Child Support: The Next Frontier


There has been a revolution in child support law in the last half-century, fueled by escalating numbers of divorces and children born to unmarried parents. This collection of essays examines the state of child support policy at the close of the twentieth century and the end of an era of far-reaching reform of the child support system.

Reforms have moved the child support system from one of minimal effort, based on the assumption that children in single parent households would ...

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There has been a revolution in child support law in the last half-century, fueled by escalating numbers of divorces and children born to unmarried parents. This collection of essays examines the state of child support policy at the close of the twentieth century and the end of an era of far-reaching reform of the child support system.

Reforms have moved the child support system from one of minimal effort, based on the assumption that children in single parent households would be supported by their custodial parents or by government welfare, to a formula-based system for calculating child support and an aggressive enforcement program to collect that support from the noncustodial parent.

The essays range from a review of child support history, with a focus on the changing mores of parental responsibility, to empirical studies of whether increased establishment of paternity and child support enforcement results in more father-child contacts, to how child support affects fathers and whether the support obligation impoverishes noncustodial fathers. The essays explore the failure of the current child support reforms to reduce child poverty, consider the need to study how to determine what is a "fair amount" of child support, and debate proposals to follow the example of a number of other industrialized nations and provide more generous public benefits for poor children.

This book will be of interest to public policy makers and professionals--lawyers, legal scholars, social workers, and administrators--who work in and study the child support system.

Contributors are June R. Carbone, John Eekelaar, Martha A. Fineman, Irwin Garfinkel, Marsha Garrison, Paul K. Legler, Mavis Maclean, Marygold S. Melli, Daniel R. Meyer, J. Thomas Oldham, Allen M. Parkman, Judith A. Seltzer, and Andrea Warman.

J. Thomas Oldham is John H. Freeman Professor Law, University of Houston Law School. Marygold S. Melli is Voss-Bascom Professor of Law Emerita, University of Wisconsin-Madison Law School.

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Product Details

  • ISBN-13: 9780472110575
  • Publisher: University of Michigan Press
  • Publication date: 4/27/2000
  • Pages: 248
  • Product dimensions: 6.27 (w) x 9.33 (h) x 0.99 (d)

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Child Support: The Next Frontier

By J. Thomas Oldham

University of Michigan Press

Copyright © 2000 J. Thomas Oldham
All right reserved.

ISBN: 0472110578

Child Support Comes of Age: An Introduction to the Law of Child Support

June Carbone

Child support has come of age. Once the stepchild of family law, child support has moved onto center stage in the modern effort to define and enforce family obligation. As congressionally mandated guidelines and strengthened state enforcement finally take hold, the issue is whether child support will mature into its new role or wither in the spotlight. The critics are growing in number and stature, and the success of the long-heralded reforms will ultimately depend not on the efficacy of collection efforts but on their ability to prompt a new ethic of family responsibility.

The prominence of child support is a critical element in a larger shift from the husband-wife relationship to parent-child ties as the defining element of family obligation. In an era in which nearly half of marriages end in divorce, one-third of American births are nonmarital, and 60 percent of American children spend part of their childhood in single-parent families, parenthood has replaced marriage as the more permanent part of family life, and the law has attempted to shift financial responsibility accordingly (Eekelaar 1991:90; Wong 1993; Beller and Graham 1993:2). This legal shift is problematic at least in part because it proceeds from a public-policy consensus on the need for greater financial contributions to children without clearly addressing the relationship between fathers and mothers necessary to bring about such contributions. Reform supporters, an otherwise unlikely alliance of women's groups committed to greater equality and conservatives eager to protect the public fisc, agree only on a starting point-the principle that all parents should support their children. The almost universal support for the governing principle, however, begs the difficult questions of implementation: How does "natural" obligation translate into dollar amounts? Is it independent of the parents' relationship to each other? Of the circumstances of the child's conception and birth? Of obligation toward other children? Of ideas of equality and fairness between the parents?

Underlying these questions is the larger shift away from marriage as the defining element of family obligation. The older precedents in which child support has historically been rooted grew out of a conception of family centered on marriage. Older law drew clear distinctions between marital and nonmarital children, premised parental rights and responsibilities on the marital relationship, and subordinated parent-child issues to spousal obligations in the divorce context and public obligations in disputes involving unmarried parents (Fineman 1995). Modern child support practice, in contrast, erases the distinctions between marital and nonmarital births and treats parent-child ties as more lasting than spousal ones and independent of the relationship between mother and father. The most serious opposition to child support enforcement challenges the fairness of these results. Should a father with no more than a casual relationship with a mother and no say in her decision to bear and raise the child be charged with support on the same terms as a husband divorcing after a lengthy marriage? Should noncustodial parents who would have preferred to stay married and preferred sole or a greater degree of shared custody be charged with child support amounts that will significantly better their former spouses' standards of living? Should involved mothers who cannot support children on their own and consequently agree to fathers' custody claims be charged with child support in the same amount as noncustodial parents who spend less time with their children?

Existing child support enforcement proceeds from pragmatic considerations about children's need for financial support and the difficulties of individualized determinations. Yet the success of the new guidelines will also depend on their perceived fairness. This chapter examines the changing mores attending pregnancy, child rearing, and support in an effort to consider these issues and concludes that the guidelines are likely to be more successful in forging new norms for the middle class than in alleviating child poverty.

Child Support: The New Kid on the Block

Much of the tension between public policy and private norms arises because child-support enforcement takes place within the interstices of other forms of family obligation. Marriage has been the preferred source of provision for children, and support orders have historically represented the failure of other societal institutions to link effectively childbearing and marriage. As such, child support often constitutes more of a penalty for the violation of societal norms than a direct expression of parental responsibility for children.

In Anglo-American law, the first prominent child support enforcement involved the combination of rising "bastardy" rates and the availability of poor law relief in England centuries ago (Mason 1994:25; Stone 1979:382-404). English ratepayers, much like their modern American counterparts, objected to paying for the support of children they viewed as the product of irresponsible behavior. Society brought considerable pressure to bear on young women to name the fathers of their children and on young men to marry the mothers of their children, pay support, or face imprisonment. Marriage was the preferred solution, and support orders were designed more to offset public expenditures than to provide adequately for children.

Nonetheless, as Lawrence Stone observes, the connections between law enforcement and customary morality were not always straightforward (Stone 1979). The conventional morality of the time would have condemned nonmarital births both before and after the eighteenth-century increase in child support enforcement. In the earlier period, however, public sanction punished fornication and bastardy more directly-use of the whipping post and the pillory were not uncommon (Mason 1994:25) and community disapproval encouraged men to marry the mothers of their children; if such was not the case, it encouraged women to hide, kill, or abandon their improvident offspring. As community controls on non-marital sexuality relaxed, law enforcement shifted from physical to financial penalties. Direct punishment of fornication became less common, with the community interest "limited to ensuring that it was the father who paid for the support of the bastard child rather than the parish poor rate" (Stone 1979:398). Nevertheless, the purpose of the sanctions was to deter illegitimacy, increase the woman's leverage in securing a betrothal, and spare the public treasury, not to provide funds for the mother to raise the child on her own.

In similar fashion, postmarital child support became important only with rising rates of separation and divorce. As long as divorce was rare, the courts refused to intervene, believing support in such contexts unnecessary or, to the extent it would undermine patriarchal authority, undesirable (Scheule 1988-89). Even with the initial nineteenth-century increases in divorce, child support took a backseat to other developments. Divorce, like illegitimacy, was a misfortune to be deterred, and the primary element in the financial allocation was assignment of responsibility for the breakup. Through the 1960s, divorce was available only if one-and only one-of the parties was at fault: that is, if it could be said that one party had so flouted the obligations of the marriage that the innocent party should be freed from the bonds of a union that had for all intents and purposes already ended. Within such a framework, the guilty party was responsible for those left behind. In practical terms, an innocent wife could demand (although not necessarily get) support in accordance with the standard of living enjoyed during the marriage, and an innocent husband could expect to emerge from the marriage with his resources intact (Carbone and Brinig 1991).

Child support was an incidental part of this framework. Although alimony, when ordered, might include an amount allocable to the expense of children, separate child support orders were rare, with Chancellor Kent observing in 1826 that the "obligation of parental duty is so well secured by the strength of natural affection that it seldom requires to be enforced by human laws" (Mason 1994:94). Into the 1980s, no more than half of divorcing couples had child support orders to enforce (Katz 1994). When Progressive-era legislation criminalized paternal failure to support children, the issue arose of whether fathers with no outstanding child support orders were off the hook. The majority concluded that parents had a duty of support even in the absence of a decree, but California courts agreed with the minority: "When a parent is deprived of the custody of his child, and therefore of its services and earnings, he is no longer liable for its support and education. Even in jurisdictions in which the noncustodial parent's child support obligation was firmly established, Irwin Garfinkel and Marygold S. Melli (1990:163) report that "the courts operated on the premise that nonresident parents were entitled to spend their money as they saw fit, with the child receiving some of what was left.

The net effect of this system was to reinforce marriage rather than to finance child rearing in cases of marital instability. The "honorable" obligation for sexually active people was to get married and stay married for the good of the children. The financial provisions the state enforced flowed from the duty to marry and the consequences of breach of the spouses' responsibilities to each other (Scheule 1988-89:832; Harris, Waldrop, and Waldrop 1990:689).

No-Fault Divorce: Child Support's Rocky Adolescence, Part I

No-fault divorce, which swept through the fifty American states in the 1970s and 1980s, proceeded from two principles: first, the idea that where two spouses both wished to end their union, the law should not forbid it, whether or not either spouse had engaged in conduct that could be labeled fault; second, the conviction that the courts could not readily determine fault where the parties failed to agree. While the new legislation varied (Kay 1987), the advent of no-fault divorces effectively rendered unenforceable the promise to remain married for a lifetime and remade the basis for financial allocations at divorce.

The Uniform Marriage and Divorce Act (UMDA), reflecting the no-fault reforms, embraced the principle of the clean break. The goal of divorce settlements in the new era was to end marriages as amicably as possible, with a minimum of recrimination for misconduct during the marriage and no continuing relationship between the spouses. Property division was accordingly preferred to alimony as the primary element in the financial distribution, and spousal support, if awarded at all, was designed to encourage the parties' financial independence. "Rehabilitative alimony," in the form of short-term transitional payments, replaced long-term support, and the custodial parent's child-care responsibilities were not to be a factor in the amount of spousal support. While the courts have since reversed some of the early decisions to insure greater support for long-term homemakers, spousal support continues to be awarded in less than a fifth of all divorces and rarely lasts long enough to be a significant factor in raising small children (Krauskopf 1988; Carbone 1994). The UMDA, at the same time it embraced a clean break between the adults, recognized child support as the remaining obligation from the marriage. Provision for child support, unlike spousal support, was to take into account the children's impact on the custodial parent's earning capacity, and child support was presumed appropriate in all cases involving children at the same time that spousal support was not. The combination of the small amounts of property available to most divorcing couples, the diminishing role of alimony, and the concept of the clean break left child support as the most prominent surviving obligation of the marriage (Katz 1994:52; Teachman and Paasch 1994).

AFDC: Child Support's Rocky Adolescence, Part II

While public assistance in various forms is centuries old, aid that permits single parents to raise children on their own has been problematic. In the United States, by the beginning of the twentieth century, most states had some form of aid for dependent children, but, in all but a few states, non-marital children were ineligible for aid, and mothers whose husbands abandoned them were suspect. The preferred solution to both problems was to bring the fathers to account for their offenses, and forty-six states passed separate laws criminalizing desertion and nonsupport (Mason 1994:95). The results for single mothers were nonetheless grim. In Boston in the early part of the century, only 13 percent of identifiable fathers were brought to court, and only 7 percent were ordered to pay anything (Mason 1994:99). Within one year of their birth, three-fifths of the nonmarital children born in Boston in 1914 would be wards of the state. In Minnesota, a Progressive-era model of strict child support enforcement, only 35 percent of unwed mothers in a 1921 study still had their children at two years of age (Mason 1994:100).

In 1935 Congress federalized provision for poor children with the adoption of Aid to Dependent Children (ADC, later Aid to Families with Dependent Children or AFDC) as part of the depression-era Social Security system. Congress envisioned the program as a temporary federal assumption of state efforts to provide for children whose fathers had died, and it permitted each state to impose "such other eligibility requirements-as to means, moral character, etc.-it sees fit" (L. Williams 1992:723n. 33; Gordon 1994). By the 1960s, however, the federal agency charged with administration of the program disapproved of barriers to aid based on illegitimacy alone, and the most common remaining restrictions focused on the presence of a "man in the house" (detected through unannounced midnight home visits) whose income would be deemed available to the recipient family (L. Williams 1992:723). The U.S. Supreme Court invalidated these provisions in 1968, holding that

Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC. . . . [I]t is simply inconceivable, as HEW has recognized, that [any state] is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children.

The Court further concluded that a state could deem a person's income available to the children in the household only when that person had a legal duty of support, not on the basis solely of a relationship with the mother. Mary Ann Mason observes that with these changes, "for the first time in American history poverty alone was not an accepted condition for removing children from their parents, no matter what their marital status or with whom they chose to live" (1994:149).

With relaxation of the barriers to assistance came renewed congressional efforts to secure financial contributions from absent fathers deemed responsible for their children's demands on the public purse. By 1975 Congress had established the Office of Child Support Enforcement (now located within the Department of Health and Human Services). AFDC applicants were required to assign their rights to uncollected child support to the state and to cooperate in establishing paternity, locating absent parents, obtaining support judgments, and securing payments. To keep their AFDC funding, the states established enforcement agencies operating in accordance with federal standards (Krause 1989; Roberts 1994). While the early efforts were not always effective and local agencies sometimes spent more than they collected, the modern commitment to child support enforcement, much like its historical predecessors, started with the desire to cut public support.

Child Support Comes of Age: The Parental Obligation to Support Children in Accordance with Income

By the 1990s, the separate strands of child support enforcement-concern for the casualties of divorce and the demands children placed on the public fisc-had come together. Numerous studies documented the declining well-being of American children and attributed a substantial part of the result to the growing numbers of single-parent families and their straitened economic circumstances (Furstenberg, Sherwood, and Sullivan 1992; Hernandez 1993). Other studies showed that child support awards were low compared both to the actual costs of raising children and to the ability of fathers to pay and that award amounts stayed low throughout a decade of legislative changes intended to strengthen child support enforcement (Beller and Graham 1993; Maccoby and Mnookin 1992; Garfinkel, Melli, and Robertson 1994). At a time when American divorce rates had plateaued at world highs-with no viable movement to restrict divorce- and when nonmarital births continued to climb, increased child support was the one response that commanded nearly universal support.

Although advocates for the poor expressed reservations about child support enforcement in the AFDC context (Krause 1989), child support as a partial solution to the problems of single-parent families was uncontroversial because it did not appear to break new ground. That parents should support their children was axiomatic, and that there was a legal obligation to do so, notwithstanding the historical marginality of the obligation, was well established. The problems were the seemingly prosaic ones of amount and collection. To deal with these issues, the Family Support Act of 1988 required that each state (1) develop child support guidelines for determining the amount of the award; (2) implement automatic wage withholding without waiting for the noncustodial parent to default on payments; and (3) operate an approved computerized system for tracking and monitoring support payments (Garfinkel, Melli, and Robertson 1994:86).

The states proceeded pragmatically. In setting child support guidelines, states sought to increase the amount of the awards, their consistency and certainty, and the efficiency of the process (Pirog-Good 1993). Earlier cases had left child support to the discretion of the court, with the amount to be determined in accordance with the child's needs and the noncustodial parent's ability to pay. As a starting point for the new guidelines, however, the concept of need was problematic. First, any precise calculation of need, if defined in terms of basic expenditures on children, was likely to require a complicated assessment of individual budgets. Second, need would inevitably vary to some degree with income (Garfinkel and Melli 1990:164; L'Heureux-Dube 1994). Guideline drafters therefore sought not only to attend to children's needs in some minimal sense but also to ensure that the child enjoyed support commensurate with the parents' income.


Excerpted from Child Support: The Next Frontier by J. Thomas Oldham Copyright © 2000 by J. Thomas Oldham. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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