Ever feel like a walking checkbook? Billy needs braces? Time to write a check. Little Jillian fell off the swing set? Send Dad the doctor bill. And school supplies? “Your child support only covered half the cost of Tommy’s TI-superduper calculator and none of Susie’s,” your ex says, “so here’s a copy of the receipt. Look, I don’t want to argue with you. Their teachers say they need these. Just pay up,” her hand rolling out, palm up, waiting for your cash.
“And by the way,” she continues, “they don’t want to visit this weekend.” She steps back into her car and drives away from your meeting point, the McDonald’s on Main Street, the exhaust rattling, the kids playing with i-Pods in the backseat. You had the whole weekend planned.
It seems fundamentally unfair to force parents to pay child support even if they do not receive or cannot exercise parenting time. Yet, this is what the law in fact allows for families across the country. If this scene feels all too familiar to you, you are not alone. You may be tempted to stop paying your support, and some parents do. You should not. Just what can you do? Read on.
Pre-Guidelines Support
Historically, judges had discretion to award child support. That means, there was no formula or mandatory rule to follow. Most judges based their decision on two factors, the parents’ ability to pay and the amount of support their child needed. The judge may have also consider the parents’ resources and personal needs, the child’s age and health, and the parties’ pre-divorce standard of living to determine what amount of support was “reasonable.”
The standard was, to say the least, amorphous. As you might surmise, the amount of support actually ordered varied from county to county, even from judge to judge in the same county. Divorcing parents could not predict the amount the judge would order and, therefore, were less likely to settle other terms in their divorce, such as spousal support and property division. The awards appeared arbitrary, and some were. Empirical evidence from the mid-1980s census shows that, as a direct result, child support payors developed a disrespect for child support orders. Many stopped paying support altogether. In 1985, for example, less than half the parents owing child support actually paid the full amount due, and more than one quarter paid none at all.
Without child support, needy newly-single parents turned to the federal government for financial aid. Their numbers plagued an already burdened welfare program.
Enter the Child Support Guidelines
To alleviate the federal welfare program, Congress enacted three Acts between 1984 and 1996 to change this amorphous landscape completely.
Between 1970 and 1984, the federal government required states receiving appropriations under the program Aid for Dependent Child (AFDC) to establish child support enforcement agencies. These requirements became part of Title IV-D of the Social Security Act, and were informally referred to as “IV-D” agencies. The agencies were to enforce child support orders. However, the federal government left the details to the states.
In 1984, Congress passed the Child Support Enforcement Amendments (CESA) to require states receiving AFDC funds to enact support uniform laws. Most notably, the federal government required states to enact laws to withhold support from paychecks, to impose liens against property for support arrears, to deduct the amount of unpaid support from income tax returns, and to provide IV-D agency services to all families, not just those receiving AFDC assistance.
The CESA also established a national advisory panel on child support guidelines. The panel became a part of the federal Office of Child Support Enforcement. With the panel’s assistance, states were to establish numeric guidelines, also known as “child support formulas,” to calculate child support. The guidelines were to be advisory only.
By 1988, the guidelines garnered favor, particularly because they were predictable. Therefore, Congress passed the Family Support Act. The FSA required states to make the guidelines presumptive, not advisory. That is, the guidelines-recommended amount should be presumed the amount of child support to order, unless the payor and/or the payee establish that the amount is “unjust or inappropriate.”
Between 1988 and 1996, the government focused on child support determination. The new laws, while replacing an amorphous child support scheme, did not go far enough. In particular, children whose parents were never married (paternity cases) did not reap any benefit if their fathers were never found, and the states had not given their IV-D agencies enough “teeth” to be a threat to defaulting payors.
Then came the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). With this Act, Congress required states receiving federal assistance (now known as the Temporary Assistance to Needy Families, or TANF, block grants) to adopt tougher penalties. New penalties included driver’s license revocation and liens on occupational licenses. Congress also required states to expand their paternity procedures with the Federal Parent Locator Service (FPLS). Finally, Congress required states to adopt the Uniform Interstate Family Support Act (UIFSA) to permit uniform enforcement and uniform treatment (as possible) for child support orders across state lines.
In less than 12 years, the scene changed dramatically. Now, state guidelines must, at a minimum, take into consideration all earnings and income for both parents, be based on specific numeric criteria (such as the number of overnights each has with their child) and provide for the child’s healthcare coverage. What was once an amorphous method for awarding child support is now rigid, predictable and federally guided.
Separate Rights
This is not to say child support and visitation are separate issues merely because the federal government became hyper-involved in one (child support) and not the other. The federal government got involved to alleviate a chronic and costly problem, the non-payment of child support, by addressing two parts of the problem, determination and enforcement. The government did not address another problem, one pressing families just as much now as then: Whose right is support, and why?
We often hear of marriage as a contract between husband and wife, but that is misleading. Marriage is actually a three-party contract, with the husband, the wife and the state each having interests. Without delving too far into political theory, the basic idea is that the state has at least two interests: an interest in seeing that parties who marry under its laws comply with their duties as married couples under its laws and an interest in seeing that their children are provided for because they are the state’s future citizens. This second interest is a component of the parens patriae doctrine, the doctrine that states have an interest in a rearing a child because that child will one day (or should, rather) become a productive state citizen.
Using this doctrine, states enacted child support laws to ensure that children would receive support. This support is the child’s inherent right. It is a right to a basic level of support for the child’s food, clothing, shelter and care. Moreover, it is the child’s parents’ obligation to provide because the parents brought the child into the world. That is, the child did not ask to be born and should not bear the burden of supporting himself – has a right not to.
Notice two things about this right.
First, child support is not the child’s mother’s right or the child’s father’s right. It is the child’s. In other words, the mother (or father) does not have “a right” to support, and the child support is not “hers.” She holds that money for her child’s benefit. (I realize payees do not always use support for their children’s benefit, but in theory they should).
Second, the physical time the child spends with each parent is not dispositive. A child does not lose his right to support merely because he does not spend time with his father. His right is a right from birth, irrespective of how much time he spends with a parent, until he reaches the age of majority (in most states) or completes schooling (in some).
Tips and Tricks for Maximizing Your Time and Your Wallet
What are you to do when your children spend no time with you, yet you drain your wallet to support them? Unfortunately, attorneys hear stories like yours every day. Whether you cannot pay your current amount, you want your parenting time enforced, or both, here are some things you can do:
Motion to Reduce Child Support: If you cannot pay the current amount, consider filing a motion to reduce it. The standards and procedural requirements vary by state, but, in general, parents who genuinely cannot afford to pay (e.g., have lost a job) will receive a reduced amount or a long-term payment plan. Contact an attorney in your area for information about the rules applicable to you.
Three Year Support Review: The 1996 PRWORA requires states receiving federal assistance to review child support orders every three years. In Michigan, where I practice, support payors and payees have a “one time pass” every three years to ask the Friend of the Court to review their current child support order. All they need to do is send a letter to the Friend of the Court to request it. Contact your attorney, or the court or child support administrator for your case if you do not have one, to find out how your jurisdiction conducts PRWORA reviews. Be cautious, however, because incremental differences may not be enough to modify the current order (in Michigan, we need at least 15% deviation), and you could end up paying more support if your ex- spouse’s income has deceased.
Pay the Right Person: Most states require payors to pay support through the state, along with a processing fee. Some parents pay their children’s custodial parent directly to avoid paying the fee. That is a mistake. Unless and until your order states that you can pay your ex directly, you must pay child support through the state. In most states, the money you pay directly to the other parent will be treated as a “gift,” not child support. Since the appropriate entity (the state) did not receive the money, you would still owe child support. You could even end up paying the full amount twice. If you would rather pay the parent directly, contact your attorney to learn what the local requirements are for opting out of the state payment system. Most states do allow you to opt out, but generally you cannot have arrears and both parents must agree and/or the court must determine a revised child support order is appropriate. In Michigan, for example, the payor and the payee must agree, the payor must have no arrears, and there must be no threats of domestic violence or signs of “strong-arm” bargaining between the parties before the court will consider an opt-out. When you are allowed to pay the other parent directly, if ever, be sure to make the payments by check so that you have a record of when you wrote the check and whether it cleared your checking account.
Parenting Time Complaint: If you ex-spouse denies your parenting time, research the resources in your area for parenting time and custody enforcement. Many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer in your state to learn about the resources available to you.
Show Cause Motion: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction, so be sure to contact a lawyer for assistance.
Motion to Modify Custody/Parenting Time: If your ex purposely denies your time, if your children are unhappy or if you suspect something about your current order just does not “work” and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long- term benefits could be worth the effort, however, if you are legitimately unsatisfied. Be sure to consult a lawyer who practices family law in your state, and schedule an appointment to at least review your current order and the facts in your case as they apply the law. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a custody motion.
Family Therapy: More often, a child’s resistance to parenting time is a symptom of the hurt he feels inside for his family’s breakdown. The breakdown was hard enough for you; now imagine being a child never exposed to adult emotions and ill-equipped to deal with them. The child will cling to one parent for stability at the other parent’s expense. If you are one of these parents, consider individual, joint and family therapy. Community groups may provide them at low or no cost to you. Therapy will provide the child a controlled, out-of-court environment to let out his emotions. Therapy will also provide you and your ex with resources to deal with parenting time issues that will, inevitably, arise as your child ages.
Whatever you do, do not simply stop paying child support. You will have to invest in your relationship with your children if you want parenting time with them. It is your choice whether to do so as the deadbeat parent or the dedicated one. You do not need a lawyer to know which parent the judge favors.
That is, you will have to keep paying if you ever want to play.