The Fatherhood Crisis: Time for a New Look?

Policy Reports | Social

No. 267
Wednesday, June 30, 2004
by Stephen Baskerville

The Role of Government

Figure IV - Total Spending on Child Support Collection in Fiscal Years 1996-2000

Some 40 percent of the nation's children and 60 percent of African-American children live in homes without their fathers.29 If fathers are not abandoning their children in record numbers, why are so many children without fathers? The growth of divorce described above leads to the absence of many fathers from their children's homes. Through the courts and child welfare agencies, the government regulates the divorced family, controlling the access of divorced and never-married fathers to their children. It can also impose financial obligations that fathers are unable to meet, adding to the number of "deadbeat dads."

Unilateral Divorce. Divorce traditionally required finding one marriage partner at fault - adultery, cruelty or desertion were common grounds. But beginning with California in 1969, every state has adopted "no-fault" divorce laws that allow the dissolution of marriages with no finding of fault. In 17 states fault is never considered.30 No-fault divorce might more properly be called unilateral divorce - one partner can end a marriage without penalty and without the consent of the other party. Unilateral divorce thus favors the partner who wants to end a marriage over the one who wants to maintain an intact family.31

"The power of family court judges in divorce proceedings is virtually unlimited."

Family Courts. Over the past 40 years, there has evolved a system of federal, state and local bureaucracies responsible for children's welfare, child protection, child support enforcement and other quasi-police functions related to children. Like the fatherhood problem itself, this apparatus is most highly developed in the English-speaking countries, especially the United States. That is because these countries have a more extensive history of divorce,32 and their Common Law tradition gives wide discretionary authority to judges. Their legal systems also give attorneys incentives to seek redress through litigation. Today, virtually every democratic country, including those outside of the common law tradition, has special courts and civil service agencies for family issues.33 Fatherlessness and this judicial-bureaucratic machinery are growing worldwide.34 The linchpin of this machinery is the judicial system of family courts.

Although they are set up by the states, family courts are unlike any other government body. Unlike other courts, their hearings are usually closed to the public, they generally leave no record of proceedings, and they keep few statistics on their decisions. In some ways they are closer to administrative agencies than courts; Robert W. Page, Presiding Judge of the Family Part of the Superior Court of New Jersey, describes them as a "social service delivery system."35

Power of Family Courts. The jurisdiction of family courts includes divorce, custody, child support, child protection, domestic violence and juvenile crime. Their workload is determined by the existence of these problems, all of which are directly connected with fatherless homes. In terms of their ability to regulate the personal lives of citizens, family courts are regarded by many as the most intrusive and powerful. According to Judge Page, "The family court is the most powerful branch of the judiciary." Page approvingly cites a judicial commission to the effect that "the power of family court judges is almost unlimited."36

The powers of family courts include removing children from their parents, directing the details of the children's upbringing, and controlling the movements, finances and other details of the parents' private lives. The right of a noncustodial parent to remain involved in his children's lives through visitation is a privilege controlled by family courts and bureaucrats. For example, a father may be denied access to children if he does not undergo psychological counseling at his own expense.37

Figure V - Unpaid Child Support Claimed by the U.S. Department of Health and Human Services

Court-imposed divorce settlements now subordinate the rights of the parents to the "best interest" of the children as determined by the courts. To ensure the children's interests are protected, they may be represented by a court-appointed advocate. The best interest standard - in which the court represents the children's interests - gives the government a continuing supervisory role over the family that lasts until the children reach the age of majority.

Family courts describe themselves as courts of "equity" or "chancery" rather than "law." Like other civil courts, the parties have fewer due process rights and the rules of evidence are not as stringent as in criminal courts.38 In general, parents are not entitled to counsel and the standard of evidence is a "fair preponderance" rather than "beyond a reasonable doubt." This is a different standard than the administration of justice or settlement of disputes among parties. In situations that are not covered by statutory law or established common law, family court judges may resort to general principles of fairness or equity to prevent or remedy any alleged wrongdoing toward the child. This gives them wide latitude, with few checks and balances.

"Family court judges issue about 2 million restraining orders each year."

Family court judges can find parents in contempt of court if they fail to pay ordered child support or attorneys' or psychotherapists' fees. Parents jailed for "civil contempt" have the burden of proof to show that they cannot pay.39 Parents can also be charged with "criminal contempt" for failure to pay. However, as the National Conference of State Legislatures (NCSL) explains, "The lines between civil and criminal contempt are often blurred in failure to pay child support cases..." In theory, a trial must be held on criminal contempt charges, but "not all child support contempt proceedings classified as criminal are entitled to a jury trial."40 Further, in apparent contradiction to the Sixth Amendment guarantee of counsel in criminal cases, the NCSL says that "even indigent obligors are not necessarily entitled to a lawyer."41

Restraining Orders. Family court judges may issue restraining orders that limit or prohibit a parent from having contact with their children. Based on counts of restraining orders issued by Colorado family courts, researcher Charles E. Corry of the Equal Justice Foundation, an advocacy group for parents' rights, estimates that family court judges nationwide issue approximately 2 million restraining orders each year.42 All that is necessary in most cases is a request by the custodial parent. Claims of threats or abuse need not be investigated in order for a judge to issue such an order. The noncustodial parent must request an evidential hearing and rebut the allegations to have the order lifted.43

Based on variations in the number and circumstances of the restraining orders issued by Colorado courts in different jurisdictions, Corry estimates that up to one-third of restraining orders may be issued without an evidential finding of abuse or threats.44

Lack of Appeals. In theory, family court decisions can be appealed to higher courts, but because family courts are usually not "courts of record," cases must be re-tried at the next level, and as in other civil proceedings, the appealing party must bear the expense.45

Furthermore, federal courts do not exercise constitutional review over family law cases due to a rule known as the "domestic relations exception" established in the 1992 Supreme Court case of Ankenbrandt v. Richards. This decision excluded from federal courts cases "involving divorce, alimony and child custody."46 This blanket rule has been vigorously enforced, denying access to federal courts for parents questioning the constitutionality of state laws and procedures regarding child custody, support levels and visitation rights of noncustodial parents.

Thus a parent has fewer constitutional protections with respect to his child than he does with respect to his home or car. If the judge takes property, the parent is entitled to due process of law. But not when the parent's child is taken.

"A parent has more constitutional rights with respect to his home than to his child."

Determination of Child Support. Child support levels once were set individually in each case, but the Family Support Act of 1988 and U.S. Department of Health and Human Services regulations required the states to implement guidelines for determining child support levels that took away much of judges' discretion. The guidelines were to be specific enough to give judges a formula to compute the amount owed. Since then all 50 states have adopted guidelines based on one of three models. About a dozen states use "percent of obligor income" guidelines that base awards on a fixed percentage of the noncustodial parent's income but do not consider the custodial parent's income. About 35 states use "income shares" guidelines which base obligations on a percentage of both parents' income that is supposed to reflect spending on a child in an intact family. The rest of the states use a hybrid of the two.

State guidelines typically specify the basic support level as a percentage of the noncustodial parent's adjusted income - or earnings capacity based on career, education and work experience, rather than actual current income. For example, basic child support in the state of Alaska as a portion of the noncustodial parent's income is 20 percent for one child, 27 percent for two children, 33 percent for three children, and an extra 3 percent for each additional child.47 Guidelines usually require additional payments for health insurance premiums or child care. For example, in Virginia, a state that uses income shares, court documents show that, with an add-on for day care, a noncustodial parent with two children earning $38,000 annually must pay somewhat over 50 percent of net pay to a custodial parent earning $28,000, or $1,137.50 a month plus health care costs.48

Neither the percent of obligator's income nor income shares guidelines take into account child-rearing expenses incurred by the noncustodial parent, significantly understating that parent's support of the child.49 A 1985 national study projected that the application of these models to existing support cases would have increased the average order by 2.5 times.50 Economist Mark Rogers says that use of the guidelines significantly increased noncustodial parents' obligations. However, they are not based on studies of what it costs to rear a child. According to Rogers, under these guidelines:

  • The noncustodial parent may pay more than the costs of child rearing.
  • In some states, the guidelines require the noncustodial parent to pay the same percentage of pre-tax income whether he is a minimum wage worker or middle income earner; thus minimum wage workers are pushed below the poverty line.
  • With add-ons for such things as medical insurance, the percentage of net income paid in child support may be as high as 38 percent or more for a worker earning $36,000 a year. (In fact, it may be well above this.)
  • These presumptive awards also ignore the custodial parent's income, cost-offsetting child-related tax benefits the custodial parent may receive and the noncustodial parent's direct support of the child when in the noncustodial parent's care.

"A noncustodial parent can pay as much as half of his net income in child support."

Due to these factors, a custodial parent with a significantly lower gross income may have a higher standard of living than the noncustodial parent who has a higher gross income, after taxes and child support transfers. These outcomes conflict with the legal principle that both parents have an equal duty (proportional to income) to support the child.51

The income shares guidelines were originally formulated in the 1980s by Robert Williams, a consultant to the U.S. Department of Health and Human Services. Williams himself has stated that "there is no consensus among economists on the most valid theoretical model to use in deriving estimates of child-rearing expenditures" and that "use of alternative models yields widely divergent estimates of the percentages of parental income or consumption allocated to the children."52

Robert Williams is president of Policy Studies Incorporated (PSI), which has become the dominant firm in the child support enforcement business.53 Thus, as a bureaucrat he helped develop public policies that created the need for a child support enforcement industry. Once in the private sector, he was able to profit from the policies he helped create.

Figure VI - Child Support Collections for Welfare Clients

Reviewing State Guidelines. Periodic review of child support guidelines is a process controlled largely by the administrators, judges and attorneys who benefit from a system that creates high levels of obligations, leading to increases in unpaid child support and the need for enhanced collection efforts.54 For example, a 1999 Virginia commission that reviewed child support guidelines consisted of one part-time member representing fathers and 10 full-time lawyers, judges and child support enforcement agents.55 A commission of similar composition recently recommended a sharp increase in child support levels.56 Of the 11 Georgia commission members in 1998, District Attorney Williams C. Akins notes, "two were members of the judiciary, two represented custodial parent advocacy groups, four were either present or former child support enforcement personnel and two were state legislators."57

Many noncustodial parents simply may not be able to pay excessive child support, particularly during periods of unemployment. Child support orders may be modified when the noncustodial parent's income falls significantly - typically, by 15 percent or more - but this is not always easy in practice and does not apply to past arrearages.58 Elaine Sorensen of the Urban Institute writes that "Of the 1 million poor nonresident fathers, a quarter pay more than 50 percent of their gross income in support...."59 Unrealistically high child support orders may explain why an increasing amount of child support awards remain unpaid, despite increased collection efforts.

Uncollected Child Support. Child support enforcement is the largest component of government affecting fatherhood. Nationally, there were 17.4 million child support cases in fiscal year 2000. Enforcement involves nearly 60,000 agents throughout the United States - about 13 times the number in the Drug Enforcement Administration (DEA) worldwide. This does not include employees of the rapidly growing number of private enforcement companies.

Although increased resources are being devoted to enforcement, the amount of uncollected child support claimed by the Department of Health and Human Service (HHS) has grown. Spending on child support enforcement programs grew from just over $3 billion in 1996 to just over $4.5 billion in 2000.60 [See Figure IV.] According to HHS, the amount of unpaid child support rose steadily to almost $84 billion in 2000.61 [See Figure V.]

The rising cost of welfare was a specific reason for increased collection efforts under the Clinton administration. For example, states are given financial incentives to increase child support collections. Yet child support collections for clients of Temporary Assistance for Needy Families (TANF) remained steady at around $2.6 billion for the period 1997 through 2001, while non-TANF collections rose from about $10.5 billion to $16.4 billion.62 [See Figure VI.] Also, government figures do not capture cash child support payments by unmarried fathers made directly to mothers.63

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