Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
The Child Support Enforcement System
Child support enforcement is part of domestic relations law. Historically, domestic relations law has been viewed as the exclusive province of the states.15 As the Supreme Court stated in Haddock v. Haddock, 201 U.S. 562, 575 1905: "No one denies that the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.... Besides, it must be conceded that the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Indeed, as late as 1975, the Supreme Court was maintaining that "....domestic relations is an area that has long been regarded as a virtually exclusive province of the states."16 The result is that 54 different legal systems operate within one country, including the states, territories, commonwealths, and the District of Columbia. While each state has its own variations, a custodial parent seeking child support must usually pursue the steps described below.Steps to Receiving Child Support
Identify the Noncustodial Parent
The first step is to identify the noncustodial parent. If the parents were married, doing so is usually not a problem.17 If the parents were not married, a paternity proceeding has traditionally been required if the noncustodial parent is the alleged father. Paternity proceedings can be very complicated. All parties must submit to genetic tests, the tests must be analyzed, and the results reported. Even if the test results indicate a high probability of paternity, the alleged father may dispute the results and call expert witnesses. In many jurisdictions, he can ask for a jury trial. The mother will have to produce evidence in addition to the test results. The father's attorney may ask explicit and detailed questions about her sexual relations with other men prior to, and around the time of, conception. In addition, some states have antifornication laws and statutory rape laws. Thus, the civil paternity proceedings can give rise to a later criminal action against the father.18 The threat of possible criminal charges makes men reluctant to admit paternity, especially when the mother is a minor.
Locate the Noncustodial Parent
Whether the custodial parent seeks paternity and a support order or just a support order because paternity is not at issue, the proceeding can be brought only in a court that has jurisdiction over the noncustodial parent. Thus, the residence or business address of the responsible parent must be known because the courts of a state generally have jurisdiction only over a person who lives, owns property, or derives income in that state. The one exception is when a noncustodial parent who does not live, work, or own property in the state nonetheless has enough connection to the state to make it fair for the courts of that state to act. This is called long-arm jurisdiction. For example, if a man and a woman conceived a child in the District of Columbia, the man then left and returned to his home in Massachusetts, and the woman stayed in the District and gave birth there, a District of Columbia court might exercise long-arm jurisdiction over the Massachusetts father in a paternity case.
Serve the Noncustodial Parent with Legal Papers
The noncustodial parent's address or workplace must be known so that a sheriff or process server can deliver the legal papers. Some states (for example, Massachusetts) allow service by registered mail, but this practice is uncommon for service of the initial papers.
Schedule a Hearing
Scheduling a hearing can be a major cause of delay because of crowded court dockets. For example, a recent survey of custodial mothers in four different states (Georgia, New York, Ohio, and Oregon) found that, of those who eventually obtained an order, 40% waited more than six months after initiating their case before obtaining the order.19
Child support obligations are based on the financial circumstances of the parents. Information about the parents' income, assets, earnings potential, and the like must be obtained. In addition, information about health insurance availability and cost must be uncovered. Although federal regulations now require that each state's child support guideline consider the availability of health insurance and apportion health care costs, in 1989 the U.S. Bureau of the Census reported that 60% of all support orders lacked provisions regarding health insurance.8 In addition, it is estimated that the total number of uninsured children in single-parent households approaches 8 million.20 In many states, data about child care costs and any special needs of the child are also factored into the support amount. (For a more detailed description, see the article by Garfinkel in this journal issue.) A noncustodial parent may not willingly supply this information or provide accurate information to the other parent. If the noncustodial parent is uncooperative, the custodial parent may need to take depositions and issue subpoenas for records.
Appear at the Hearing
Both parties must appear at the hearing. If one party does not appear, the judge will frequently reschedule the hearing. Sometimes there are multiple reschedulings before the noncustodial parent finally appears or the court is willing to enter a default order based on failure to appear.
Enter the Order
At some point, a decision is made, payment is ordered, and that order is entered in the record. Depending on the state, the money goes to a court, a government registry, a state agency, or the custodial parent. In some states (for example, Ohio) all payments must first go through a governmental agency. In other states (for example, California) the custodial parent can choose to receive payment directly if he or she is not using the services of the state child support enforcement agency. If the payment is made to a court, central registry, or state agency, the collecting entity will record payment and disburse the money. If the custodial parent receives the money directly, there will be no formal record of payment.Possible Additional Steps
As long as payment is voluntarily made, no further steps are required. When payment is not made, the noncustodial parent must be relocated and notified of the alleged default. Depending on the remedy to be used, the defaulter may have to be personally served and brought back into court. A hearing will have to be scheduled. If payment records exist, proving the amount of arrears should be straightforward. If there are no records, obtaining relief can be difficult.
In short, to receive child support, the custodial parent must usually hire a lawyer, finance the process for locating the absent parent, and pay filing fees, as well as fees for service of process and court costs. If paternity needs to be established, costs of genetic testing will also have to be borne. Even if she proceeds without a lawyer (that is, pro se) the fees and costs will have to be paid out of pocket. In many states custodial parents are discouraged or forbidden from acting pro se. Moreover, if payment is not voluntarily made, the custodial parent must bear a second round of attorney's fees and/or costs.Problems with the Existing System
The existing child support enforcement system works best for the affluent and well educated. For mothers of modest means or limited ability to cope with a sophisticated legal process, the system simply does not work.21 Even for the affluent and well educated, the system is slow, complicated, and costly.
The problems engendered by this complex and costly system received less public attention when the out-of-wedlock birth rate was low, divorce was infrequent, and divorce usually occurred when the children neared or reached the age of majority. Today, the birth rate outside marriage is nearly 30%, the divorce rate is nearly 40%, and about 60% of divorces involve young children.22 Slowly, America is responding to this reality.
In part, this response was triggered when many children in single-parent families headed by mothers began to enter the AFDC system. In the early 1970s, a study conducted by the RAND Corporation indicated that some of the growth in AFDC was related to mothers' inability to access child support. This led at least one powerful member of Congress to ask: "Should our welfare system be made to support the children whose father cavalierly abandons them—or chooses not to marry the mother in the first place? Is it fair to ask the American taxpayer—who works hard to support his own family and to carry his own burden—to carry the burden of the deserting father as well? Perhaps we cannot stop the father from abandoning his children, but we can certainly improve the system by obtaining child support from him and thereby place the burden of caring for his children on his own shoulders where it belongs. We can—and we must—take the financial reward out of desertions."23Efforts to Improve the System
In 1975, Congress enacted Title IV-D of the Social Security Act.24 This law requires every state with an AFDC program to also have a state agency to help parents obtain child support. These public agencies are required to assist in locating absent parents, establishing paternity, obtaining and modifying support orders, and enforcing those orders.25
The services of state IV-D agencies are free to recipients of AFDC and Medicaid.26 In fact, the law requires that these families use IV-D services unless they have "good cause" for not pursuing child support.27 The services of the state IV-D agencies are also available to mothers who are not receiving AFDC or Medicaid. These mothers apply for services and may pay a small application fee. They may also pay nominal fees for other services.28 In this article, the cases involving AFDC and Medicaid families as well as cases where the custodial parent has applied for services will be referred to as "IV-D cases."
The new public system solved one of the major problems faced by lower-income custodial parents: it gave them access to services at little or no cost. In the early years, the federal government paid 75% of the state IV-D agency's expenses for providing these services. More recently, the federal government has paid 66% of the costs of the basic services and 90% of the costs related to genetic testing for paternity establishment and 90% for computerization.29 Unlimited funding is available to states willing and able to put up the 34% (or 10%) state match required to obtain these federal funds. Unfortunately, few states are willing to take advantage of the generous funding. From the beginning, public programs have been understaffed and underfunded. For example, in 1990, nationwide there were on average 345 cases in the system per full-time worker.30 In many states, case loads exceed 1,000 per worker.
In addition, the 1975 law failed to address the need to streamline the processes for establishing paternity and obtaining support orders. In many states (for example, Tennessee) unless a paternity action was brought within one or two years of the baby's birth, paternity could not be established. Many states (for example, Delaware) still did not admit genetic test results to prove paternity. No state had a legally enforceable time frame within which a paternity or support action had to be resolved. The 1975 law also failed to acknowledge that few states actually had laws to enforce support orders once they were obtained. Some states (for example, Texas) actually prohibited wage garnishment to collect support from a parent who was in arrears on his obligation.
By 1980, two separate and equally flawed child support enforcement systems had emerged. The private system continued to operate for most nonwelfare families. It depended on the custodial parent's ability to afford legal counsel and wait for court action. Support, when paid, went directly from the noncustodial parent to the custodial parent leaving no public record of payment. If support was not voluntarily paid, no action was taken unless the custodial parent was financially able to hire a lawyer and pursue the arrears.
The public system focused primarily on welfare families. While providing free or low-cost services and maintaining records of payment, this system was woefully underfunded and understaffed. Moreover, this system saw its primary function as recoupment of AFDC benefits. In most states, any support collected was kept by the state to offset the AFDC grant; the family received nothing.31 The few non-AFDC families who entered the system received inferior services.32
In the next decade, however, Congress—and many of the states—made bold attempts to improve the system. The major innovations are described below.
Until the advent of genetic testing, establishing paternity was an archaic process. The mother had to prove her case with whatever evidence she could muster. Because doing so meant she had to testify that she had sexual relations examination about her own sexual history and who else she might have had sexual relations with around the time of conception. Also, the action had to be brought within one or two years of the baby's birth. Fathers were entitled to a jury trial and proof beyond a reasonable doubt of their paternity.
In 1984, spurred in part by Supreme Court cases finding it to be unconstitutional to force the mother to bring a paternity action close to the time of the baby's birth,33 Congress required every state to allow paternity to be established at least until the child's 18th birthday.34 In 1988, Congress compelled states to enact laws requiring parties to submit to genetic tests when paternity is contested.35 It also urged states to set up simple civil processes for establishing paternity voluntarily and to make contested cases civil, rather than criminal, proceedings.36 These federal requirements apply to all paternity cases, not solely to IV-D cases.
Many states responded to these congressional mandates by revolutionizing the paternity process.37 Several states (for example, Missouri and Oregon) have moved voluntary paternity establishment out of the courts and into the administrative process system.38 Others (for example, Arizona and Massachusetts) have gone beyond voluntary out-of-court establishment of paternity to allowing paternity to be established by affidavit or by signing the birth certificate.39 Still others (for example, Ohio and Washington) have gone into hospitals and birthing facilities to establish paternity at the time of the baby's birth.40
In contested cases, states have moved to a less rigorous standard of proof,41 made genetic test results which yield a high probability of paternity a rebuttable presumption that the alleged father is the father,42 and even made it possible to try paternity cases in an administrative proceeding rather than in court.43
Expediting the Process for Establishing Orders
In 1984, Congress required every state to expedite the process for establishing and enforcing support awards in IV-D cases. States must now be able to obtain or enforce an order in 90% of their IV-D cases within three months of filing them; 98% must be processed within six months and 100% within a year.44 States can continue to use their courts to issue and enforce orders so long as the courts can accomplish these tasks within the federal time frames. If the courts cannot do so, then states must set up an alternative process. One possibility open to the state is to establish a quasi-judicial system which is housed in the court but staffed by nonjudges who are specially trained in child support matters. These staff members are usually called "masters" and can issue orders (subject to judicial review) which are then approved and docketed by a judge. The other possibility is for the state to set up an administrative process system. The administrative process system is usually housed in the IV-D agency and staffed by administrative law judges who issue orders which are then sent to the court for docketing.45
Some states have set up universal quasi-judicial procedures, the most comprehensive of which is Michigan's Friend of the Court System.46 Michigan's system is used by non-IV-D as well as IV-D clients. Especially during the past two to three years, the trend has been for states (for example, Colorado) to set up administrative processes.47 Administrative processes, however, are usually available only in IV-D cases. This can be problematic for families who come into and out of the IV-D system. If a court establishes an order in a non-IV-D case, for example, and the family then applies for IV-D services, who can modify the order? An administrative agency cannot modify a court order, but the IV-D agency may use only administrative processes in modification cases. This leaves the family in limbo.
Improving the Chances that Support Will Be Paid on Time
Payment of support has traditionally been voluntary. The obligated parent had to make the affirmative decision each month (or week) to send a check, buy and mail a money order, or deliver the cash. If he or she was short of funds or angry at the custodial parent, the temptation to pay late or to skip the payment entirely was great.
In many states, the most common way to enforce a support order when the obligated parent did not pay was through a criminal action. In those states it was a misdemeanor (or sometimes a felony) to default on a support obligation. The other common remedy was to bring a contempt action. In civil contempt, the obligated parent is jailed until payment is made. As soon as he pays, he is released from jail. In criminal contempt, the defaulting parent is given a specific sentence whether or not he makes payment. Custodial parents were frequently reluctant to send their children's father to jail. Even those who were not reluctant recognized the futility of invoking these remedies. If the father was in jail, he was even less likely to pay support. If the question is how to get regular support, jailing the father does not seem to be the answer.48
The failure of this approach led some states to try a different one. Garnishing the obligated parent's wages to obtain overdue support was one remedy. Several states (for example, Kentucky and Massachusetts) went beyond this and authorized withholding of current support as well as overdue support from the obligated parent's paycheck. This method of ordering that support be withheld as soon as the child support order is entered is referred to as "immediate income (or wage) withholding."
In 1988, Congress decided to require all states to use this method of enforcement. Beginning in November 1990, in every IV-D case, all new or modified support orders must include immediate wage withholding unless the court or administrative agency finds good cause for not ordering withholding or both parents agree to an alternate payment arrangement.49 All child support orders not established by the state IV-D agency must contain immediate wage withholding as of January 1, 1994.50
In immediate wage withholding cases, once the child support order is entered, a notice is sent to the obligated parent's employer to withhold the money from the parent's paycheck and forward it to a named public entity, which could be the IV-D agency, a state central registry, or the clerk of the court.51 That entity records payment and forwards the proceeds to the custodial parent or the welfare department if the family receives AFDC.51 If the noncustodial parent is unemployed, the immediate withholding order is sent to the state unemployment insurance agency, which withholds the support payment from the obligated parent's unemployment benefits.52
The need to collect, record, and disburse child support payment in immediate wage withholding cases has led some states (for example, Ohio and Virginia) to set up child support registries.53 These registries contain an abstract of the support order, payment records, and data about the parents. Several states (for example, Colorado) now require the obligated parent to keep the registry or court informed of his or her current address.54
The wage withholding system has also enhanced the importance of obtaining parents' Social Security numbers. These can be very helpful in identifying and properly crediting payments as they come in. States are, therefore, now also required to obtain each parent's Social Security number as part of the birth records process when a child is born or paternity is established.55 These requirements affect both IV-D and non-IV-D cases.
Another reform engendered by wage withholding is employer reporting of all new hires or rehires.56 Studies indicated that some noncustodial parents frequently change jobs to avoid wage withholding. By the time they are located and the new employer served with the income withholding order, these obligated parents have changed jobs again.57 If the employer immediately reports a new hire, this practice is discouraged. The report is made (to the state employment service or the child support agency) and immediately cross-referenced to the state registry or record of IV-D cases. If there is a child support obligation, the employer is notified and withholding begins with the next paycheck. Some states (for example, Washington) allow the report to be part of the existing W-4 reporting system that employers already use in reporting information about newly hired employees. Hence, the practice is often referred to as "W-4 reporting."
Improving the Mechanisms Available to Collect and Enforce Arrears
Once the use of immediate income withholding becomes more widespread, the number of children who do not receive support regularly should greatly diminish. Over time, there will be fewer cases in which large arrears are owed. However, according to recent government studies, this development is still several years off. Wage withholding in IV-D cases is not yet widespread57 and in non-IV-D cases is just beginning to be implemented.58 Moreover, even when withholding is a general practice, there will still be millions of children to whom support arrears are owed from the time before wage withholding began.
There is also the problem of collecting current support from those who are not wage earners. It is especially difficult to collect support from the self-employed, who do not have wages subject to withholding. To date, no one has devised a system for keeping these parents current in their support payments unless they voluntarily comply. Usually, the custodial parent must wait until sufficient arrears accumulate and invoke one of the remedies designed to help pay off arrears.
A number of mechanisms have been developed to collect arrears. Congress has authorized state IV-D agencies to send a notice to the Internal Revenue Service (IRS) when child support arrears in excess of a certain amount are owed in an IV-D case.59 The IRS will seize any tax refund due the obligated taxpayer and send the payment to the state agency. The state agency can then use the money to pay off the arrears. Federal law requires states that levy income taxes to have a similar program to seize state tax refunds to pay child support arrears.60 Federal law also authorizes states to certify difficult IV-D cases to the IRS, which can then use all of the methods at its disposal to collect unpaid taxes to collect child support.61
Congress also requires states to have methods for collecting IV-D arrears by imposing liens on real and personal property;62 by ordering withholding when an amount equal to one month's support is overdue;63 and by reporting the arrears to credit agencies.64 Some states (for example, Vermont) have gone beyond these federal requirements and are also seizing lottery winning65 and withholding state professional licenses when a parent is in arrears.66 Some states (for example, Virginia) are even refusing to issue driver's licenses, car registrations, hunting and fishing licenses, and the like to those who are behind in their child support payments and have made no arrangements to meet their obligations.
Obtaining Health Insurance Orders
Many children can obtain health insurance through their noncustodial parent. Until recently, however, the state did little to obtain such coverage. Since 1989, greater emphasis has been placed on this service, and the picture is gradually changing.67
Health insurance coverage orders are meaningless unless they are enforced. Several states (for example, Virginia) have enacted laws requiring employers to put the children on the health insurance plan once the court or administrative agency has so ordered.68 These laws also require the employers to provide custodial parents with claim forms and other plan-related information, and to honor the custodial parent's signature on the claim form.69 Many of these laws apply in both IV-D and non-IV-D cases.