Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
The Traditional System, Its Shortcomings, and Remedial Federal Legislation
Child support, as a part of the family law system, is a province of the states. State laws establish the duty of noncustodial4 parents to pay child support but traditionally have left the details to local courts who have handled child support orders on an individual case basis with almost no legislative guidelines. In the past, statutes used very general language, such as the amount should be "just and reasonable." Lacking legislative guidance, courts developed rules that focused on two elements: the needs of the child, assessed on the basis of a budget submitted by the custodial parent; and the ability of the noncustodial parent to pay, assessed on the basis of that parent's living costs and available income. The results were highly individualized and offered little guidance for other cases. Consequently, there were great inequities in child support awards. Research showed that, between judges in the same court and even between cases decided by the same judge, noncustodial parents in similar circumstances were treated very differently.5
Equally important, the case-by-case system resulted in child support awards that were generally regarded as very inadequate. Although there are many poor noncustodial fathers, this is only part of the problem. Based on estimates of the incomes of noncustodial fathers and the share of income that should be devoted to child support according to the two most widely used child support guidelines (described below), in 1983 noncustodial fathers should have been paying between $25 and $32 billion in child support; in fact they owed only $10 billion and paid only $7 billion.6
The major impetus for change in the manner in which child support was set came from the system for public support for children in single-parent households—the Aid to Families with Dependent Children (AFDC) program. That program was established in 1935 as part of the Social Security Act to provide support for children whose primary supporting parent was absent from the home, in most instances because of death. It was assumed that AFDC would shrink as more and more children were protected by the survivor's benefits of Social Security. Instead, as divorce, separation, and births outside marriage grew, so did AFDC. In 1950, congressional concern about the cost of AFDC resulted in the first federal child support legislation.7 In 1975, Congress enacted the Child Support Enforcement program as Title IV-D of the Social Security Act.8 (For further description of this act, see the article by Roberts in this journal issue.)
Some researchers9 interested in welfare reform began studying the private child support system to determine why it was so inadequate and placed such a heavy burden on the public. One of the failures they identified was the inadequacy and inequity of child support awards. They advocated abandonment of the existing system of individualized assessment of awards. The proposal that emerged was the use of a general numerical formula that would be applicable to the great majority of cases. In 1984, Congress amended the federal Child Support Enforcement program (Title IV-D of the Social Security Act) to require the states, as a condition of receiving federal funds for their AFDC programs, to adopt nonbinding mathematical guidelines for setting child support.10 In 1988, the Family Support Act required that these mathematical formulas be used as rebuttable presumptions in all cases except where the court determined in writing or on the record11 in the child support proceeding that the departure was justified. In addition, child support agencies were required to perform systematic reviews of awards every three years for AFDC cases (unless it is not in the best interest of the child), and for all non-AFDC IV-D cases where either parent requests a review. (See Box 1.)
Despite a decade and a half of child support reform, some indicators suggest there has been little progress. In both 1978 and 1989, only 6 of 10 eligible mothers had child support awards.12 The proportion of awards paid increased only from 64% to 69%. Worst of all, the real value of child support awards declined by 22% between 1978 and 1985, from $3,680 to $2,877. By 1989, average awards increased to $3,293, still 10% lower than awards in 1978.
Do these trends indicate that the reforms were ineffectual or counter-productive? Previous research suggests that the answer to this question is no. Like Alice in Wonderland, the U.S. child support system has had to go faster just to stay in place.13 For example, while there was an improvement in paternity establishment and award rates for children born out of wedlock during the 1980s—from 1 in 10 to nearly 3 in 10—there was also an increase in the proportion of children in this high-risk group. In 1978, unmarried mothers accounted for only 19% of mothers potentially eligible for child support; by 1989, they constituted about 30% of the eligible population.12 Thus, part of the decline in the real value of awards was the result of a shift in the demographic composition of children potentially eligible for support. Even more important was the substantial increase in the earnings of divorced mothers during the past 20 years. Because most courts take the mother's earnings into account when setting child support awards, the increase in earnings led to a reduction in the value of the average awards.14