Accountability For Misuse of Child Support Urged

January 12, 2012  |  No Comments  |  by admin  |  Legislative

Page 4 April 5, 1993 Cite as 7 Mich. L.W. 679


To The Editor:

I am submitting this Letter-to-the-Editor to assert that the time has arrived to demand accountability on the use of child support. Michigan has decided to “get tough” on the enforcement of child support and is on the verge of adopting draconian child support enforcement laws at both the state and federal levels. Such efforts have relied on numerous invalid assumptions which merit analysis before initiating actions which will have profound impact on payors of child support. This analysis will ask the reader to realize that unless accountability for child support exists, the best interest of the child is
ignored.

The primary appeal of strict enforcement of child support orders is the financial needs of children. Everyone agrees that children have financial needs which must met by their parents. However, if child support obligations are not used by the custodial parent to provide for the welfare of the child(ren), enforcement of child support obligations does not benefit the child(ren). Would anyone believe that our public policy should allow the recipient of child support payments to spend such funds on illegal drugs or on a luxury item for mother, e.g. on a new fur coat.

Very few noncustodial parents (and even fewer teenage children of divorce) believe their child support payments are all being spent on behalf of the children. Moreover, such child support only fulfills one of two parents obligation and should be augmented by the other parent’s financial support. Ironically, we only impose a legal obligation of support on the noncustodial parent.

We also assume the custodial parent is the best conservator of such funds and refuse to consider any alternative arrangements, even if the non-custodial parent has far greater financial skills and the custodial parent is a spendthrift. Which parent should be treated more harshly, a parent who spends child support payments received from the other parent on himself or a parent who fails to pay their ex-spouse the court ordered child support? Is a society concerned about the best interest of children if it imprisons parents (or revokes their auto and occupational licenses) who fail to pay their ex-spouse court ordered child support but fails to insure that such payments benefit the children. Why don’t we impose any sanctions on a parent who spends child support payments on themselves? We must either assume that such payments are always properly applied, that the cost of enforcement would be prohibitive or actually want to benefit the custodial parent and have little concern for children.

At the extreme upper end, Isaiah Thomas has a child support obligation of almost Two Hundred Thousand Dollars per year. Although the media reported that the mother of his child failed to obtain an increase, did anyone inquire how such funds were being spent? Does anyone believe all of such amount is properly spent on Isaiah’s child? As noted in the current issue of the Advocate, the journal of the Family Law Section of the American Bar Association (and the common complaint of divorced fathers) often the child support payments for one child is used for other children or even to support an extended family. Where the custodial parent remarries, particularly where additional children are born, the children of the first marriage are often neglected or treated less favorably than children of the second marriage. Sadly, children often are neglected and the child support paid for their benefit is spent on luxuries for the mother or to satisfy her addiction(s).

Experience with human nature has forced everyone to recognize that where accountability is absent, abuse can be assumed. Recent examples include the Oakland County Sheriffs office, the Michigan Legislature and Detroit’s Police Chief. If public officials cannot be trusted with absolute secrecy over the use of funds entrusted to them, why would anyone assume that the ten million custodial parents in our country would all be above reproach? Every reader can certainly list numerous additional examples of abuse that occurs when inadequate accountability exists. No other example of such blind faith exists in our society.

Whenever any individual is entrusted with money to be spent on behalf on a third party, an accounting of the use of such funds is the minimum requirement. Without such accountability, our tax law assumes that the funds constitute either taxable income or a gift to the recipient. The laws applicable to fiduciaries, partnerships, corporations, trusts and estates all incorporate a strict accountability standard. Perhaps the closest analogy exists in Social Security benefits paid on behalf a deceased parent for a dependant child. The surviving parent is required to deposit such funds into a separate bank account and to file an annual accounting on how such funds are spent.

If the social security office believes such accountability is necessary, is it any wonder that noncustodial parents feel abused by a system that doesn’t even allow them the right to ask how their payments were spent?

Without accountability, the right to receive child support does not exist!

The assertion that the cost of requiring an accounting would be prohibitive cannot logically be sustained. Accountability may actually save taxpayers money because many noncustodial parents are so angry with the system they know treats them abusively and fails to insure the money they pay is received by their children that they refuse to pay any amount, abandon their children, jobs and neighborhood. A fairer system would remove much of the anger and bitterness in divorce.

Accountability would partially diminish the financial reward to the parent that succeeds in preventing the child’s other parent from remaining actively involved in their child’s life and should promote cooperative parenting. Moreover, a law which allowed the noncustodial parent the right to an accounting but left the enforcement to the noncustodial parent would not inherently force the Friend of the Court to incur any costs. The requirement could be as simple as requiring a separate bank account, a percentage allocable to household expenditures without separate accounting and an annual accounting to the noncustodial parent of the balance. No enforcement costs need be assumed by the Friend of the Court and the sanctions for failure to account for such funds could be limited to repayment of funds taken without support. I have enclosed a copy of the accountability requirements for social security and revised language which would require accountability for child support. If you agree with this proposal, please advise the Family Law Section Council, your State Senator and Representative. _________ offered the following amendments to House Bill 4138:

1. Amend Sec. 33 to add a new section (3) to provide as follows:

(a) Whoever receives payment of money ordered by the circuit court under this subchapter for the use and benefit of a child and having received such a payment, knowingly and willfully converts such a payment, or any part thereof, to a use other than for the use and benefit of such child shall be guilty of a felony and upon conviction thereof shall be fined as deemed appropriate by the circuit court or imprisoned for not more than five years, or both. In the case of any violation described in the preceding sentence, including a first such violation, if the circuit court determines that such violation includes a willful misuse of such funds by such person, the circuit court shall also require that full or partial restitution of such funds be made to the child or a conservator appointed for such child.

(c) Any individual convicted of a felony under this section may not be a recipient of further payments of money ordered by the circuit court under this subchapter for the use and benefit of a child.

(d) If a court of competent jurisdiction determines that a representative payee has misused any child support paid to such representative payee, the Friend of the Court shall promptly terminate payment of child support benefits to such representative payee pursuant to this subsection and certify payment to an alternative representative payee or to the individual, if not a minor, or to a conservator for such child.(5)

(e) In any case where payment under this subchapter is made to a person other than the individual entitled to such payment, the Friend of the Court shall establish a system of accountability monitoring whereby such person shall report not less often than annually with respect to the use of such payments. The Friend of the Court Advisory Board shall establish and implement statistically valid procedures for reviewing such reports in order to identify instances in which such persons are not properly using such payments. The Friend of the Court may require a report at any from any person receiving child support payments on behalf of another, if the Friend of the Court has reason to believe that the person receiving such payments is misusing such payments.(6)

(f) The Friend of the Court shall include as part of its annual report required under ___________, information with respect with respect to the implementation of the proceeding provisions of this subsection, including the number of cases in which the representative payee was changed, the number of cases discovered where there has been a misuse of funds, how any such cases were dealt with by the Friend of the Court, the final disposition of such cases, including any criminal penalties imposed, and such other information as the Friend of the Court determines to be appropriate.(7)

Phillip J. Holman, Esq.

National Congress for Men and

Children, Michigan Chapter


The footnotes, below, were omitted from the published version of this letter:

1. “A taxpayer who receives an amount under a claim of right, without restrictions as to its disposition, has received income for tax purposes…”, RIA Federal Tax Coordinator 2nd, J-8000 and extensive cases cited in footnote 1. In fact, an excellent argument exists that under current Michigan cases which provide that no restrictions on the disposition of child support exists, all child support received is taxable to the recipient. The taxpayer does not have taxable income where he does not have an unrestricted right to the funds, but holds them as a conduit for either the payor or the payee. See RIA Federal Tax Coordinator 2nd, J-8004 and cases cited therein. Thus in Illinois Power v. C.I.R, 792 F2d 683, 689 (6th Cir, 1986) the court stated:

“Where …the taxpayer’s obligation to refund the money…is contingent, the money is taxable as income….The underlying principle is that the taxpayer is allowed to exclude from his income money received under an unequivocal contractual, statutory, or regulatory duty to repay it, so that he really is just the custodian of the money.” Thus the recipient of child support does not receive taxable income if there is an unequivocal statutory duty to use such funds for the children, but not otherwise.

Internal Revenue Code 71 provides in relevant part, as follows:

“(a) General Rule.–Gross income includes amounts received as alimony or separate maintenance payments…. (c)
Payments to Support Children.–

(1) IN GENERAL.–Subsection (a) shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of the children of the payor spouse.”

The above language led Commerce Clearing House to state in its explanation in Standard Federal Tax Reporter at 6095.09:

“It has always been clear from the terms of the statute that when payments are specifically designated by the terms of the decree, instrument, or agreement as a sum payable for the support of a minor child, they are neither deductible by the payee nor taxable to the recipient.

Prior to the Tax Reform Act of 1984, amounts were not considered ‘fixed’ unless the decree, instrument, or agreement specifically designated that such amount was designated as child support. The Tax Reform Act of 1984 overruled that portion of the Lester (referenced below) decision …”

for amounts reduced upon the happening of a contingency related to a child of the payor” (i.e. attaining a specified age, leaving school, etc.). Internal Revenue Code 71 (c)(2) treats the “amount of such reduction as an amount fixed as payable for the support of children of the payor spouse.”

In Merrill v. Commissioner 34 TCM 688 (1975) the court refused to consider the father’s argument that some portion of the payments designated as child support were never received by the children and were instead used by the mother for her own support and maintenance. The court cited Lester for the proposition that “Congress has established a hard and fast rule that the language of the decree is conclusive. 366 U.S. at 303…. To shift the tax burden from one spouse to the other on the basis of extrinsic evidence of the parties intent not embodied in the terms of the decree or incorporated in the agreement, or of their subsequent conduct would defeat this apparent legislative purpose.”

The Court failed to address the issue of whether the amounts would be included in the taxable income of the recipient if no legal obligation existed (as contrasted with intent or actual conduct) to use such funds for the benefit of the children. For other cases which considered only language in decree and failed to reach the issue of whether a legal obligation to use such funds for the benefit of the children existed, see Commissioner v. Star, 48 TCM 1063 (1984) ; Commissioner v. J. B. Platt, 51 TCM 49 (1985); Commissioner v. Walstatter, 63 TCM 2389 (1992). In Commissioner v. Lester, 366 U.S. 299 (1961)
the court held that in order for payments to constitute child support rather than alimony “the ‘written instrument’ must ‘fix’ that ‘portion of the payment’ which is to go to the children. Otherwise, the wife must pay the tax on the whole payment.” Importantly, the United States Supreme Court adopted the claim of right doctrine, stating at 366 US 303-304:

“One of the basic precepts of the income tax law is that ‘[t]he income that is subject to a man’s unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not.’ Corliss v. Bowers, 281 US 376, 378…(1930). Under the type of agreement here, the wife is free to spend the monies paid under the agreement as she sees fit. ‘The power to dispose of income is the equivalent of ownership of it. ‘ Helvering v Horst, 311 US 112 …(1940). Including the entire payments in the wife’s gross income therefore, comports with the underlying philosophy of the code. As we have frequently stated, the Code must be given ‘as great an internal symmetry and consistency as its words permit.’ (citation omitted).

It does not appear that the Congress was concerned with the perhaps restricted use of un-specified child-support payments permitted the wife by state law when it made those sums includable in the wife’s alimony income. Its concern was with a revenue measure and with the specificity, for income tax purposes, of the amount payable under the terms of the written agreement for support of the children. Therefore, in construing that revenue act, we too are unconcerned with the variant legal obligations, if any, which such an agreement, by construction of its nonspecific provisions under local rules, imposes on the wife to use a certain portion of the payments solely for the support of the children. The Code merely affords the husband a deduction for any portion not specifically earmarked in the agreement as payable for the support of the children.

As we read the 22(k), the Congress was in effect giving the husband and wife the power to shift a portion of the tax burden from the wife to the husband by the use of a simple provision in the settlement agreement which fixed the specific portion of the periodic payment made to the wife as payable for the support of the children. (citations abbreviated and emphasis added). Thus, in Lester, the court believed that the general rule under Corliss and Helvering v Horst was consistent with the rule of requiring inclusion in the wife’s income under Internal Revenue Code 22(k). Thus internal symmetry was maintained with a two prong standard the court considered. In order for periodic payments to be excludeable from a wife’s income: (1) the recipient must not have unfettered command over the use of such funds, rather there must be a legal obligation that such funds be used for the support of the children; and

(2) the agreement must expressly fix the portion of the payments which are to be used for the children.

The Tax Reform Act of 1984 overruled only the portion of Lester which required the agreement to “fix” the portion of the funds which are specifically allocated to child support in the agreement. The Act provides that payments of amounts which are reduced by the terms of the agreement upon the happening of an event related to the child, are be sufficiently fixed by the agreement to constitute child support. Thus such provisions satisfy the second prong of the standard announced in Lester. However, based on Helvering v Horst and the extensive cases which follow this pervasive and basic rule of tax law, unless a legal obligation to use such funds for the children exists, such amounts are taxable income to the recipient. In effect, such amounts are not “child support” as contemplated by federal tax law, unless state law imposes a legal obligation to use such amounts for the child. Any other construction would violate the rule that the Code must be given as great an internal symmetry and consistency as its words permit. It may be important to distinguish between amounts deductible by the payor as alimony and amounts excludeable from the recipient’s income. Even though amounts may not qualify as deductible as alimony by the payor and taxable as alimony by the recipient, under Helvering v Horst, the recipient receives taxable income if there is no legally enforceable duty to account for the use of such funds.

2. To avoid a power to obtain funds held in trust from being taxed as a gift to the holder of the power, a clearly measurable standard under which the holder is legally accountable is required, see RIA Tax Coordinator 2nd., Q-1931.

3. Derived from federal provisions applicable to social security benefits, 42 USC 408, which provides in relevant part as follows:

408. Penalties (a) In general

Whoever–

(5) having made application to receive payment under this subchapter for the use and benefit of another and having received such a payment, knowingly and willfully converts such a payment, or any part thereof, to a use other than for the use and benefit of such person; …

shall be guilty of a felony and upon conviction thereof shall be fined under Title 18 or imprisoned for not more than five years, or both. … In the case of any violation described in the preceding sentence, including a first such violation, if the Court determines that such violation includes a willful misuse of such funds by such person…, the court may also require that full or partial restitution of such funds be made to the individual for whom such person or entity was the certified payee.

4. Derived from federal provisions applicable to social security benefits, 42 USC 405, which provides in relevant part as follows:

405. Evidence, procedure, and certification for payments

(j) Representative Payee

(1) If the Secretary or a court of competent jurisdiction determines that a representative payee has misused any individuals benefits paid to such representative payee…, the Secretary shall promptly revoke certification for payment of benefits to such representative payee pursuant to this subsection and certify payment to an alternative representative payee or to the individual….

5. Derived from federal provisions applicable to social security benefits, 42 USC 405, which provides in relevant part as follows:

405. Evidence, procedure, and certification for payments

(j) Representative Payee

(1) If the Secretary or a court of competent jurisdiction determines that a representative payee has misused any individuals benefits paid to such representative payee…, the Secretary shall promptly revoke certification for payment of benefits to such representative payee pursuant to this subsection and certify payment to an alternative representative payee or to the individual….

6. Derived from federal provisions applicable to social security benefits, 42 USC 405, which provides in relevant part as follows:

405. Evidence, procedure, and certification for payments (j) Representative Payee

(3)(A) In any case where payment under this subchapter is made to a person other than the individual entitled to such payment, the Secretary shall establish a system of accountability monitoring whereby such person shall report not less often than annually with respect to the use of such payments. The Secretary shall establish and implement statistically valid procedures for reviewing such reports in order to identify instances in which such persons are not properly using such payments…. [T]he Secretary may require a report at any from any person receiving payments on behalf of another, if the
Secretary has reason to believe that the person receiving such payments is misusing such payments….

7. Derived from federal provisions applicable to social security benefits, 42 USC 405, which provides in relevant part as follows:

405. Evidence, procedure, and certification for payments

(j) Representative Payee

(D)(6) The Secretary shall include as part of the annual report required under section 904 of this title information with respect with respect to the implementation of the proceeding provisions of this subsection, including the number of cases in which the representative payee was changed, the number of cases discovered where there has been a misuse of funds, how any such cases were dealt with by the Secretary, the final disposition of such cases, including any criminal penalties imposed, and such other information as the Secretary determines to be appropriate.

Gender Bias Against Fathers in Domestic Relations Cases

January 11, 2012  |  No Comments  |  by admin  |  Fathers Rights

The magazine of the American Bar Association’s

Family Law Section

Spring 1993


To The Editor:

My hat is off to the American Bar Association and the Editorial Board of the Family Advocate for their decision to devote an entire issue to “The Father’s Custody Case”, even though two members of your Board offered their resignations over the decision. Sadly, the magazine lacked the journalistic integrity to acknowledge the obvious legal conclusion that leapt out from every page:

GENDER BIAS AGAINST FATHERS IS SO PERVASIVE THAT OUR JUDICIAL SYSTEM ROUTINELY VIOLATES THE CONSTITUTIONALLY PROTECTED RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF MOST FATHERS IN CUSTODY CASES.

Why did the magazine fail to promote an immediate end to the gender bias it freely acknowledged BUT FAILED to condemn?

Gender bias against fathers in domestic relations is so ingrained that most people fail to recognize it even when it is admitted. People who have not experienced the devastating consequences of appearing as a father in our nation’s divorce courts fail to recognize the discrimination from such bias. Imagine the horror and outrage which would have resulted if the following statements had been made about racial bias in our courts:

Many lawyers who responded to our survey believe there is no inherent bias in how they represent an African American criminal defendant versus a white defendant, but they concede that they handle African American cases differently. Like Norman Robbins of Birmingham, Michigan, many felt that generally both races come to court without any legal advantage or presumptions based on race. “However,” Robbins acknowledged, “most of our judges were raised in a white culture. We plan our presentation differently when representing an African American in order to overcome the sub-rosa inborn prejudice.”

A black man cannot simply show the prosecution failed to prove his guilt beyond a reasonable doubt, he must prove himself innocent.

Geoff Hamilton views judicial bias in terms of the human condition. “I suspect all of us–lawyers, judges, social workers have certain unconscious biases, i.e. blacks are more likely to commit crimes than whites. But, again, that may in fact be true as a general proposition.”

An African American and his attorney must convince the judge that the African American criminal defendant is a responsible citizen with a law abiding zeal that overcomes stereotypes of the African American criminal tendencies.

I only take African American criminal cases where there is a reasonable chance of winning as I have had a number of good cases in which the African American ‘wimped out’ and accepted a plea bargain. I test the African American client’s dedication to pleading innocent by asking for a bigger retainer and I have serious heart-to-heart talks with the client.

Thomas J. Jedinak of Columbus concedes that African American criminal defendants have a tougher time obtaining a not guilty verdict.

Geoff Hamilton of Honolulu, Hawaii put it more bluntly, “You start off with the proposition that the judge will presume your African American client is guilty as charged.

Other lawyers said that a few judges were openly suspicious of African American criminal
defendants pleading innocent. These courts look for ulterior motives, such as a desire to irritate the prosecutor.

A respondent who preferred to remain anonymous noted one important distinction between how he evaluated blacks and whites in child custody matters. When a black seeks custody of his or her children, he pays “more attention to the potential for violence, sexual perversions, and motives to reduce or obtain child support.”

George R. Holmes of Columbia, South Carolina, takes one giant step further. He says that the prosecutor must be “blatantly psychotic, for him not to find any Negro charged with a crime, guilty as charged”.

It is time for the domestic relations bar to take a long hard look at the unconstitutional treatment of fathers. The Family Law Section of the American Bar Association should take the lead and formally denounce the current gender bias as pervasive and unconstitutional. The National Congress for Men and Children requests the Family Advocate recommend the formation of GENDER BIAS COMMISSIONS to document the nature and extent of gender bias in all domestic relations matters. In addition, our Litigation Committee invites contributions to mount a major attack in federal court.

After our funding reaches $100,000 we will file a suit in federal court seeking to address such issues. The funds will only be spent on costs to bring the case, travel and out-of pocket expenses of attorneys and experts, data analysis and public relations; i.e. all legal and expert witnesses’ time will be donated or paid from other sources. The fund we have established is formally restricted by the Board of Directors and has been named: The National Association For the Advancement of Concerned Fathers (NAACF). All contributions are tax deductible. A complete accounting of the funds will be sent to all individuals making a donation of $100 or more and all other contributors who make a written request for an accounting.

As succinctly stated by the Editor, Arnold H. Rutkin, “limiting a mom’s or dad’s parenting to visits every other weekend or large blocks of the summer robs a child of a meaningful relationship with two parents and predisposes the child to a dysfunctional view of family life.” If the Family Advocate is dedicated to the best interest of children, it should actively pursue immediate and substantial reformation of the gender biased domestic relations policies and practices in the United States.

Phillip J. Holman, Esq.

Chair, Litigation Committee

National Congress For Men and Children

Treat Divorced Dads, and Their Kids, Fairly

January 10, 2012  |  No Comments  |  by admin  |  Fathers Rights

The June 23 op ed column by Michigan Department of Social Services Director Gerald Miller distorted data on child support and failed to acknowledge the devastation to children from their loss of fathers (“Child support comes in many forms”). Society scapegoats “deadbeat dads,” even though only 20 percent of noncustodial mothers pay child support. Fathers are not culprits; children want and need two parents. Instead of clamoring for draconian support enforcement, the DSS should recognize that denial of parental access and parental alienation are the most common forms of child abuse and merit severe criminal penalties. The removal of fathers from their children is the primary cause of social problems that cost taxpayers billions of dollars annually.

Children of divorce, especially boys score lower on reading and math tests than children from two parent households. They are absent more often, are more anxious, hostile and withdrawn, are less popular with their peers, and are twice as likely to drop out of high school or college. Boys in father custody households, however, fare as well as or better than boys from intact families.

Where fathers are allowed to be involved with their children, child support is paid. According to a U.S. Census Bureau report, full and timely payment of support was admitted by 90 percent of mothers with joint custody, and 79 percent where visitation was allowed. Yet according to the 1990 Census, only about 55 percent of fathers had visitation rights, and only 7 percent had joint custody.

Rather than spend taxpayer funds on Aid to Dependent Children and child care for mothers in school, or enforcing draconian legislation, government should allow and encourage fathers to share equally in caring for their children. Pending state legislation that would direct the loss of auto and occupational licenses for child support arrearages is poorly drafted and would destroy far more innocent victims than it would benefit. The amount of support collected would decrease.

How many fathers will commit suicide or unjustly face financial ruin before people recognize that we must treat fathers fairly? Courts refuse to consider the concerns of noncustodial parents: access to their children, accountability for the use of child support payments, the fairness of support awarded, and the outrageous legal cost fathers must incur to attempt to remain involved in our children’s lives.

Phillip J. Holman
Board Chair
National Congress for Men and Children
Michigan Chapter
Royal Oak

Legislation Is Disastrous For Noncustodial Fathers

January 9, 2012  |  No Comments  |  by admin  |  Legislative

  

FRIDAY, MARCH I 9, 1993

(Editor’s Note: This letter by Travis Ballard, a lawyer in Adrian, was submitted by the National Congress For Men and Children in reference to House Bills 4135-4138)

I am submitting this letter in the hopes that our citizens and our Legislature will wake up in time to prevent the loss of an untold number of lives in the State of Michigan. The legislation presently pending in the Michigan House was approved in Committee on March 10, 1993, and is expected to be promptly enacted. It involves the latest attempt to coerce child support collections by authorizing and directing the loss of driver’s licenses and occupational licenses of individuals with child support arrearages.

Although supported by many well intentioned individuals, the proposed legislation is poorly drafted and will result in destroying far more people than it benefits. In the final analysis, the amount of child support collected will undoubtedly decrease.

Child support enforcement agencies refuse to consider the legitimate concerns of non-custodial parents, which primarily concern the areas of access to their children, the necessary accountability over the use of the child support payments and the reasonableness of the amount awarded.

The emotional agony in divorce involving children is inherently intense. When child support enforcement agencies ignore due process and prefer one gender and over the other, it generates absolute frustration and despair. Most of the fathers who will suffer sanctions under these provisions will be financially unable to pay. The U.S. Census Bureau reported that 66 percent of custodial mothers stated the reason they were not receiving financial child support was financial inability to pay.
However, few fathers will receive any sympathy or concern from a system that views them solely as objects to be manipulated, instead of loving parents caught up in the emotional and financial crisis of a divorce.

Most of our judges were raised mainly by their mothers (fathers working). As a result, fathers are unable to overcome the subrosa inborn prejudice and are treated with more contempt than shown to violent criminals. Consequently, their financial inability to pay will be ignored. Most will already have lost their homes, the ability to parent their children and already have an extremely high incidence of suicide. Taking the additional steps of removing their ability to drive and their ability to earn a living is certain to push many over the edge. Many will decide they have nothing left to live for.

Although I condemn violence and certainly recognize that violence in domestic relations matters only diminish fathers’ rights and the public sympathy for our plight, this legislation is certain to result in substantial loss of life. How many fathers will commit suicide and how many will improperly and unjustly face financial ruin before enough people recognize that our system must treat fathers with the concern and respect they deserve?

The proponents of the bills are primarily concerned that the Friend of the Court lacks an effective tool to collect child support from independent contractors who cannot be subjected to withholding by their employer. However, even this group is likely to have many unintended victims.

Unfortunately, the bills go too far and are certain to be applied inappropriately to destroy many loving fathers whose only crime is being male in a society that somehow fails to understand that divorced fathers love their children and strive to provide for their financial and emotional needs.

Some of the worst aspects of the legislation which desperately need amending, are the following:

l. There is little, if any, public policy reason to raise alimony to this level of punitive enforcement.

2. Ability to pay as defined in House Bill 4138 Section 26 (A)(4) is far too vague. At a minimum, the act must allow courts to consider the hardship to the payer and his family. The act implies the payer can magically obtain funds from a source other than currently available resources.

3. The bills allow suspension of licenses even though an income withholding order is in effect if it “has not been successful in compelling compliance with a support order.” By definition, if the withholding order cannot compel compliance-the payer has inadequate income to pay the amount of the order.

4. The notice provisions should require personal service. Imposing the obligation on the payer to keep the Friend of the Court informed of his or her address will result in many individuals failing to receive actual notice. Many fathers will have notified the Friend of the Court and the file will never be corrected, the required notice will be improperly addressed, lost in the mail or inadvertently misplaced at the payers residence (e.g. by a roommate or relative).

5. Allowing only 14 days after notice is mailed to request a hearing is far too short. After deducting the days lost in mailing, an individual out of town to look for a job, a death in the family or on vacation will never have an opportunity to request a hearing.

6. The bills allow the payer to seek a modification of his support order. However, an individual in such situations is likely to be unwilling to risk incurring the wrath of the referee who holds, what amounts to power of life and death over his head. Consequently, the referee should have the affirmative duty to determine that a downward modification is not then appropriate.

7. The law will require the Court to order a suspension if a payer fails to comply with an arrearage payment schedule. This provision will destroy many individuals who are unable to make the arrearage payments scheduled. Moreover, no clear guidelines are provided to the court in making its determination of the schedule for payment of the arrearage.

8. The court is directed to presume that the payer has Currently available resources equal to four weeks of the amount due under the order, in the absence of proof to the contrary. Few payers will be able to provide the “proof” required to satisfy a skeptical judge. When applied to license revocation, the inevitable injustice is inexcusable.

9. The Friend of the Court or a party should be required to seek, and the courts should be absolutely required to impose, the same sanctions for:

a) Repeated failure to comply with a visitation order; and

b) Repeated false allegations of physical or sexual child abuse.

10. Since the proposed legislation is only justifiable if it benefits children of divorce, lets make sure all of the money is spent on the children by requiring the funds to be deposited in a separate bank account and an annual statement of how such funds are spent filed with the Friend of the Court and mailed to the payer. If Social Security benefits paid for the benefit of a dependant child when a parent dies justifies such accountability, surely the far greater amounts generally paid in the form of child support, merit equal or greater concern.

Sincerely,

Travis Ballard

President
 National Congress for
 Men and Children

(Note for Web page: Written by Phillip Holman on behalf of Travis Ballard).


Bills Targeting ‘Deadbeat Dads’ Anger Fathers

January 8, 2012  |  No Comments  |  by admin  |  Fathers Rights


Thursday, MARCH 18, 1993
Detroit News Home Page

Kenneth Cole

DETROIT NEWS LANSING BUREAU

LANSING–James Thienel is fuming over a set of bills steam rolling through the Michigan House that would suspend the driver’s and occupational licenses of so-called “deadbeat dads” who fall behind on child support.

Thienel, the owner of a Maytag appliance store in Royal Oak, believes the bills will unfairly punish men like him who don’t have custody of their children. “This legislation will only make the problem worse,” Thienel said. “There are a lot of fathers now being pushed to the brink, and these bills may push them over.”

Thienel, 45, who pays his ex-wife $87-a-week in child support for their 11-year-old son, Jared, also blasted the term “deadbeat dad,” which lawmakers often use to describe noncustodial fathers.

“That term evokes the same feeling for men that a racial slur evokes for a black person,”he said.

“Sure there are some deadbeat dads. But the Legislature is using the term to brush all men.”

Philip Holman of the National Congress for Men and Children agreed and called the bills ”draconian legislation that treats loving fathers like criminals.”

“It’s based on the premise that there are all these men who are able, but unwilling, to pay,” Holman said. “That’s invalid.”

Specifically, the bills, which are before the full House, would let the state suspend the driver’s licenses of parents who are more than a month, or $1,000, behind on child support, whichever is less.

Occupational licenses also would be suspended under the legislation, and the state could also deny guilty parents the right to register cars with the Secretary of State’s Office.

Although the bills, which could pass the House and move to the Senate next week, designate neither sex as a target for punishment, more than 85 percent of the state’s 200,000 noncustodial parents are men, according to the state Department of Social Services.

“All these bills do is further punish men, who already are the victims of a gender-bias domestic relations industry,” Holman said.

Sharon Gire, DÄClinton Township, chief sponsor of the bills, defended the measures. “We have people who are self employed, who are making money, who can afford to pay child support, who have court orders to do 80, but are not responding” Gire said. “These bills just give the courts one more enforcement tool.

“And besides, if a person’s been given the privilege of making a living by virtue of a license, they ought to follow the law and show some responsibility toward their kids.”

Chuck Peller, a DSS spokesman, said the bills could help a lot of poor families on welfare escape poverty. “If people are paying child support, it means fewer children will get caught up in the (welfare) system and that means less kids will be living in poverty,” Peller said.

DSS records show that among households receiving aid to families with dependent children (ADC), only 12 percent of child support eve~ gets collected and $1.7 billion is outstanding.

About $648 million in child support is delinquent for families not on welfare in the state.


Parents Question Panel on Pressuring Deadbeats

January 7, 2012  |  No Comments  |  by admin  |  Fathers Rights

 

BY JACK KRESNAK

FRIDAY August 7, 1992

Staff Writer

Bill Clinton, the Democratic presidential nominee, wants something done about it. So does John Engler, the Republican governor of Michigan.

And more than 1.6 million children in Michigan need to have something done about it. They are the offspring of parents who have a combined debt in excess of $3 billion in court ordered child support. Nationally, the problem involves $18 billion and affects 16 million children, many of them living on welfare or in poverty while court ordered support goes
unpaid.

But parents on both sides of the issue–those sought for payments and those seeking support — are rejecting a long-awaited report issued this week by a commission that was supposed to take the lead in tackling the problem on a national scale.
The Commission on Interstate Child Support proposed that Congress enact sweeping new federal laws to catch up with parents who live in one state and are behind on child support in another.

The proposals include improved computer tracking of deadbeats and requiring employers to honor wage garnishees from other states for support payments.

For different reasons, the recommendations disappointed both the National Congress for Men and Children, a fathers rights group, and ACES — Association for Enforcement of Support.

The Commission “makes the false assumption that fathers are willingly failing to pay their child support,” Phillip Holman, chairman of the Michigan chapter of the fathers’ group, said Thursday.

Don Chavez, a New Mexico social worker who represented fathers on the Commission, said its members bought to a misconception that the biggest problem is “deadbeat dads” who flee cross state lines to avoid child support. He said research shows that Fathers who have consistent access to their children are far more likely to provide financial support.

“There are truly some deadbeat parents out there who, no matter what don’t pay any of their bills,” Chavez said. “They’re a small fringe of the population. And what’s being proposed is that we spend the greatest number of dollars on the smallest population of people.”

“That money would be much better spent if we went after the larger number of people, and we removed obstacles to fathers having relationships with their children.

Single mothers are the majority with problems getting support. Frequently young fathers are unemployed and unable to pay. Chavez favors enforcement programs that compel mothers to allow fathers to see their kids, and programs that provide job training and promote emotional involvement by the fathers.

Holman and Chavez said the emotional needs of children for their fathers are being ignored in favor of trying to squeeze more money from dads who do not have custody of their children.

Somewhat surprisingly, Geraldine Jensen, president of the Toledo-based ACES, agreed.

“The Commission completely shut out dealing with access and visitation issues,” she said.

Jensen said her group has proposed a child support insurance program similar to Social Security that would guarantee an income for the children of single parents. Critics say it would be a $5-billion undertaking. ACES would also like to see the federal government take over all child support enforcement because the 2-year-old state-based system hasn’t worked.

Gov. Engler vowed in his State of the State message this year to toughen Michigan’s child support enforcement System. Clinton, in his acceptance speech at the Democratic National Convention, targeted absentee fathers in his call to improve the conditions of children–to the chagrin of fathers’ groups who say deadbeat parents come from both genders.

But William Camden, Kent County Friend of the Court and president of the Michigan Friend of the Court Association, said ”the Commission did an outstanding job” and that if its recommendations are followed states will be more easily able to enforce their child support orders.

That’s not much comfort for Barbara Douyard, whose 16-year-old son Nicholas Roman, has been without financial or emotional support from his father since 1978.

“I’ve tried everything,” said he 34- year-old Detroit legal secretary whose ex-husband works in Tennessee for an employer who refuses to comply with wage-withholding orders from Michigan.

“Nick was having problems at school, but he turned it around and
became an honor roll student,” she said. “He wants to go to college, but
the money’s not there to send him. That $28,000 in child support
arrearage would sure help, but the Tennessee authorities are allowing his
dad to pay only $5 a week on that.”

“That’s ridiculous. He’s not going to be paying child support until Nick’s
33. He’s not going to do it after Nick turns 18. He’s just not.”

Turning Loving Fathers Into Visitors

December 22, 2011  |  No Comments  |  by admin  |  Legislative

State wants to go after ‘deadbeat dads’who fail to make child support payments

By Kenneth Cole

DETROIT NEWS LANSING BUREAU

LANSING — Despite a good record of collecting child support, Michigan wants to crack down further on “deadbeat dads” by having courts report them to credit bureaus the state’s social services director said Wednesday.

Gerald Miller said the move would generate additional federal dollars for the cash-starved state and strength- en families, particularly those dependent on welfare.

The measure is part of Gov. John Engler’s plan to reform Michigan’s welfare system and is one in a series of bills aimed at penalizing dads who fail to pay child support.

Other bills would prevent fathers from renewing their driver’s licenses, professional licenses and automobile registrations. The package could go into effect as early as Oct. 1, when the 1993 fiscal year begins.

“The bottom line is we want to make Michigan as strong as possible in child support collection,” Miller told a House committee on social services. “We’re doing a reasonably good job in this area right now, but that’s not good enough.”

Michigan ranks second among the 50 states in child support collection, behind Pennsylvania.

Still, among households receiving aid to families with dependent children (ADC), 12 percent of child support is collected, and $2.4 billion in court-ordered child support goes uncollected annually in the state, according to Department of Social Services records.

“Just think of the implications (for the families) if we can get just 10 percent of that money,” Miller said.

The House Judiciary Committee may take up the bills Thursday.

One measure would require Friend of the Court officers to report to credit bureaus fathers who are more than $1,000 behind in child support.

“They don’t want that on their credit record,” Miller said. “It gives us another tool in our arsenal.”

Added Karen Smith, DSS communications chief: “For every dollar we can bring to a family–whether they’re on public assistance or just low income–the less it has to rely on the state.

“Plus, if we fail in our ability to get child support dollars, children are deprived of something to which they are entitled.”

Phil Holman, interim president of the Michigan chapter of the National Congress for Men and Children called the bills “outrageous.”

“When parents are allowed access to their children, the problem of noncompliance disappears,” Holman said, charging that much of the information the state is using to launch its attack on dads comes from bitter mothers.

“Domestic relations in this country turns loving fathers into visitors,” he said.


Thursday, June 26, 1992

Divorced Dads Should Get More Than Bills

December 22, 2011  |  No Comments  |  by admin  |  Fathers Rights

To the editor:

Even though I was quoted in your April 5 article “Where’s Daddy?”, I was disappointed that it served to reinforce society’s view that the primary duty of divorced fathers is financial. It is important to consider how such matters emotionally impact fathers.

I blame the emotional nightmare I have lived during the past three years on the judicial and societal view that allows fathers to only play a financial role in their children’s lives after a divorce.

Such bias encourages the disappearance of fathers from any involvement in their children’s lives, since the role of Disneyland daddy is too emotionally devastating for most loving fathers to sustain.

I pray that someday we will remove the issues of custody and visitation from the legal arena. Until then, we should at least discourage the view that a father’s primary role is to pay child support, and give equal or greater attention to each child’s need for emotional support from both parents, notwithstanding a divorce.

Phillip Holman
National Congress for
Men and Children
Washington, D.C

Father Pays Best

December 18, 2011  |  No Comments  |  by admin  |  Fathers Rights

Schools Add Trauma for Children of Divorce

 

By Phillip J. Holman, Esq.

President, National Congress For Fathers and Children

To the editor:

Diversity concerns do not end with race, national origin, etc. The prejudice today towards noncustodial parents is reminiscent of the racial bigotry in Alabama in the ’30s, i.e. where awareness of the discrimination existed, it was considered a “God given right.”

One half of our students live within the emotionally devastating tug-of-war of their parents’ divorce. Recent publications suppress surprise that the attendant emotional scars are significantly more acute and long term than anyone expected. Although children aren’t supposed to like “being bounced around,” they were expected to bounce back quickly from divorce. Unfortunately, to fit in with their peers, children of divorce deny their feelings until they are expressed through substance abuse, pregnancy, etc.

The policy of our schools appears twofold: ignore the problem and maybe it will go away; and do not show any concern for the nonresidential parent. Families are forced, like the proverbial square pegs, into traditional family molds. Our schools actively discourage the involvement of both parents. For example, emergency cards, address lists and virtually all other forms only provide one space to list home address and telephone numbers. Such information (and in fact virtually all information, school work, etc.) Is sent home with the child on days least likely to be received by the nonresidential parent who traditionally is relegated to “visiting” on alternate weekends and Wednesdays.

After being told that the failure to turn in homework was the result of spending weekends with the nonresidential parent, most teachers have decided not to assign homework on weekends. Such a decision, albeit a short term solution which successfully ends the finger pointing, also serves to further undermine the parent-child relationship and attenuate the
nonresidential parent’s involvement and commitment to the child’s academic progress.

One current program is a series of support groups which reassures children that the divorce was not their fault. Unfortunately, the material provides substantial misinformation and stereotypical biases. The material presents the worst stereotypes about divorce. No mention is made of the gender based bias of our court system or that custody is to be based primarily on the best interest of the child. Our children aren’t informed of joint custody, that “custody” defines them as property to be awarded to the “better” parent or that “visitation” is as derogatory as any racial epithet.

The school does not want to “get caught in the middle” of the war. However, we are charged with creating significant contributors to our global society. How can we do this and continue to exacerbate the most traumatic experience of half of our students?

Phillip J. Holman

 


Thursday, March 21, 1991

Readers Forum

Presumptive Joint Custody Legislation

October 26, 2011  |  Comments Off  |  by admin  |  Legislative

Presumptive Joint Custody Legislation
HB 4778 of 2011

Writing as Vice President and member of the Legislative Committee of DADS & MOMS PAC, Phillip Holman prepared and submitted the draft of a proposed Bill which is set forth below. The Bill was introduced with 19 sponsors and referred to the House Judiciary Committee. House Bill 4778 is virtually identical to Mr. Holman’s proposal and can be viewed at:

Several provisions are designed to safeguard against the judicial tendency to limit application of joint custody statutes. The Bill contains a presumption of joint custody, which is defined as substantially equal periods of time with each parent. It requires that joint custody be awarded unless one parent is found by clear and convincing evidence to be unfit, unable or unwilling to care for the child.

One provision of the Bill is truly unique and has not been introduce by any other state legislature. It provides that a parent may not be deemed unfit unless the parent’s actions are so egregious that his or her parental rights could be terminated. This is certain to be controversial because it is an extremely rigorous standard and few if any individuals seeking joint custody would be deemed so unfit that their parental rights could be terminated. Such cases are generally limited to child abuse, neglect and abandonment.

Mr. Holman argues that this is the appropriate standard and asserts that sadly we fail to recognize that awarding sole custody of a child to one parent essentially terminates the other parent’s parental rights. The traditional parenting time of alternate weekends and one evening every other week, amounts to only four overnights per month. Such an individual is not being treated as a parent and much of his parental rights have indeed been terminated. It is ironic that a loving involved father facing divorce is far more likely to have his parental rights terminated (by an award of sole custody to the child’s mother) than a father who is convicted of child abuse.

There appears to be substantial support for this legislation which would have an enormous impact on custody disputes in Michigan.  This Bill would minimize the adverse impact of divorce and birth outside of marriage for Michigan’s children.   The Family Law Section of the State Bar and the Friend of the Court will undoubtedly oppose it, as they have opposed all “father friendly” legislation in the past.  However, this year we may have enough support to get it passed and enacted into law.

The following was submitted by Phillip Holman as a proposed Bill which is a mark up showing the changes from the current statute and from a prior joint custody Bill submitted by DADS and MOMS PAC.
HOUSE BILL No. ____
______, 2011, Introduced by Reps. __________________________________________________and referred to the Committee on ________.

A bill to amend 1970 PA 91, entitled “Child custody act of 1970,”by amending section 6a (MCL 722.26a), as added by 1980 PA 434.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 6a.(1) IN A CUSTODY OR PARENTING TIME DISPUTE BETWEEN PARENTS, THE COURT SHALL ORDER JOINT CUSTODY UNLESS THE COURT DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT A PARENT IS UNFIT, UNWILLING, OR UNABLE TO CARE FOR THE CHILD. A PARENT MAY ONLY BE DEEMED UNFIT UNDER THIS SECTION IF SUCH PARENT’S PARENTAL RIGHTS ARE SUBJECT TO TERMINATION UNDER MCL 712A.19b (3).
(2) (1) In A custody DISPUTE disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and THE COURT shall state on the record the reasons for FAILING TO AWARD JOINT CUSTODY. granting or denying a request. In other cases, joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in section 3.
(b) Whether the parents will be able to cooperate MAINTAIN THE CHILD’S SCHOOL SCHEDULE and generally agree concerning important decisions affecting the welfare of the child.
(3) (2) If the parents agree on joint IN WRITING TO A custody ARRANGEMENT, the court shall award joint GRANT THAT custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child ARRANGEMENT UNLESS ONE PARENT IS FOUND BY CLEAR AND CONVINCING EVIDENCE TO BE UNFIT.
(4) (3) If the court awards joint custody, the court may SHALL include in its award a statement regarding when the child shall reside RESIDES with each parent, or may AND SHALL provide that physical custody be IS shared by the parents in a manner to assure the child continuing contact with both parents FOR SPECIFIC AND SUBSTANTIALLY EQUAL PERIODS OF TIME.
(5) (4) During the time a child resides with a parent, that
parent shall decide all routine matters concerning the child.
(6) (5) If there is a dispute regarding residency, the court
shall state the basis for a residency award on the record or in writing.
(7) (6) Joint custody shall DOES not eliminate the responsibility for child support. Each parent shall be IS responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
(8) (7) As used in this section, “joint custody” means an
order of the court in which 1 or both of the following is ARE
specified:
(a) That the child shall reside RESIDES alternately for
specific AND SUBSTANTIALLY EQUAL periods OF TIME with each of the parents PARENT.
(b) That the parents shall share decision-making authority as to ALL OF the important decisions affecting the welfare of the child.