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.

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).


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

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.

U. S. COMMISSION ON INTERSTATE CHILD SUPPORT

October 19, 2011  |  Comments Off  |  by admin  |  Legislative

MINORITY (DISSENTING) REPORT OF THE

U. S. COMMISSION ON INTERSTATE CHILD SUPPORT

By: Don A. Chavez, MSW, L.I.S.W.

Phillip J. Holman, Esq., (Editor and principal author)

Date Submitted: June 10, 1992

LET THE FATHERS RETURN

MINORITY (DISSENTING) REPORT OF THE
U. S. COMMISSION ON INTERSTATE CHILD SUPPORT
By: Don A. Chavez, MSW, L.I.S.W.

INTRODUCTION This Commission has been asked by the Congress of the United States of America to provide its citizens with recommendations to address one of the most perplexing realities of our modern society, the difficulties faced by children of divorce whose parents reside in different states. The Commission was given a unique opportunity to evaluate and provide new insight into the devastation and trauma faced by a generation of this nation’s children.(1) Extensive analysis and testimony was generated by and presented to the Commission through many professionals and advocates, as the Commission met over the last twenty months at locations across the Country. The ultimate question Congress must now answer is whether the recommendations contained in the majority report of the Commission will serve to the benefit or detriment of the innocent children whose lives have forever been torn apart by their parents’ divorce.

The strength of the emotional bonds within the family is the single most critical determinant for launching positive and well adjusted children into adulthood, regardless of whether the family is intact or separated. Government and societal forces to exclude or drive fathers out of the lives of their children is manifesting itself in catastrophic proportions in every facet of American life, including loss of emotional and financial child support.

There are three false assumptions upon which a decade of bureaucratic expansionism in child support enforcement has been based. The first and foremost is that nonpayment of court ordered child support is a substantial or primary cause of poverty among children. The second is that financial child support is willingly being underpaid by irresponsible noncustodial parents, and the third is that the primary and exclusive role of noncustodial parents is to provide financial resources to the custodial parent.

For over a decade now, divorced and other single fathers have served as political scapegoats for a range of social ills, most notably poverty. From the roots of the politics of division and gender bias and encouraged by special interest groups, the most expensive child support enforcement experiment in the history of America has arisen. However, this Commission continues to advise expansion of criminal sanctions and massive additional funding. This Report recommends that Congress refocus scarce funds as well as its attention, on more sincere proposals to address the applicable social problems.

Careful study of child poverty in single parent households with valid child support orders, shows poverty in these households to be in relative proportion to the poverty rate of the entire United States population. Nonpayment of court ordered child support is not the primary cause of child poverty in America. Instead, poverty prevents financial child support compliance. The largest single cause for inadequate parental support by fathers is that no support order is ever entered. The Bureau of the Census report issued by the U. S. Department of Commerce on Child Support and Alimony: 1989 issued September, 1991 reported that only 57.7 percent of women with children included in the Census were awarded financial child support. The data presented is misleading for enforcement purposes, since it included children whose fathers were deceased and adult children under age 21 for whom the support order no longer applied. However, it also noted that only 23.9% of never married women were awarded child support. Enforcement measures, no matter how effective, cannot impact such cases. (See Exhibit A)

One of the driving forces behind strengthening of child support enforcement are misunderstood studies such as those by Garfinkel and Ollerich (1983).(2) They postulated that divorce reform could reduce the “poverty gap” — the difference between the incomes of poor families headed by single mothers and the amount of money they would need to move above the poverty level — by 27 percent. In arriving at this estimate, it was assumed that all eligible custodial parents would have a valid child support order, and all noncustodial parents would be fully employed. If these two conditions were achieved, a significant reduction in AFDC expense would result. But neither goal demands expansion of enforcement efforts in cases where valid support orders exist.

Most noncustodial parents of AFDC children do not earn enough to pay as much child support as their children are already receiving in AFDC benefits. Enforcement measures will not cure unemployment. The waste from experimental programs has already run into billions of dollars. The federal deficit for child support enforcement for the last two years has been over a half billion dollars per year.

Child support reforms of the 1980′s have actually contributed to a deterioration of the statistical record on child support payment. Worse yet, the policies serve to drive fathers away from their children, an effect of government policy that continues to be a major concern. The Family Support Act provisions on child support awards, as implemented by the U. S. Office of Child Support Enforcement, stripped noncustodial parents of funds necessary to support children during periods of parental access (visitation).(3)

At the same time, they have put payment of all that is awarded further out of the reach of many parents.

The Majority Report of the Commission can be summarized as recommendations to force the noncustodial parent to defend a financial child support proceeding in a forum most convenient to the custodial parent or the child support agency, for measures to anticipate and prevent noncompliance, additional (draconian) laws to increase sanctions for failure to comply with child support orders, and an increased bureaucracy to administer the recommended programs. As members of agencies devoted to financial child support enforcement, they could only be expected to view the solution myopically as a need for an increased bureaucracy devoted to the agendas on which their own agencies are based. This report does not intend to suggest that the members of the Commission failed to attempt to responsibly carry out the mission they were given by Congress. The Commission simply lacked adequate diversity for any other view to prevail.

The ultimate question to be asked in evaluating the recommendations made by this Commission is deceptively easy to state, but extremely difficult to answer. The recommendations should not be evaluated merely as to their impact on the federal budget deficit, their impact on any governmental agency, nor indeed, their impact on any public interest group. Instead, ask how each provision will effect the needs and concerns of each child in this country who is caught in the middle of his or her parents’ divorce. This presentation will address the need of children of divorce with extensive reliance on the data revealed September, 1991, on Child Support and Alimony by the Bureau of Census, the 1988 Survey of Absent Parents conducted by the U. S. Department of Health and Human Services and Professor Sanford Braver’s research criticizing the bias in the Census findings.

The challenge now facing Congress is to legislate protection which will best enclose and protect children of divorce in their world which is now split between two households. Few members of Congress personally experienced the anguish of their parents’ divorce and never wet a pillow at night fearful of never seeing one of their parents again. Do the recommendations reflect new insight into the causes for inadequate compliance with child support obligations and provide new hope for Johnnie and Susie’s future? This Report asks Congress: “Is there not a way to encourage responsible parenting other than by fashioning new and bigger sticks? Where is the concern for the child’s relationship with the noncustodial parent other than as a hook for obtaining transfer payments between the parents?”

To a nation that views children as its most precious resource, the specter of a parent callously and selfishly abandoning all parental responsibilities, including financial child support obligations, understandably evokes moral condemnation. Everyone agrees that children should be supported. The question is whether the Courts are structuring fair financial child support arrangements. Unless custody, parental access (visitation) and support amounts are fairly established, there is no moral authority for enforcement. Surprisingly, a parent who fails to provide the much more important child support, EMOTIONAL CHILD SUPPORT, or who blocks such child support by limiting parental access, evokes no such moral outrage.

The American dream of “a clapboard house surrounded by a picket fence…children playing in the yard and parents alternately observing lovingly from the porch or joining in the fray…” has turned into a nightmare. The nuclear family has been replaced by single parent households, with one parent relegated to the role of an occasional visitor by judicial fiat, and by teenage mothers whose children never know their father. On a broader scale, our inner cities are demographically recognizable by many single statistics, including crime, substance abuse, teenage pregnancy rates and poverty. Ironically, the nation seems determined to ignore (or attempt to explain away) the statistical correlation between such enormous social problems and single parent households, even though the correlation coefficient is extremely high across all social and demographic groups. As graphically illustrated in the attached Exhibit C from the U. S. Department of Health and Human Services, National Center for Health Statistics, the increased psychological problems of children of divorce are readily demonstrated and the involvement of a stepparent does little if anything to resolve such problems.(4)

Congress is asked to carefully reevaluate the recommendations of the Majority Report in light of the revelations of the Bureau of The Census report on Child Support and Alimony. For the very first time in history, the U. S. Census Bureau looked into the possible causes for noncompliance. The report found a dramatic increase in the number of households without men – up 39% between 1979 and 1989. There are now 10 million households with 16 million children living without fathers. The real villain is not divorce. In 1990, nearly 3 million (2,950,000) of the women were never married to the father of the child. That figure represents approximately 30% of the families with an “absent” father. The largest single factor accounting for the increase in AFDC rolls has been the increase in the number of families in which the parents were never married. Only 24% of the never-married women said they received their entire child support while 72% of married, separated and divorced women acknowledged receiving their entire child support. How can any effective program to encourage (or even coerce) compliance, fail to differentiate between such extremely different situations? A father who first learns he is a parent when served with a paternity proceeding initiated as a result of AFDC payments needs dramatically different governmental assistance than a loving father who struggles against the societal and judicial bias until successfully obtaining an equal parental role after a divorce from a long term marriage. The Census Bureau combined compliance data reported by AFDC mothers with other compliance reports even though they have no direct knowledge of the amount collected and retained by the government. The Survey of Absent Parents (identified below) demonstrates that a much larger variance in reporting by custodial and noncustodial parents applies when AFDC is involved.

Even more revealing to the issues of concern to this Commission was the relationship between compliance and where the children lived. Only 63.7% of children live in the same state as their noncustodial fathers. 25.6% live in a different state and 10.7% live overseas or their whereabouts are unknown. When the children live in the same state, fathers were praised by their ex-wives as paying their child support on time and in full 81.1% of the time. When the children live in another state, payment by fathers is acknowledged to be in compliance for 65.6% of cases. When the children live overseas or their whereabouts are unknown, mothers reported full compliance of only 46.6%. (See Exhibit D)

The relationship between custody and child support compliance is very enlightening. Of fathers with joint custody, 90.2% were acknowledged by their ex-wife to pay their child support on time and in full. Of fathers with visitation rights, 79.1% were acknowledged to pay their child support on time and in full.(5) Yet only 55% of fathers have visitation and only 7% have joint custody. Can Congress fail to recognize that parents support children out of their love for them and that the best weapon to combat inadequate financial child support compliance by employed parents is to allow both parents a parental role in their children’s lives? Sadly for Johnnie and Susie, 37.9% of fathers had neither custody nor visitation rights in 1990. But fathers with neither custody nor visitation rights paid their child support on time and in full in 44.5% of all cases. Instead of “absent parents or deadbeat dads”, shouldn’t the media, this Commission AND CONGRESS, through its legislation, be praising and supporting those “aborted” fathers as martyrs and commending these 45% as responsible heroes?

The Survey of Absent Parents (“SOAP”) conducted by the U. S. Department of Health and Human Services (“HHS”) set out to:

a) Determine the factors which influence the establishment and collection of financial child support; and

b) Provide reliable descriptions of the obligor and obligee population.

Florida and Ohio were chosen for the initial pilot survey, which was reported in 1988 and never released until the National Council for Children’s Rights filed a Freedom of Information Act request. Why SOAP was never released by HHS or the recommended follow-up studies conducted is unclear, unless HHS did not like the implications revealed by accurate data. The Report presents exhaustive detail, consisting of more than 54 pages of text plus extensive attachments listing references and an appendix presenting the underlying data. The Report, prepared by Freya L. Sonenstein and Charles Calhoun, with the assistance of numerous individuals and institutions, including the Urban Institute in Washington, DC, and NORC, Social Science Research Center at the University of Chicago, provides dramatic and important insight into the issues being considered by this Congress. The Report concluded in part:

1. Amounts Reported: ”Noncustodial fathers report paying a larger amount of child support than is being claimed by custodial mothers. If the fathers’ reports are correct, it is possible that the child support payments are being systematically underestimated in the major data bases, because they rely solely on the reports of custodial mothers.” [SOAP pg ix] Fathers reported paying 10% to 40% more child support than the mothers said they paid. [SOAP pg. iv]

2. Parental Access: Joint custody was associated with higher payment levels. “. . . payment was higher and compliance was higher.” [SOAP pg. viii]. “Weekly contact between noncustodial parents and their children were positively associated with payment levels and compliance levels.” “These findings indicate that efforts to keep noncustodial parents involved with their children and to decrease hostility between parents may increase payment and compliance levels.” (emphasis added) [SOAP pg. viii]

3. Poverty levels among poorer families ranged from 40% for custodial parents to 15% for noncustodial parents. Child support enforcement records sampled reflected higher poverty. In Ohio 69% of custodial parents were listed as poor, compared to 49% of noncustodial parents. However, with as much as one-half of the payor population in poverty, financial problems clearly impact compliance. [SOAP pg. 21]

4. Methods of dealing with divorce and post-divorce family which encourage cooperation result, in higher compliance and happier, better adjusted children. [SOAP pg. viii]

5. “… analysis revealed that compliance was positively associated with the annual income of the noncustodial parent and the custodial parent (excluding child support transfers), remarriage by the noncustodial parent, joint custody arrangements, weekly contact between the noncustodial parent and child, and residence within one mile of the child.” [SOAP pg. vi]

6. “The absence of this information is a major stumbling block for the development of a coherent and informed national child support policy.” (emphasis added) [SOAP pg. ix]

Although parents cannot be forced to love their children, their love can be poisoned by a judicial system that views their relationship with their own children with apathy, at best, and hostility, at worst. Our society generally denies noncustodial parents a parental role after a divorce and fails to enforce the nominal access traditionally granted. Our financial child support enforcement agencies view them merely as anonymous cash donors with no empathy for the hole left in their hearts when their children are amputated from their lives. The pain of loss is not gender specific, as is evidenced by the national support group, Mothers Without Custody.

Another excellent report, Noncustodial Parent’s Report of Child Support Payments, published in Family Relations, 1991, 40 180-185 by Professor of Psychology at Arizona State University, Sanford L. Braver. His study, which was funded by a grant from the National Institute of Child Health and Human Development, presents evidence which is so compelling that Congress should insist that no further child support enforcement programs be funded until after adequate reliable data is available. Professor’s Braver’s study evaluates financial child support compliance based on inquiries to custodial and noncustodial parents and a review of court records. Dr. Braver’s findings stand in uncontested contrast to the current view of the noncompliance problem. His report states in salient part:

“According to the compliance ratio figures, divorced mothers report receiving between two thirds and three quarters of what they are owed. These figures are considerably less alarming than any previous portrayal of the extent of the nonpayment problem.

Second, the picture changes markedly when the (matched and full sampled) fathers are queried….According to them, only 4% pay nothing at all, and they report paying better than 90% of what is owed. According to what they tell us, child support nonpayment is barely a problem at all.

Despite the large mean differences, there was some correspondence between mother’s and father’s report of their standing relative to other families. A correlation of .85 was found between how much the mother and father say was paid in the last twelve months, and a .60 correlation was found between their respective reports of the percentage of what was owed that was paid. Thus, the father’s report of the percent of what was owed that was paid can be predicted very well from the mothers, but a very substantial constant, about 27% must be added….

Predictors of Nonpayment. Table three (attached to this Report as Exhibit (B)) presents some correlates of payment, in terms of percentage paid (both by custodial parent’s and noncustodial parent’s report). Custodial parent’s race (whites receive more) and custodial parents and noncustodial parent’s education are significant correlates. Of more impact are the indexes of ability to pay. These include noncustodial parent’s income, how much child support was owed, how much child support per child was owed, and the percent of noncustodial parent’s income that was owed. The biggest single factor appears to be employment (assessed by the question: “Since we last interviewed you one year ago, has there been any time that you did not work, excluding vacations and sick time?”): a correlation of .48 was found (for custodial parent’s report: .20 for noncustodial parent’s report) between the noncustodial parent’s unemployment and percent paid. Thus, whether or not the noncustodial parent has been unemployed at all in the previous year is the strongest predictor of payment as yet identified. When attention is restricted to only families where the absent parent was not unemployed at all in the previous 12 months,

the payment ratios climb to 80% and 100% for custodial and noncustodial parents’ reports, respectively.(6)

Discussion and Policy Implications. Previous research on child support is primarily based on one of two data sources, court data or self-report of custodial mothers. Each of these appear likely to contain mechanisms that would cause them to be biased in the same direction, namely to underestimate the true payments. Accordingly, the present study was designed to explore child support payments in a representative sample in which all three relevant sources, noncustodial parent’s reports as well as the two mentioned above, could be matched. It was found that court records could underestimate payment in at least two ways. First, judges could fail to require that Decrees contain the provision ordering support to be paid through the court. This appears to occur in about 20% of the cases. Second, notwithstanding the existence of the provision in the Decree, (since the provision is not enforced) payors might choose to pay payees directly, bypassing the court (respondents report that about 57% of the payments are made directly). Thus, court records appear to be low by at least half. Moreover, custodial parents’ report of payments as a percent of what’s owed is about 27% lower than their matched noncustodial parents’ report…. .(7)

It is clear from the present findings, and with hindsight is fairly obvious, that asking the two divorced parents the same question should garner different responses. (Indeed the parental differences reported here have recurred in virtually every topic explored in the interview. For example, other financial issues, the extent of visitation, how involved the noncustodial parent was with the child prior to the divorce, even who performed routine infant care when the child was a baby, are all subject to massive reported differences in the predictable direction: each parent conveying that their own behavior was positive, while their ex’s was negative) (citations omitted). It is a mistake to regard either of these reports, by itself as definitive. Instead, it should be recognized that each is likely to be biased, and substantially so, in a self-serving (and “ex-spouse bashing”) direction.

Imagine the impact had the earlier studies queried only fathers. According to the present data, policymakers would have “learned” that only a rare minority of 4% fail to pay any child support, that over 90% of what is owed is in fact paid, and that this figure rises to 100% when fathers who experience unemployment are excluded from consideration. These figures hardly paint the portrait of a severe national problem; it is difficult to imagine that costly programs would have been voted to correct this small a “problem”….

Clearly no judge would decide a case after listening to only one of the two sides to a disagreement, but this is just what the Census Bureau researchers and policymakers did, when they believed reports from custodial parents without qualification…”. (Emphasis added).

In light of Professor Braver’s research, a study of joint custody based on inquires to custodial fathers and adjustments for the excessive obligations imposed during unemployment would be enlightening. Surely the 90.2% compliance acknowledged by ex-wives reported by the Census Report would then reflect a record close to 100% compliance. Clearly, if the direct expenses incurred by such parents is considered, their payments far exceed the amounts ordered by the court, a benefit for the children which is seldom considered.(8)

The statistical study by Professor Braver is perhaps best documented by the financial child support data in Oakland County, Michigan where the Michigan Friend of the Court annually reports collections exceeding almost all states and which receives numerous awards for its exemplary record of financial child support collection. Oakland County is relatively affluent and does have several innovative programs designed to minimize conflict between divorcing parents. However, the real secret to Oakland County’s success lies in the emphasis placed on making sure that all payments are funnelled through the Friend of the Court. In this manner, it is able to report compliance rates of 90% with none of the enforcement measures sought by the Commission and no greater abuse of the civil rights of delinquent fathers than has become the norm in our society. Oakland County’s story is this: actual child support compliance far exceeds the rates presently being asserted and where noncompliance exists, it primarily reflects financially desperate situations of the noncustodial parents.

In light of Professor Braver’s insight into the Census Report, the media’s reporting on “Deadbeat Dads” was extremely irresponsible. Such reports accept that mothers accurately reported the amounts received, failed to note the biased methodology for presentation and the many inadequacies in the data. The media generally accepted as axiomatic that court ordered financial child support is fair, designed to be in the best interest of children and that no excuses for noncompliance are acceptable. No member of the media exhibited the sensitivity to recognize the total desperation and disillusionment in the judicial system by fathers who have abandoned their entire lives, including family, jobs and community. This illustrates the total insensitivity to the emotional nightmare faced by parents on a daily basis across this Country as children they love and adore are torn from their arms and given to the “better” parent with the “lesser” parent left to find solace in parenting through checking account disbursements. No public outcry resulted in the popularization of a term such as “Meal Ticket Mommy” (a parent who appropriates financial child support for his or her benefit rather than applied as partial financial child support which is appropriately augmented by the recipient spouse). Are numerous fathers in our society such evil and irresponsible parents that they actually refuse to provide financial child support for their children? Alternatively, do such individuals actually reflect an indictment of a system that turns a loving and caring father into a desperate fugitive from justice with no hope and no confidence in a judicial system that views him solely as a pocketbook. Unless greater insight is applied, another generation will be left to discover the real needs of children of divorce, the need for emotional child support which requires an active, involved relationship with both parents, notwithstanding the divorce.

Since financial child support compliance by mothers is significantly worse than for fathers(9), the term “Deadbeat Dads” is as bigoted and as irresponsible as any racial epithet. Perhaps the lower compliance rates of “noncustodial” mothers indicates the primary reason for noncompliance in general, i.e. financial inability to pay and resistance to court-ordered payments when the obligation creates a financial hardship which cannot be justified by the best interest of the children. Our judicial system is extremely sympathetic (at least financially) to mothers without custody (although society often inappropriately stigmatizes such individuals) and seldom requires payment of any financial child support.

Whether the extent of noncompliance with financial child support orders is an indictment of obligors or an indictment of our domestic relations industry is in question, even though such issue does not appear to have been seriously considered by the Commission. The industry is doomed to failure because of its insistence on viewing “noncustodial” parents as objects for bureaucratic manipulation rather than as parents and loving participants in the lives of their children. Where is the realization that parents financially support their children out of love and not because the bureaucracy has the power to imprison them if they fail to honor their role after a divorce as an anonymous cash donor to the “custodial” parent. Fathers face a bureaucracy that ignores the expenses incurred to support their children and views their emotional child support and relationship with their own children with apathy, at best, and hostility, at worst. Where is the concern for the relationship between our nation’s divorced children and their fathers. Until we view fathers as parents and treat them with the respect due all human beings, they will view child support collection agencies as the enemy and who can fault their logic? The Commission treats non-custodial parents as if they were cattle and seeks only new ways to increase cash production and improve herding techniques. The recommendations of the Majority Report merely reinforce the notion that noncustodial parents should be anonymous and complacent cash producers.

The natural parental desire to provide financial child support is best indicated by the almost universal experience of delinquent obligors who give their children expensive presents or lavish entertainment when allowed an infrequent “visit”, even though facing severe sanctions for delinquent financial child support obligations. Such behavior has been referred to as the “Disneyland Dad Syndrome”. Financial child support collection agencies regularly use such behavior to demonstrate ability to pay and completely fail to recognize the desperate desire to support their children when given an opportunity to insure that it will actually benefit the child and sustain the parental relationship, rather than provide financial resources to support the other parent.

The solution to virtually all compliance problems therefore seems obvious:

1) noncustodial parents should be awarded joint custody or extensive parental access;

2) custodial parents should be discouraged from moving the child(ren) away from their other parent;

3) federal programs should be critically reviewed to remove adverse impact on family formation and stability.

Although it is true that a statistical correlation does not establish causation, such blind refusal to evaluate and accept as presumptively valid, the insight provided by the Census Report, is reminiscent of R. J. Reynolds and the tobacco industry’s refusal to accept the causal link between cigarette smoking and lung cancer. Thus, JOINT CUSTODY IS THE PERFECT PANACEA for child support compliance problems! This Commission not only refused to accept this logical conclusion, but BY A TIE VOTE, with two abstentions, decided against recommending that Congress establish a successor Commission to study ways to combat the epidemic problems associated with parental access.

The Importance of Fathers

in Childhood Development

Stereotypical assumptions about the disinterest of fathers has become so ingrained that the U.S. Department of Health and Human Services was actually surprised to learn that young fathers care about their children:

“Research to date has produced a new and significant insight about the fathers of children born to teens: They typically are motivated to support their families, even when they are not married to their partners, and even though they earn disproportionately little and suffer from high unemployment”.(10)

If Johnnie and Susie’s welfare is dependent only on the presence of a nurturing mother and adequate financial resources, the child support compliance objectives of this Commission should ignore any adverse impact of draconian measures on noncustodial fathers. The importance of a father’s involvement in his children’s lives after a divorce should be evaluated solely on the dramatically improved child support compliance evidenced by data such as the recent Census Report and similar literature. However, if the dysfunction of children in single parent households can properly be attributed to the loss of one parent, the noncustodial parent’s involvement in his or her children’s lives should be given primary importance. Fortunately, both fathers and mothers play critical roles in child development, so Congress has an opportunity to embrace shared parenting and thereby advance compliance with child support obligations while dramatically aiding the psychological development of this nation’s children of divorce.

The benefits to children from the slowly changing role of fathers as they become more involved in parenting(11), and the knowledge members of Congress should obtain before making recommendations on social policy in the family relations arena is presented dramatically in Kyle D. Pruett, M.D.’s book, The Nurturing Father. Dr. Pruett is a renowned child psychiatrist at Yale University. His analysis and case studies on children whose fathers were the primary caretaker during infancy are presented in a manner which is both compelling and captivating. Instead of

exhibiting difficulties, the children fared as well as normally expected, and excelled in several significant areas.

Conventional wisdom, in contrast to Dr. Pruett’s findings, currently reflects pervasive confusion about the proper roles of fathers after a divorce. Although the American society has accepted the feminist revolution and concepts of equality in the workplace, equal rights and responsibilities for parents are far less accepted. Moreover, many advocates for feminism support a woman’s right to choose between the roles of career and mother/housewife but are unable to contemplate a similar option for men. Men are chastised repeatedly in the press for failing to assume equal responsibility for housework, but even a casual review of parent-child magazines demonstrates that modern American culture views parenting as the exclusive domain of women. Such bias is most evident in custody, visitation and child support. The empirical data inescapably demonstrates pervasive gender bias against the active parental involvement of fathers after divorce. Since much of the sexual discrimination against men is perpetuated by men and because it has become so ingrained in our culture, most people are unaware of its extent and many fail to even recognize its existence. The misfortune of personal experience or the shared experience of a close friend or family member whose life is destroyed by the discrimination institutionalized in the judicial systems of U.S. divorce courts is the primary sensitizing factor providing such insight. Each member of Congress is asked to talk to at least one divorced father and discuss his experience with the divorce industry and keep the discussion in mind when considering the proposed legislation.

Does institutionalized sexual discrimination explain the public’s lack of awareness of the gender bias against men? Every divorced father believes his Constitutional rights of due process and equal protection were violated or ignored. Some express the concept as judicial bias, while others merely address their anguish and frustration when they realize that unless they were model citizens and perfect parents andtheir spouses are proven to be “unfit”, they are not going to receive more than nominal visitation. Can all of these people be wrong? If carefully questioned, few divorced women, divorce lawyers or judges would disagree. Feminist groups, which properly attack gender bias in the workplace, are unwilling to eschew the gender bias which creates a feminist advantage in the areas of child support, custody and alimony. The Census even shows that a lower percentage of women with joint custody are below the poverty level.

The divorce courts in our country are structured to serve as a guardian and protector of women and mothers. Their success in making the public aware of this role is perhaps best illustrated by the propensity of men and women to file for a divorce. Approximately seventy-five percent of domestic relations cases are initiated by women.(12) Men are well advised to view divorce as a nightmare worse than the worst marriage could ever be, since he will likely lose any substantive relationship with his children and be “taken to the cleaners” financially. Our newspapers regularly report a father’s murder-suicide when faced with divorce, yet no one ever asks what caused such absolute desperation that so many men perceive such heinous behavior as their only escape.

The pervasive “cookie cutter” approach to custody decisions results in large part from the judicial dislike of divorce proceedings which clog their dockets. Our judges correctly assumed that if the average father thought he had a chance to obtain sole or joint custody, the floodgates of litigation would be opened. Their primary concern for docket control, rather than the best interest of the child, also allows our judiciary to accept the current trend against joint custody based on inadequate supporting evidence on relitigation, over the documented studies which show the many benefits to the child’s psychological development and the substantially improved child support compliance.

Judges and lawyers actively discourage litigation by convincing fathers that their chances of sole or joint custody is remote and will be extremely expensive. Accordingly, if fathers are offered more than the traditional alternate weekend and perhaps one evening on alternate weeks, they feel forced to accept the

offer for fear the judge will order less, or punish them in the property settlement or alimony provisions of the judgment. Few custodial fathers seek or obtain child support, for the same reason.

Equal Protection

The Federal public policy against sexual discrimination is stated generally in the Fourteenth Amendment, as well as in many important specific areas. Thus, sexual discrimination is barred in education (15 Am Jur 2d, Civil Rights, §§ 84-92), employment (15 Am Jur 2d, Civil Rights, §§154-192), housing (15 Am Jur 2d, Civil Rights, §§477-490), public accommodations (15 Am Jur 2d, Civil Rights, §§29,43), and credit opportunity (Am Jur 2d, New Topic Service, Consumer Credit Protection, §126.5 (Supp)). Moreover, 16A Am Jur Constitutional Law at §769 states that “the trend is to strike down discrimination based on sex in many other areas, such as probate, domestic relations, sports or athletics, benefits under the Social Securities Act, benefits under workmen’s (sic) compensation laws, retirement benefits, ….” (emphasis added and citations omitted). The most recent federal legislation regarding sexual harassment is the Civil Rights Act of 1991 which was signed by the President on November 21, 1991. The Act expressly “seeks to expand the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” Congress found additional remedies under federal law are needed to defer unlawful harassment and intentional discrimination in the workplace.” Clearly, the trend noted in Am Jur is continuing.

Classifications based on sex, like classifications based on race, alienage and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny, under the Equal Protection Clause of the Constitution, Frontiero v. Richardson, 411 US 677 (1973). Merely asserting that a statutory scheme discriminates against men does not protect it from such scrutiny, Orr v. Orr, 440 US 268 (1979). Hence, to withstand constitutional challenge under the Fourteenth Amendment, classifications involving governmental action must serve important governmental objectives and must be substantially related to achievement of those objectives, Personnel Admr. of Massachusetts v. Feeney, 442 US 256 (1979). Accordingly, gender-based classifications in the Massachusetts criminal code proscribing spousal or child non-support were held unconstitutional. For other cases holding state criminal statutes unconstitutional, see e.g. Cotton v. Municipal Court for San Diego Judicial District, 130 Cal App 601 (1976) (statute imposing criminal penalties only against fathers); State v. Fuller, 377 So 2d 335 (crime for husband but not wife to fail to support destitute spouse). In Fuller, supra, the court concluded that there was no reason to use sex as a proxy for need and also rejected the state’s assertion that its objective was to rectify

past employment discrimination against women which had resulted in their failure to obtain good paying jobs to support themselves.

There can be little doubt that the well established Federal public policy of the United States opposes discrimination based on gender. Even though the Federal Equal Rights Amendment was never formally adopted, its precepts are clearly incorporated into numerous state and federal statutes. Many states have adopted their own Equal Rights Amendment. Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment to the Constitution are the primary authorities which prohibit sexual discrimination. The Equal Employment Opportunity Commission (“EEOC”) in its August 27, 1990 Policy Guidance based on Title VII, announced that an employer cannot establish different parental leave benefits for male and female employees without violating Title VII. Moreover, the EEOC held that a sex-based differential for child care leave (beyond the period of a medical disability) is not justified because gender is irrelevant to benefit questions and because “stereotypical characteristics” about the child care duties of working females versus working males do not provide a valid defense to clear violations of the Civil Rights Act. The EEOC also cautioned against any attempt to circumvent the issue by facially neutral policies which result in an adverse impact on fathers. For example, plans which limit child care leave to employees with working spouses, to married employees whose income is less than half the household income, or to employees whose spouse is not also on leave are all viewed as sexually discriminatory violations of Title VII.

It is astounding that such clarity on gender bias exists in the area of employment and is completely absent in the area of domestic relations. The domestic relations industry would never withstand close judicial scrutiny of its many gender neutral policies which have known or foreseeable adverse impact based on sexual demographic characteristics of men and women.(13) Hopefully, the benefit of federal initiatives, such as the Congressional review of the recommendations of this Commission will begin to

question the sexual/gender bias which pervades state custody laws and practices.

Joint Custody as a Financial Issue

For Women

The popular view of divorce is that it contributes to the impoverishment of women and children. This Commission is asked to review the Article entitled “Joint Custody, Feminism and the Dependency Dilemma” which was published in the 1986 Berkeley Women’s Law Journal. The Article acknowledges the correlation between joint custody and child support compliance and asserts that joint custody offers financial opportunities to women which are otherwise unavailable to a single parent. The Article is excellent, except for the assertion at page 39 that “women and children should not have to pay for joint custody by accepting a standard of living considerably below what the parties enjoyed during the marriage.” This issue confuses financial child support and alimony. In addition, an appropriate reduction in child support to reflect the child’s expenses incurred directly by the

father, inures to the child’s benefit and is difficult to criticize.

Karen DeCrow, the past National President of NOW, in her address to the 1982 Convention of the National Congress For Men held in Detroit, Michigan made several salient points which are echoed herein during her speech she entitled “Holding a Revolution; Only Half the Participants Came”, as follows:

Men are not money machines

“What is it I’ve been saying since the late 60′s: Men are not money machines. Men are not put on this earth to support women. Women are not put on this earth to be supported. Women and children should not be lumped together to be taken care of by men….

Now, the way I came to the position that men should not be money machines was not because I didn’t like someone, you know, buying me furs and jewels. It was because I concluded very early in life that being a dependent is no advantage….

Now, let me give some items that I hope will serve as examples. Remember the palimony case? Marvin vs. Marvin. I loved every minute of it. I thought it was high humor. It was better than Saturday Night Live by a mile….I think it is a good example of “Men-the-Money-Machine“. My favorite line in the whole case, and believe me there are some good ones, was when the current wife of Lee Marvin was interviewed about her husband having to pay out all this money to his former female friend. She said, ‘Why does she have to have my husband support her?’ Now that is why you men who want custody aren’t getting it. I mean there it is in a nutshell. It wasn’t, you know, God forbid, that she should go out and work, or that she should find some other woman to support her. No! Why doesn’t she find some otherman. Why my husband, of all people?

Who should support Michelle Triola Marvin, Lee Marvin’s former live-in friend? Should it have to be Mrs. Marvin’s husband or another man? …Man A or Man B, or another nice

guy living down my street? You know, maybe we could get him to do it!”

* * * * * * * * * * * * * * *

RESPONSE TO SPECIFIC PROPOSALS BY THE COMMISSION

The following analysis takes each of the provisions recommended by the Majority Report and briefly responds to the relative merits or deficiencies with each provision. This Minority Report is edited and does not contain the specific recommendations on each item in the Majority Report because inadequate space was allowed. (Any individual desiring the full Report or authorities cited, including specific language recommended for each item addressed by the full Commission is asked to contact Phillip Holman, Esq., at 400 Renaissance Center, Suite 1900, Detroit, Michigan 48243, telephone number (313) 259-1144.)

In general, parental access should be added to each recommendation by substitution of domestic relations order whenever the recommendation contains the term “support action”, or similar reference to only a portion of the court order. Little justification exists for adopting one standard for financial child support enforcement and another for parental access. For example, the Commission would only recommend full faith and credit be given to one line of the domestic relations order. Each recommendation of the Commission should be appropriately modified to apply to the entire domestic relations order with equal or greater concern and resources allocated to promoting equal parental access. Financial obligations should be imposed equally on both parents and accountability equal to or greater than the standards applicable to social security benefits received for a dependant child adopted. More importantly, cost benefit analysis should be implemented on each provision before such measures are adopted. There is no evidence that any of the recommendations will result in significant improvements in either paternity establishment or increased child support compliance. Small innovative test programs to ascertain feasibility and evaluate adverse and unintended consequences should be considered and critically evaluated.

1. Jurisdiction and Choice of Law. Excessively broad jurisdictional recommendations are recommended reflecting concern only for the custodial parent and enforcement agencies. The Commission would grant jurisdiction based solely on ability to serve the noncustodial parent in the state – such as when exercising parental access (visitation). Similarly, the mere act of acknowledging paternity with an enforcement agency or putative fathers registry within the state would confer jurisdiction. Such measures hardly encourage acknowledgement or involvement by putative fathers, nor do they reflect adequate concern for due process. Sadly, the lack of concern for fathers continues throughout the Commission’s Report.

The Minority Report encourages and supports adoption of the portion of the jurisdictional recommendations of the Commission providing for the state in which the parents resided during the marriage to generally retain exclusive jurisdiction. This provision is one of the few issues raised by the Commission in which the concerns of noncustodial parents prevailed over significant efforts to prefer the custodial parent.

The removal of children from the immediate vicinity of the other parent should generally be discouraged (see SOAP). Congress is asked to seriously review the extent of the problem of interstate flight to avoid parental access in the event efforts to adopt child-state jurisdiction are renewed during Congressional deliberations. The opposition to the Commission’s decision asked for the residence of the children (i.e., the residence of the custodial parent) to govern. Among the concerns with such provisions are the following:

(1) Forum shopping by the custodial parent;

(2) Bias against out-of-state absent parent; and

(3) Additional financial burden on parent who has already lost the ability to preserve the parent/child bond and need for healthy contact and generally is already required to incur additional transportation costs as the result of a decision made by the other parent.

2. Uniform Interstate Family Support Act. This Report does not support enactment of the Uniform Interstate Financial Support Act (“UIFSA”), which essentially attempts to provide the broadest possible jurisdictional base for financial child support enforcement. At the last meeting of the Commission, a decision was made to support adoption of a prior provision of UIFSA by the Uniform Laws Commission because the latest draft eliminated one broad jurisdictional provision recently held unconstitutional. This Commission is inadequately concerned about the need for constitutional due process and desires to allow child enforcement proceedings within the state of residence of the custodial parent, with no concern for the other parent. It is important to realize that the Uniform Laws Commission had no fathers’ rights representative and thus had even less diversity in its membership.

3. Expansion of the Federal Parent Locate System and State Cooperative Agreements for Locate. Inappropriate intrusion into the lives of affected individuals should be considered and avoided without far greater assurance of benefit than presently exists. This Report does not otherwise take exception to the proposed expansion other than by way of questioning whether the funds would not be better spent elsewhere.

4. Locate. This Report does not take stringent exception to the substantive provisions set forth under this heading, except as otherwise set forth herein. However, with regard to Subparagraph 4(b), rather than establishing an additional roadblock or review process, such information should be automatically available to both parents in the absence of a valid and outstanding court order restricting one parent’s access to the child in the form of a protective order which expressly restricts disclosure of such information by the federal and state parent locate system. Unless determined at such level, access will almost inevitably be denied in practice based on unsubstantiated allegations by the custodial parent.

5. National Reporting of New Hires. The national reporting of new hires, at least in the manner proposed, is extremely discriminatory against noncustodial parents. In light of the Braver study and SOAP, it is clear that unemployment is the primary cause for noncompliance. Accordingly, this provision may well have the unintended effect of making it more difficult for such individuals to obtain employment and thereby unable to provide financial support. Such discrimination is a major concern for individuals who have only limited employment opportunities. Finally, such individuals are more likely to be hired by smaller employers who would have to enact procedures to accommodate the additional legislation and incur the necessary costs or face the severe sanctions imposed by the proposed legislation.

At a minimum, the national reporting of new hires should apply to all divorced parents. This would aid in locating custodial parents who are in violation of parental access orders. In addition, custodial parents should be required to disclose the number of days of parental access ordered by the court on a form which contains the federal public policy to preserve the child’s emotional bonds and need for healthy contact with both parents, together with available sanctions for access denial. Finally, a program the magnitude of the war on drugs, should be instituted to reverse the national crisis stemming from single parent households and parental access denial.

6. Service of Process. Proper service of process is an essential element of the Constitutional guarantee of due process. The recommendations for alternate service appear designed primarily to remove procedural protection designed to ensure actual notice to parties to a litigation. Although the Minority Report encourages simplified procedures, all such procedures should be evaluated and tested with the primary consideration given to due process and a determination of whether such notice is actually received. Any method of service which fails to provide actual and timely notice to enable the party receiving such notice an opportunity to respond should be eliminated. For example, the recommendations for service on designated agents for military employees, including employees who are stationed outside the United States, impose no obligation on the military to forward the notice to the federal employee and, in all likelihood, would result in most proceedings being heard substantially prior to receipt of any actual notice, much less in time to prepare a response.

7. Notice to Agencies and Custodial Parents. This provision is incredibly intrusive on the private relationship between former spouses, particularly in situations which do not involve AFDC. The concept that child support enforcement agencies would be able (and implicitly encouraged) to proceed with a collection proceeding or a child support modification without actual notification to the custodial parent is extremely counter-productive. Such agencies have no way of knowing the extent of informal support being paid by such parties and whether the custodial parent has any desire to encourage the disruptive procedures inherent in a child support proceeding. The recommendation should not be enacted, except with regard to AFDC cases.

8. Statewide Uniformity. The most offensive provision of this paragraph is the recommendation that jurisdiction be transferred to the county in which the child resides. This provision should be consistent with the provision for interstate jurisdiction, namely that the county with original jurisdiction continues so long as the child or either party resides in such county. Both the Braver study and SOAP make it clear that the distance between parents and the ability to maintain regular contact is critically important to child support compliance. Governmental policy should take all actions reasonably available to discourage any reduction in parent-child contact. Relocation within a single state can involve great distances, often far greater than moving across a state line. Accordingly, reducing the cost to the parent who initiated the move should be discouraged.

9. Parentage. This Report recommends that the primary focus for paternity actions be directed towards maximizing the day-to-day involvement of the father in paternity cases. Federal assistance should not be eliminated where the parents marry and all federal assistance should be oriented towards allowing recipients to become self-sufficient and to encourage family formation.

Within a state, the venue for parentage determination should be the county of residence of the alleged parent and all federal and state agencies should take a proactive role to encourage and maximize the bond between father and child in all paternity cases. This Report strongly supports the recommendation for nonadversarial proceedings, but suggests that each of the provisions of this section needs to clearly delineate the importance of increased parental access and educational material consistent with recommendations for decriminalization, and minimizing the adversarial nature of domestic relation and paternity proceedings and to give access priority, rather than collection. In the long run this will clearly serve to the benefit of all parents, children and federal support obligations.

10. Interstate Evidence. This recommendation goes well beyond any reasonable search requirement. It would require disclosure of proprietary business and personal information, is overly broad to address legitimate concerns and should be limited to necessary information. General access to all income information, regardless of its source, is too broad and too intrusive. Each provision should apply equally to all portions of the domestic relations order.

11. Fair Credit Reporting Act. This Report supports the Commission’s recommendation.

12. Guidelines. Due to the partisan nature of the current Commission and the proposed commission, this Report cannot support this recommendation. If a successor commission is appointed, Congress should combine the issues of access and financial child support compliance and insure that any commission is nonpartisan by carefully balancing its membership between individuals who are inclined to advocate on behalf of custodial and noncustodial parents. Neutral parties with substantial contacts to both parents should be the primary constituency. Such commission should clearly delineate a minimum right of parental access in all cases (except where child abuse or neglect is established by clear and convincing evidence). Current guidelines are anti-family and have been shown ineffective in generating just and appropriate awards.

Among the more notable exceptions taken to the Majority Report is the implication in Subparagraph B(3) that the custodial parent could preclude a downward modification by opting out of any review and/or modification. Clearly, an opt-in provision with simultaneous notice to both parents is more desirable, vis-a-vis minimizing the disruptive nature of intervention. This Report suggests that as a component of any such commission, states should be required to review, evaluate and monitor the gender bias of all judges, lawyers, financial child support enforcement personnel, etc., and take appropriate educational or other remedial measures when such gender bias is implied from a statistical analysis of custody, parental access or financial child support decisions. Affirmative action goals to rapidly eliminate gender disparity in each such area should be required in all states.

13. Duration of Support. This Report strongly objects to the duration of support beyond the age of majority. Much like the desire by many parents in intact families, a critical function of parenting involves the ability to withhold financial resources in order to encourage and motivate educational pursuits and programs deemed appropriate by the parent making such expenditures, or to encourage self-reliance. Unless our government is prepared to require that all parents provide a college education to their children, this provision violates equal protection. Where disability is involved, post-majority child support should be optional, not mandated as set forth in the Majority Report, and should apply equally to both parents.

14. Presumed Address of Obligor and Obligee. Any laws requiring notification to courts should apply to both obligors and obligees. Moreover, personal service is the best manner of notification and it is inappropriate for the federal government to mandate such an inadequate form of notification as first class mail to the address of record. This provision will predictably create many injustices. The population involved is by definition mobile, unstable and understandably views the court and child support enforcement agencies with distrust. Until adequate checks are adopted to remove the bias against noncustodial parents, the administrative convenience of federal and state agencies should not be given greater importance than the due process rights of obligors.

15. Social Security Numbers. Listing social security numbers on all domestic relations orders is already widespread, but the marriage license listing and any concern with the inherent negative implications about the likelihood of divorce should be left to each state. However, perhaps premarital agreements on custody, financial child support and parental access should be encouraged and generally enforced (unless clearly contrary to the best interest of the children involved).

16. Court Management Practices. The referenced abstract should be available for review by both parties and each given an opportunity to correct inaccurate information. This Report urges the federal government to mandate the elimination of all derogatory terms such as “visitation”, “custody”, etc. In addition, preferential trial settings should be granted to all domestic relations matters, rather than merely to paternity proceedings.

17. State Child Support Agencies Standards and Practices. Congress should reject as inappropriate, federal child support enforcement agencies involved in advocating for their own vested interests. It is inappropriate for a federal agency to engage in partisan activity in support of one political position. This violates federal regulations on the behavior of individuals employed by the federal government, violates state constitutional clauses against exclusive rights and privileges, and violates the Fifth and Fourteenth Amendments. Any informal administrative procedures should be carefully reviewed to avoid unfair and unjust results without adequate due process. Child support enforcement agencies have a tendency to choose simplicity over either accuracy or fairness. Such record does not comport with the grant of additional powers and responsibilities. Advocating to provide the maximum economic security is not appropriate, since the maximum economic security of the child would confiscate all income of both parents. Moreover, not all custodial parents are poor, and not all noncustodial parents are wealthy. Instead, the only allowable standard should be a determination of the appropriate and reasonable cost of child expenses, imposed on both parents based on their relative income and expenditures by each parent directly on behalf of the children. Allocation of such expenses based on the percentage of parenting is appropriate for ease of computation. (See, e.g., Michigan’s Shared Economic Responsibility Formula). SOAP discloses [SOAP pg. viii] that although formulas for setting award levels increase the average amounts of award levels, they decrease compliance. Moreover, not all custodial parents are poor, and not all noncustodial parents are wealthy. Indeed, the Census Report released on January 10, 1991 found that white female heads of household have more net assets ($22,100), than white male heads of households ($16,580).

Child support enforcement agencies have adequate power and authority without establishing themselves as judicial tribunals. Similarly, such agencies should not be identified with either party, but rather enforce the order of the court. Their primary duty should be to ensure that both parents are properly complying with their obligation to support their children, including ensuring the appropriate application of funds provided to the custodial parent. Federal policy should make it clear that child support enforcement agencies owe an equal obligation to noncustodial parents and should focus an equal amount of funds and staff to addressing such concerns as parental access and accountability. Accordingly, any brochures prepared by OCSE should clearly promote involvement by both parents and should be distributed equally to both custodial and noncustodial parents.

Legal and administrative actions should be equally available to all parents and public service announcements should be equally divided between financial child support compliance and access enforcement. Any written material should clearly delineate the rights and obligations of both parents. Enforcement in child support should only occur when initiated by one of the parents in order to avoid disturbing an amicable relationship based on the then current status quo. All public relations material should avoid stereotypes and misinformation, such as: implying that noncompliance results because parents do not love their children, or are irresponsible, that nonpayment is a leading cause of poverty for children; that greater enforcement significantly reduces the taxpayers’ expense; or that most custodial parents are poor while most noncustodial parents are wealthy. The reality that: “the impoverishment of women and children results primarily from never married single parent households and divorce in families with only marginal household income prior to the divorce” should be accurately reported. Finally, equal access should be given to obligors and obligees, and their counsel.

18. Direct Income WithholdingThe Commission ignores the huge costs to employers of direct income withholding. Prior to implementation of this provision, adequate data on compliance for employednoncustodial parents should be critically reviewed to ascertain whether such costs are justified and offset the adverse impact on noncustodial parents. Any direct income withholding should be carefully reviewed to evaluate and eliminate the difficulties with intractable orders which prevent or delay proper adjustments. If enacted, employers should be required to adjust withholding upon request by the employee and notification to the appropriate court or agency. In the event any employer involvement is recommended or mandated, the employer should be obligated to notify the designated court upon termination of employment. In addition, standard forms should be required to be provided to the affected employee and any downward modification of child support orders should be effective as of the date of termination of employment, subject to a requirement that the employer be required to reimburse the employee for improper delay. The simplified pro se proceedings for downward modification of child support which were required under the Family Support Act of 1988, should be enforced and put into effect in all states without further delay. Child support agencies should vigorously pursue downward modifications when appropriate, with equal vigor currently applied to collection efforts.

19. Enforcement. The enforcement provisions set forth herein, such as revocations of driver’s license and occupational and professional license, clearly proceed from the false assumptions previously addressed. Since unemployment is the primary contributing factor to noncompliance, these provisions are grossly misdirected and will both diminish compliance and further alienate noncustodial parents by the criminalization of their marital and parental status. Premature access to retirement funds, notwithstanding substantial tax penalties, ignores due process and if allowed, this should only be applied to willful and flagrant violations.

Subparagraph (q) regarding the statutes of limitation should be amended to require that any back child support collected after the child attains age 18 should be paid directly to the child. The funds were ordered by the court to be used on behalf of the child and if never received, could never have been spent by the custodial parent. Payments to the custodial parent are not in the best interest of the adult children of divorce.

Enforcement of financial child support is already the most burdensome form of debt collection in the United States. Our tax revenues guarantee that the debtor’s wages will be garnished, tax refunds will be intercepted, liens will be placed on property and that delinquent obligors will be placed in the only form of debtors prison allowed to survive in the United States. Despite the multitude of enforcement devices already available, many contend that compliance remains unsatisfactory. The time has come to ask the question “why?”. Can Congress reasonably enact the proposed legislation until someone collects data regarding the number of delinquent obligors who are only marginally employed, unemployed, disabled, dead, in jail, supporting second families, or refusing to pay as a form of civil disobedience because they have been unable to see their children.

20. Federal Employees and Benefit Recipients. This provision clearly misunderstands the dire straits of noncustodial parents receiving disability payments. Such means tested receipts should be excluded from income unless dramatically beyond the level necessary for subsistence.

21. Criminal Nonsupport. This provision is inconsistent with any desire to decriminalize and reduce the adversary nature of domestic relations proceedings. As such, it can only serve to increase the conflict and exacerbate the existing problems. If criminalization is sought, denial of parental access should result in equal or greater sanctions and enforcement by all courts and governmental agencies.

22. Health-care Support. Thirty-five million Americans do not have health insurance. Making health insurance mandatory for parents after divorce shows inadequate insight into the economic realities of the individuals affected. Health care provided to employees without additional cost should always be given priority without regard to the parent for whom such benefits are available. Although additional insurance coverage is beneficial, current financial support obligations already exceed the financial ability of many parents. Any amount required to be spent should clearly reduce the obligations presently being imposed by states with excessive formulas or which do not give adequate consideration to the income of the custodial parent or the expenses incurred by the noncustodial parent in connection with his or her parental access. Such expenditures by the noncustodial parent often exceed the amount of child support ordered by the court, particularly in the case of the most involved parents whose efforts should be applauded rather than hindered by creating inappropriate financial roadblocks. Any requirement for W-4 disclosure should apply equally to the obligee.

23. Young Parents. Federal programs should encourage family formation, shared parenting, joint responsibility by both the custodial and noncustodial parent for financial and emotional child support of their children, especially in paternity cases. The current insensitivity to fathers by enforcement agencies incident to implementing the Family Support Act of 1988 have doubled the percentage of fathers who abandon federal programs from under 30% to over 60% in two years.

24. Indian Children and Tribal Courts. Due to the Commission member’s professional conflict in connection with his employment, no position is taken on this provision.

25. International CasesFull reciprocity is supported.

26. Interstate Compacts. Cost benefit analysis is required.

27. Bankruptcy. Child support obligations should be excluded from discharge in bankruptcy only where willful misconduct is clearly established. Current policies falsely presume improper motive and do not allow discharge in bankruptcy. Loss of the fresh start allowed by bankruptcy creates only desperation and eliminates any employment incentive.

28. Collection and Distribution of Support. Prior state experience shows that credit card authorization is irrelevant, since noncompliance generally involves parents without adequate credit to obtain credit cards. Similarly, delinquent obligors have inadequate funds in bank accounts to pay the amounts involved. Delinquent obligors simply do not have sufficient assets to meet their financial obligations. The attempt to overwhelm obligors with the enormity of the cost of federal programs is unconscionable and appears designed to hide the true cost of the proposals. Benefits collected should be paid first to children with adequate standards of accountability applicable to both parents.

29. Funding and Incentives for Child Support Agencies. All funding incentives should be eliminated due to the inherent tendency to alienate public employees from noncustodial parents and to encourage inappropriate collection measures.

30. Placement and Role of the Federal Child Support Agency. A complete reorganization of federal child support agencies is encouraged, with the primary importance given to a focus of the best interests of children, rather than the partisan collection efforts presently given priority. The partisan nature of the proposed commission would dictate inappropriate and partisan recommendations. Until the current recommendations are critically reviewed and revised, this Report cannot support the Commission’s proposal.

31. National Advisory Committee for Child Support. Any advisory committee should have an equal voice from custodial and noncustodial parents, with financial child support agencies deemed to be representing custodial parents, absent substantial change in current practices. Any budget for the advisory committee should clearly delineate equal funding of concerns of custodial and noncustodial parents.

32. Training. All programs should equally apply to parental access and federal expenditures should be evaluated based on reliable data and a properly applied cost benefit analysis.

33. Audits. Federal funds should be tied to compliance with parental access objectives and whether child support orders are immediately reduced for unemployment.

34. Interstate Data Collection. Data collection as set forth herein is recommended.

35. Child Support Assurance. Unintended consequences of legislation such as AFDC which discourage family formation and encourage disintegration should be carefully evaluated.

36. Children’s Trust Fund. Any such fund should be equally distributed to access enforcement and financial child support.

37. Future Commissions. Any such commission should give parental access highest priority and should be carefully evaluated for partisan membership. The federal role in post-divorce should be primarily devoted to the best interests of children. Measures to correct prior abuses of the federal and state programs which have contributed to the national crisis of single parent households should be given priority. Promoting the involvement of both parents in the financial and emotional support of their children before, during and after divorce should be the primary concern.

38. Federal Role in Enforcement. The primary role of the federal government should be to eliminate the present gender bias of existing courts, enforcement agencies, state and federal programs, etc. which were intended to benefit children and have the unintended effect of alienating noncustodial parents and reducing their involvement in their children’s lives, contribute to family disintegration and/or discourage family formation.

Absent the restoration of the fundamental importance of both parents and sensitivity to preserving the child’s emotional bonds and healthy contact with both parents, the future of children in our society will continue to portend disfunction and despair. Hope for substantial and beneficial improvement in the quality of life for our progeny lies in the changing of the American credo from “the flag, motherhood, and apple pie” to “the flag, motherhood, and fatherhood.”

Thank you for your time and consideration.

Sincerely,

Don A. Chavez, MSW, L.I.S.W.

Member U. S. Commission on Interstate Child Support

DAC/(pjh)

Acknowledgements: The following individuals made substantial contributions to the preparation of this Report:

1) Phillip J. Holman, Esq., (Editor and principal author) Director of the National Congress for Men and Children, Detroit, MI

2) Roger Gay, M.S., Lewisville, Texas

Research Department, Texas Children’s Rights Coalition

3) Ron Henry, Esq., Baker & Botts, Washington, D.C.

1. The percentage of children living in households with only one adult tripled from 1960 to 1988, Fuchs, Victor R. and Diane M. Reklis, America’s Children: Economic Perspectives and Policy Options, Science Vol 255, p 43.

2. Garfinkel, Irwin, and Donald Ollerich, 1983, Distributional Impact of Alternative Child Support Systems, Policy Studies Journal, Vol. 12, No. 1, September, 1983, pp 119-129. Similarly, an OCSE 1985 report by Ronald Haskins, et al Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families, Final Report, Grant # 18-P-00259-4-01, Office of Child Support Enforcement, April 1, 1985, made a crude estimate based on simplistic average income data and selection of two states’ excessive child support formulas, that child support awards could be increased between $10 Billion and $26.6 Billion nationwide. He assumed that all noncustodial fathers were deserters responsible for the increase in AFDC spending and ignored the expenses incurred by involved fathers who would be financially foreclosed from involved parenting, that the AFDC problem primarily results from never married mothers with no support orders and that most financially able fathers support their children. Haskins’ errors were compounded by Williams, Robert G., 1987, Development of Guidelines For Child Support Orders: Final Report, U. S. Department of Health and Human Services, Office of Child Support Enforcement, March, 1987 which presented the difference between Haskins’ hypothetical maximum and the amount of existing awards as an “adequacy gap” in awards, rather than acknowledging the simplistic assumptions used to maximize the “potential” collections in Haskins’ report. The resulting confusion, when states were unable to close a gap actually caused by never married mothers with no support order, led several states to increase awards to middle and upper income mothers or to eliminate the reduced support awards for shared or joint custody. Such actions, albeit made in the name of reducing poverty, did nothing to aid the AFDC problem. For an excellent analysis of these issues, see the proceedings paper of Roger Gay, M. S., A Brief History of Prevailing Child Support Doctrine, Proceedings of the Sixth Annual Conference of The National Council For Children’s Rights, March 19-22, 1992, Arlington, VA, pp 24-27.

3. See e.g. Anderson-Khleif, Susan, Divorced But Not Disastrous: How to Improve The Ties Between Single Parent Mothers, Divorced Fathers, and the Children, Prentice-Hall, 1982. Often fathers cannot pay their support, cannot afford activities with the children… If the divorced father…is ordered to pay an amount of support that makes it impossible to meet his own living expenses and pay for visitation activities–he probably will not see much of his children.” pp 148-150.

4. Children in step-families show every bit as many problems as children in single-parent homes. See National Commission on Children, “Speaking of Kids: A National Survey,” 1991; Zill, Child Trends. Thus, the concept that increased financial assistance will alleviate the emotional problems of children of divorce is not supported by the data.

5. For additional studies showing a correlation between parental access and financial support compliance, see e.g. D. L. Chambers, Making Fathers Pay: The Enforcement of Child Support, (1979); J. S. Wallerstein & D. S. Huntington, Bread and Roses: Nonfinancial Issues Related to Fathers’ Economic Support of Their Children Following Divorce, The Parental Child Support Obligation 135 (1983); Furstenberg, Nord, Peterson & Zill, Life Course of Children of Divorce: Marital Disruption and Parental Contact, 48 Am Soc Rev 656 (1983); S. L. Braver, I. N. Sandler & S. A. Wolchik, Non-Custodial Parents: Parents Without Children (1985) [symposium presentation at annual meeting of American Psychology Association, Los Angeles, CA)]; N. J. Salkind, The Father-Child Postdivorce Relationship and Child Support, The Parent-Child Support Obligation (1983); R. Horowitz & G. Dodson, Child Support, Custody and Visitation: A Report to State Child Support Commissions, Amer Bar Assoc, Nat Legal Resource Center for Child Advocacy and Protection, Child Support Project (July, 1985) pp 22-24.

6. 6In reviewing this paragraph, each reader is asked to keep in mind the point which was not even addressed by the article; i.e. where noncustodial parents are unemployed and no adjustment is made in their financial child support obligation (whether from fear of involvement with the divorce industry, financial inability to afford a lawyer or from pride which kept the parent from admitting they needed a reduction)the delinquency in the amount legally owed, grossly exceeds a fair determination of the unemployed parent’s financial child support obligation.

7. 7See also, Ray Rainville, Presentation: Child Support Technology, 3rd National Court Technology Conference, Dallas, TX, March 11-15, 1992. In a two week review period, established that at least fifty percent (50%) of fathers listed by New Jersey State Courts as delinquent by more than Fifty Thousand Dollars ($50,000), were actually cases in which the child had attained the age of majority, the jurisdiction had changed, or the order had long since been invalid for some other reason; but the orders had never been removed from the court’s records.

8. 8See e.g. Anderson-Khleif, Susan, Divorced But Not Disastrous: How to Improve The Ties Between Single Parent Mothers, Divorced Fathers, and the Children, Prentice-Hall, 1982 pp 148-150 (“Divorced fathers who keep in touch with their children … end up with many of the same expenses that live-in fathers have. They pay for many extras that have nothing to do with their legal child-support obligations…”).

9. 9Meyer, Daniel R. and Steven Garasky, 1991, Custodial Fathers: Myths, Realities and Child Support Policy, p. 22. Office of Income Security Policy, Office of the Assistant Secretary for Planning and Evaluation, Department of Health and Human Services. (Fathers studied in Wisconsin were less likely to receive support awards (30%) than mothers (80%), and fathers (47%) were more likely than mothers (27%) to receive no payment of amount awarded). See also1991 Statistics of Child Support Compliance, Office of Child Support Recovery, State of Georgia.

10. 10The Changing Face of Child Support Enforcement: Incentives to Work With Young Parents,” HHS December 1990. See alsoManhood in the Making: Cultural Concepts of Masculinity, Davis D. Gilmour, Yale University Press, 1990, p 229.

11. 11In August 1990, a Los Angeles Times survey reported that 39 percent of fathers would quit their jobs to stay home with their children if that option were available to them.

12. The Research Department of Texas Children’s Rights Coalition advised that published national reports/estimates on the percentage of women who file for divorce range from 74% to 80%.

13. For example, the “primary caretaker” theory currently in vogue as a substitute for statutory maternal preference in child custody, is first and foremost a device to maximize the number of cases in which the Court will be compelled to award sole custody to the mother. It is a warm, fuzzy word with superficial appeal. However, every definition which has been put forward or this term has systematically and purposefully counted and recounted the types of tasks mothers traditionally perform while excluding the tasks nurturing fathers typically perform. See e.g. definition by Professor Carol Bruch which gave custodial preference to the parent, “regardless of gender” who has devoted significantly greater time and effort in….breastfeeding.