :: Chapter 1 – DRIVER’S LICENSE :: Section 56-1-171 – Suspension for failure to pay child support; route-restricted license. Retrieved from https://law.justia.com/codes/south-carolina/2012/title-56/chapter-1/section-56-1-171/

National Council of Juvenile and Family Court Judges. (2008, February). Introduction: Making child support orders realistic and enforceable. Retrieved from http://www.ncjfcj.org/sites/default/files/NCJFCJ%20Bench%20Cards.pdf