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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Child Support Orders: A Perspective on Reform
Irwin Garfinkel Marygold S. Melli John G. Robertson

Directions for the Future: A Full-Fledged Child Support Assurance System?

Of all the proposals for reforming the nation's child support system, the most far-reaching is to add a Child Support Assurance (CSA) system to our menu of Social Security programs.57 Under this system, child support awards would be set by a nationally legislated formula based on a percentage of the noncustodial parent's income, and payments would be deducted from the absent parent's earnings, just like Social Security deductions. The federal government guarantees a minimum level of child support—an assured benefit—just like minimum benefits in old age and unemployment insurance.

The Family Support Act of 1988,11 by requiring states to utilize numerical guidelines and routine withholding of child support obligations, has taken the nation a long way toward a CSA system on the collection side. Adoption of a full-fledged Child Support Assurance system would take us even further by completing the shift from judicial discretion to administrative regularity, by shifting responsibility for administration from the judiciary to the Social Security Administration and the Internal Revenue Service, and by creating a single national formula for determining support obligations. In addition, a CSA system would establish a national assured child support benefit.

Of course, it is possible to adopt any component without the other two. Similarly, some components could be federal and others state based. For example, a federally funded assured child support benefit could be established, while child support collections remained a state responsibility. For this reason, we examine separately the desirability of each of the three components.

Discretion Revisited

Judicial discretion has not entirely disappeared from the child support system. Although the grounds for departures from the presumptive guidelines are narrow and departures must be justified in writing, based on data from Wisconsin, where presumptive guidelines were instituted on the state's own initiative prior to federal requirements, departures from the guideline are common and written justifications are rare.58 Furthermore, one national expert asserts that there is legal ambiguity with respect to whether the guidelines must be applied to noncontested cases.51 It appears to him, and to us, that in practice many courts do not require noncontested cases to conform to the guidelines and that bargaining down from the guidelines is common.59

Should judicial discretion be eliminated entirely from the process of determining child support awards? When a public benefit such as welfare or an assured child support benefit is involved, the case for a legislative determination of the amount of child support to be paid is quite clear. The lower the amount of child support ordered, the greater the cost to the public of the government benefit. Determining how to apportion the costs of child rearing between parents and the public is a policy issue more appropriately decided by the legislative than the judicial branch of government.

But, what is the case for public intervention when there is no public benefit involved and the parents agree to an award that differs from the guideline? Many would argue that the presumption should be that the parents are the best judges of their children's interest and that insistence upon a uniform formula constitutes undue government interference. There are two responses. First, the proportion of families that receive a public benefit is much larger than most people imagine. During the past 20 years, the proportion of single mothers receiving welfare has varied between 40% and 60%.60 Enacting an assured benefit available to all custodial parents irrespective of income would increase the percentage further. Second, even in situations where there is no possibility of a public subsidy, many, including the authors, believe that the children's interests are better protected by a legislated standard of support than by bargaining between the parents.61

If child support obligations are to be determined by a simple numerical formula, the rationale for continuing to have courts administer the child support system is weak. Courts are designed to resolve disputes. The executive branch of government is more suited to the routine tasks of verifying eligibility, calculating obligations and entitlement based on numerical formulas, and collecting obligations and distributing payments. Indeed, the Social Security Administration and the Internal Revenue Service have proven track records in these areas. Massachusetts has given responsibility for collecting child support to the revenue department. At this point, however, there is no administrative blueprint for how a nationally administered system would work. Furthermore, courts may be required to continue to play some role, particularly in the establishment of legal entitlement to support.

Issues Regarding the Implementation of a National Child Support Guideline

Several congressional bills propose a national standard. Because of the lack of consensus among commission members, the U.S. Commission on Interstate Child Support recommended congressional appointment of a new national commission to study the desirability of a national child support guideline.62 The commission has summarized the arguments for and against a national guideline.

The most important argument against a national guideline is part of the more general argument for decentralization. The more decentralized are government functions, the greater is the dispersal of power and the opportunity for citizens to participate in shaping policy. Opponents also question the wisdom of federalizing child support guidelines while leaving other aspects of family law that affect divorce up to the states and of establishing a single federal model before we have had a chance to evaluate the experience with different state guidelines.

Proponents of a national guideline note that, without one, identical cases are treated differently in different states, creating inequities and forum shopping (seeking the best jurisdiction in which to obtain a divorce). Moreover, differences in state guidelines inhibit interstate enforcement because of the question of which state's guideline to apply. In view of the fact that nearly a third of child support enforcement cases are interstate, these are serious problems. A national guideline would enhance interstate equity and facilitate interstate enforcement. Finally, adoption of a national assured child support benefit would strengthen the argument for a national guideline. The cost of an assured benefit depends upon the amount of private support ordered and collected. Congress will be reluctant to assume responsibility for paying for the costs of the assured benefit with no power to affect this critical determinant of the costs.

Issues Regarding the Implementation of an Assured Child Support Benefit

An assured child support benefit is a government guarantee of a minimum amount of child support to those legally entitled to receive private support. For example, if the assured benefit were $200 per month and the noncustodial parent paid only $150, the government would make up the difference. Entitlement to the assured benefit would not depend upon the income of the custodial parent, but only upon legal entitlement to private child support. An assured child support benefit would increase economic security, reduce dependence on welfare, and increase paternity establishment. Although most noncustodial fathers can afford to pay substantially more private support, many have low and irregular incomes. No matter how successful we are in strengthening enforcement, private support payments for many poor children will continue to be low and irregular. The assured benefit would compensate by providing a steady, secure source of income for these children.

An assured benefit would reduce dependence on welfare because, unlike welfare, the assured benefit is not reduced as earnings increase. It complements rather than substitutes for work. Compared with increases in private support alone, an assured benefit would double the reduction in poverty and welfare dependence.63 Finally, because only children legally entitled to private child support would be eligible for an assured benefit, the benefit creates an incentive for mothers to establish paternity and secure child support awards.

The argument against an assured benefit is that it will extend the role of government, increase costs, and create some adverse incentives. On balance, these costs appear to us to be smaller than the benefits achieved. When immediate withholding is implemented nationwide and the government is receiving and disbursing all private child support payments, the extra administrative burden of guaranteeing a minimum monthly payment will be minimal. The collection side reforms strengthening paternity establishment and establishing numerical child support guidelines and routine income withholding involve much larger extensions of the role of government than the assured benefit.

Despite the fact that the assured benefit is not income tested, it is relatively cheap. This is so for two reasons. First, because men and women mate with people of similar socioeconomic backgrounds—what demographers call assortative mating—most of the expenditures of an assured benefit go to poor and near-poor families. Second, a large proportion of these families are already receiving welfare. Estimates indicate that an assured benefit of $2,000 per year for one child would cost between $1 billion and $2 billion.64 Finally, because the assured benefit makes the payment received by the custodial parent larger than the payment made by the noncustodial parent, it creates an incentive for the couple to live apart or to feign living apart. Yet, welfare creates a similar incentive, and research shows that the adverse effects of the incentive have been small.60,65

In 1984 and 1988 respectively, Congress authorized Wisconsin and New York to use federal funds that would otherwise have gone to AFDC to help finance state demonstrations of an assured child support benefit. Wisconsin failed to implement the demonstration because Wisconsin Gov. Tommy G. Thompson was opposed to it. In 1989, seven New York counties began conducting a limited version wherein initial eligibility was restricted to families with incomes low enough to qualify for welfare.66 The National Commission on Children and the U.S. Commission on Interstate Child Support endorsed federally funded state demonstrations of a full-fledged assured benefit, Sen. Bill Bradley (D-NJ) and Sen. John D. Rockefeller, IV (D-WV) have proposed such legislation, and in conjunction with Rep. Henry J. Hyde (R-IL), former Rep. Thomas J. Downey (D-NY) proposed a full-fledged national program.62,67