Child Support

views updated Jun 27 2018


A payment that a noncustodial parent makes as a contribution to the costs of raising her or his child.

In the mid-1990s, as never before, child support became a topic of urgent U.S. national discussion. The system that awards and enforces child support was declared inadequate by state and federal policy makers. Failures in the system were blamed for child poverty rates, long-term dependence on government assistance, and the "feminization of poverty." Courts drew criticism for awarding child support inconsistently and inequitably. These social and economic issues attracted both federal attention and reform efforts.

The need for child support payments usually arises when one parent does not have physical custody of his or her child, so that parent's income does not benefit the child on a daily basis. At times, neither parent has custody, and both may pay a third person who is caring for the child. When both of a child's parents have full custody (as when they are married to each other), and usually when they are divorced and share joint physical custody, the needs of the child are presumed met and child support is not an issue. As long as parents provide a safe level of care, the government does not control their contributions to their children.

In the United States in the early 2000s, nearly half of all marriages ended in divorce, and almost one-quarter of all children were born to unmarried parents. Most of the children who lived in single-parent families had a legal right to a child support order. Child support can be voluntary or court ordered and can be secured through a divorce decree or a separate action. Increasingly, support orders are issued by state agencies.

The legal duty to support a minor child belongs to both parents, even if the custodial parent is capable of caring for the child single-handedly. Support is awarded to provide for the child's basic needs and to allow the child to share in the standard of living of both parents. Although both mothers and fathers can be ordered to pay support, a 1994 study in Utah found that over a 20-year period, mothers were required to pay child support in fewer than one in five cases in which fathers received sole custody. A greater proportion of noncustodial fathers were ordered to pay support.

A petition for support is usually begun in a state court where the plaintiff (the parent seeking the order) resides. The Uniform Interstate Family Support Act of 1992, which was updated in 1996 and 2001 and which has been adopted in some form in the majority of states, provides that jurisdiction exists where the child or one of the parents resides. Before support can be awarded, parentage (called paternity in the case of fathers, maternity in the case of mothers) must be demonstrated. The would-be payer is entitled to blood tests, but in some states must pay for them. The 1993 federal budget bill (Omnibus Budget Reconciliation Act of 1993, 42 U.S.C.A. § 666[a][2]) required states to offer speedy means of establishing parentage, since parentage disputes can delay a valid child support award.

Determining Awards

Child support awards are made by each state's family court system. Most states require that they be based on the best interests of the child. In addition to determining support in contentious divorce cases, courts review stipulations (agreements) between parents and can overrule an agreement that does not adequately provide for children.

Often, courts feel pressure to balance children's needs with their parents' needs. Awards are based on the noncustodial parent's ability to pay and must allow the parent to remain self-supporting. Many associations of noncustodial parents emerged after the 1980s to express their belief that awards were burdensome to the payers, benefited only the custodial parent, or did not provide payers with enough in return. At the same time, more single parents with children slipped into poverty than had at any other point in the nation's history.

In the mid-1990s, no federal child support guideline existed, mainly because child support was historically a state-controlled issue. Most states had established their own guidelines in the quest for fair standards. About 15 states used the "percentage-of-income" guideline, which is based on the income of the noncustodial parent. Thirty states used the "income-shares" method, which is based on the income of both parents. It prorates the total support between the parents and calculates each contribution proportionally according to income. Several states used the elaborate Melson formula, which provides a basic subsistence level for each parent before determining the primary support needs of the children. This formula then awards a percentage of the remaining income so that the children share in the standard of living of each parent.

Even when guidelines are used, judges consider the facts of a case and other statutes. They can depart from the guidelines for considerations such as how property is divided, whether an arrearage (unpaid child support) exists, and what disparities in parents' incomes exist. In many states, judges must prove in writing that an exception to the guidelines serves the child's best interest.

In practice, courts are allowed to use many criteria in setting an award amount. Some judges consider the needs of subsequent children when obligors (payers) remarry and start new families. Some may adhere to the Uniform Parentage Act, which states that courts must take into consideration, among other things, the age of the child, the financial resources and earning ability of the child, and the value of services contributed by the custodial parent.

Investment income, unearned income, over-time, bonuses, income from a second job, gifts, and retirement pay may all be eligible income when calculating child support due, regardless of its tax status. Putative income (earning capacity) is used to calculate support in many states if it is suspected that the noncustodial parent is deliberately underemployed or unemployed. The court is allowed to credit social security benefits toward support, but this action is not automatic. Child support is not deductible from either parent's taxes, any more than are the provisions that married parents supply to their children. The children themselves qualify as household deductions, but only one parent may claim them.

Unless a state mandates that child support be awarded, the court can deny it. Courts have denied support in situations of split custody, in which each parent has custody of one or more children. With exceptions, the court usually does not award child support to a noncustodial parent during visitation. Support can be ordered for legally adopted children. It cannot be ordered for grandchildren who have not been legally adopted.

Consequences for Nonpayment

The consequences of not paying child support are inconsistently applied—a situation

many states want to remedy. A delinquent obligor may face contempt-of-court charges and civil penalties. Criminal sanctions can include a jail sentence or a fine, but these punishments are used sparingly and for repeat violations. Prosecution may proceed on a misdemeanor or felony level, depending on the circumstances. In addition, federal prosecution may occur for a parent who crosses a state line to avoid paying support.


In 1992 $27 billion in child support went uncollected. The U.S. department of health and human services has estimated that a substantial increase in child support collections could reduce the payments of Aid to Families with Dependent Children (AFDC) by 25 percent. The federal government created the AFDC program in 1935 to enable states to provide money and services to help poor children remain in their own, single-parent homes.

These observations were not lost on the 1994 Senate, which directed the justice department to "immediately address shortcomings in enforcement of the law [regarding child support]." Enforcement efforts are administered federally through the department's Office of Child Support Enforcement, but child support recovery units at the state level perform the daily task of securing payment.

The problems surrounding the collection of child support have provoked frustration and ingenuity in states throughout the nation. A major barrier to timely and regular collection is the large volume of child support orders that states are required to enforce monthly. One response has been to divert cases from the court system by empowering state agencies to enforce child support orders.

A primary means of collecting is wage withholding. This action requires that the employer of the obligor send a percentage of the obligor's paychecks to the state or county, which forwards it to the custodial parent. Where the custodial parent receives federal public assistance, income withholding is mandatory. garnishment is similar to withholding, but it is used when the obligor is about to receive a lump-sum payment.

Interception of the obligor's federal tax return is another enforcement tool. In the first seven years after implementing a pilot of this requirement, $1.8 billion was collected. As of the early 2000s federal law requires every state to have legislation for intercepting the tax returns of delinquent obligors and applying them to child support after a review.

Self-employed obligors, or those whose employment is unknown, pose a challenge to collection agencies. In their case, states may rely on the custodial parent's knowledge of the obligor's income and on tax returns to pursue enforcement.

If a parent who owes child support dies, the child support payments may be made from the deceased parent's estate, at least according to one court. In L. W. K. v. E. R. C., 735 N.E.2d 359 (Mass. 2000), in the Supreme Judicial Court of Massachusetts a father was required by a court to pay $100 per month in child support for his minor daughter until the daughter turned 18. The father subsequently disinherited the daughter in his will. He died five months after he executed the will. The court ruled that the child was entitled to receive child support payments from the father's estate until she turned 18.

Other enforcement methods include placing a lien on the obligor's property so that it cannot be sold without clearing the arrearage. At times, interest is added to unpaid child support in order to motivate the obligor to pay off this debt; in 1995, the default rate was nearly 50 percent on child support, compared with only 3 percent on car loans. Some states have taken the high-profile approach of publicly issuing controversial "Wanted" posters depicting delinquent obligors. Others have revoked state-issued fishing, hunting, and even driver's licenses as punishment for nonpayment.

Less common methods for securing child support owed are the seizure of government security bonds, collection of the full amount by the internal revenue service (this method was still under consideration in 1995), and seizure and sale of property or other forced payment. The effects of reporting delinquent obligors to credit bureaus are being studied.

Interstate orders (orders for support to be paid by a parent in a different state) pose additional problems for enforcement. Although three in ten child support cases are interstate, only 10 percent of the delinquent collections nationwide result from these cases. This circumstance has caused child support collection, usually considered a state function, to become an issue of national importance. Although most states have long-arm statutes enabling them to retain jurisdiction over obligors in other states, delays result when the laws are not uniform.

from. Failures to collect across state lines are due to heavy case backlogs, multiple and conflicting orders, lack of priority given to interstate cases

by the responding state, and an inability to locate the noncustodial parent.

The Uniform Interstate Family Support Act (UIFSA), which was developed in 1992, contains what is called the one order, one time rule, in which the initial state retains jurisdiction in order to prevent multiple orders. The act limits modifications and provides that they must occur in the child's home state. The model legislation also features direct income withholding, so that the state of origin can communicate directly with the obligor's employer in another state. It also requires that states that adopt the uniform law provide enforcement services to one another.

In October 1994, the U.S. Congress's Full Faith and Credit for Child Support Orders Act became effective (28 U.S.C.A. §§ 1 note, 1738B, 1738B note), enabling states to enforce and modify orders under certain circumstances.

Public Assistance

In 1991 the census bureau found that nearly half of all single-parent families headed by a woman live at the poverty level. A report on child support enforcement presented to the Senate in 1994 found that more than one-fifth of all U.S. children lived in poverty. As a result, in the 1990s, reliance on AFDC increased dramatically nationwide.

In recognition that many families require public welfare because a noncustodial parent does not contribute, Congress adopted Title IVD of the Social Security Act in 1975 (Social Services Amendments of 1974, Pub. L. No. 93–647, 88 Stat. 2337 [1975] [pertinent sections codified at 42 U.S.C.A. §§ 661–665 (1988)]). The legislation created the federal Office of Child Support Enforcement and required states to establish state child support offices. Under Title IV-D, services such as locating noncustodial parents, determining parentage, and establishing and enforcing support orders must be provided free to families that receive AFDC. In addition, these services must be provided at very low cost to custodial parents who do not receive AFDC. The federal government requires states to provide these services as a condition for receiving AFDC services.

In the 1990s, child support was sought as part of the regular intake procedure for unmarried parents who were requesting public assistance. To comply with federal funding requirements, most states require that an unmarried parent seeking AFDC identify the absent parent and cooperate in efforts to establish parentage and secure child support.

Modifying Awards

A family's postdivorce economic situation will likely be different from its predivorce economic situation. In most cases, divorced parents set up separate households whereas they lived together in one home while married. Because the same resources cannot support two households at the same level as a single household, awards are often considered inadequate by the custodial parent and burdensome by the obligor.

An existing support order may be modified if the child's needs or the paying parent's resources change. Back child support can be ordered if a modification or other order delays payment.

Remarriage or cohabitation does not necessarily affect child support, although if demonstrated to be a permanent change in circumstances, it could become a basis for modification. A child's adoption releases the obligor from future payments but does not cancel an arrearage.

Some orders are automatically modified when certain conditions are met. For example, an escalation clause allows the child support amount to increase as the obligor's income increases. A cost-of-living-adjustment (commonly referred to as COLA) clause permits modification without a hearing when there is an increase in income coupled with inflation. The purpose of these clauses is to keep cases out of court. Courts usually do not approve automatic increases that are not based on an increase in income.

To ensure that orders remain adequate and equitable, Congress began in 1993 to require that states review and, if necessary, adjust child support orders at least once every three years if the custodial parent receives federal public assistance. This arrangement differs from state modification standards that are based on changes in circumstances.

bankruptcy does not end a child support obligation. A child's move, if authorized, does not end support. And an obligor's estate may be required to continue support payments after the obligor's death. In most cases, the obligation ends only when the child reaches the age of majority, marries, or can support herself or himself. In some states, the court may terminate or suspend child support as a way to enforce a visitation order. The difficulty with this modification is that the child may suffer as a result.

Other Awards

Financial awards for higher education are sometimes included in an order to pay support but are not meant to substitute for primary support. Education awards are common in families in which children are expected and able to complete postsecondary coursework. Courts have denied awards for tuition, for lessons, and for other education-related expenses when those expenses are deemed unnecessary.

A responsibility to provide health care is occasionally clarified in orders for support, especially when one or both parents have access to an employer-provided health plan. In the early 1990s, a total of 25 million children had no employer-provided insurance, and 8.4 million had no coverage at all. Nevertheless, also in the early 1990s, a majority of support orders lacked provisions regarding health insurance.

An obligor may be required to maintain a life insurance policy naming the child or guardian as beneficiary.

further readings

Bahr, Stephen J., et al. "Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference?" Family Law Quarterly (summer).

Calhoun, Janelle T. 1995. "Interstate Child Support Enforcement System: Juggernaut of Bureaucracy." Mercer Law Review (winter).

Haynes, Margaret Campbell. 1994. "Child Support and the Courts in the Year 2000." American Journal of Trial Advocacy (spring).

Mason, Mary Ann. 2000. The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It. New York: Basic Books.

Ramsey, Sarah H., and Douglas E. Abrams. 2003. Children and the Law in a Nutshell. St. Paul, Minn.: West.

Sampson, John J., and Barry J. Brooks. 2002. "Uniform Inter-state Family Support Act (2001) With Prefatory Note and Comments." Family Law Quarterly 36 (fall): 329–447.

Solomon-Fears, Carmen. 2003. Paternity Establishment: Child Support and Beyond. New York: Novinka Books.

U.S. Census Bureau. Custodial Mothers and Fathers and Their Child Support. Washington, D.C.: U.S. Government Printing Office.

U.S. Dept. of Health and Human Services. 2000. Income Withholding for Child Support. Washington, D.C.: U.S. Dept. of Health and Human Services, Office of Child Support Enforcement

Zmijewski, Daniel Robert. 2003. "The Child Support Recovery Act and Its Constitutionality After U.S. v. Morrison." The Kansas Journal of Law & Public Policy 12 (winter): 289–309.


Child Custody; Divorce; Family Law; Parent and Child; Welfare.

Child Support

views updated May 23 2018

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