Is The Family Law System Fair To Fathers?

There are many flaws with the child support systems in America. Minnesota is no exception.

PROBLEM 1 - MONEY TALKS

One dirty secret of the child support system is that it is incentivized by federal money.

How Does it Work?

The Welfare Reform Act of 1996 was designed to reduce budget deficits by providing states with government funding for recovering welfare costs. This included within its scope child support since child support is recovered by the state to pay any welfare benefits provided to a custodial parent. It unintentionally also included child support paid by those who did not receive welfare benefits.

Based on recent statistics, it is estimated that the federal government provides $4.2 billion in grants to states for their child support collection services. The payments to the states are based on a percentage of their child support collections operating costs. As a result, the larger the child support enforcement costs, the greater the federal funding. Of course, the best way to increase the size of the system is make sure that the state is collecting as much child support as possible. The end result in Minnesota, and other states, is that state collection of child support is mandatory unless:

1. No public assistance is provided to the custodial parent on behalf of the children; and
2. Both parents elect to waive that withholding.
Even more compelling, the state also appears to have an incentive to avoid joint physical custody arrangements where less child support is likely to be exchanged.

PROBLEM 2 - CHILD SUPPORT UNRELATED TO FINANCIAL NEED

Child support is not tied to the necessary financial needs of the child.

Child support guidelines were created to provide some uniformity to child support calculations. However, those guidelines often provide financial incentives to custodial parents to have serial children with multiple child support payers.

Under Minnesota's pre-2007 child support guidelines, a non-custodial parent would pay child support that is usually 25% of that parent's net income. If that individual is a father and he has two children with the same mother, he would pay 30% of his net monthly income. If, however, he has a second child with a second mother, he would pay another 25% of his net income after deducting the first obligation. Similarly a mother with three children from three different fathers could receive 25% of the net income from each father. See the incentive?

A simple review of child support awards in absurdly unbalanced cases also supports the conclusion that child support guidelines often ignore reason. In 1995, the actor Jim Carrey agreed to pay $10,000 a month in child support for their daughter, Jane. Recently, his ex wife, Melissa has asked the courts to increase that amount. Similarly, a court recently awarded the mother of the child of actor Matt LeBlanc a staggering $15,000 per month.

PROBLEM 3 - DEADBEATS CREATED BY SYSTEM WHERE RETROACTIVE MODIFICATION IS NOT ALLOWED
Under the law, a court cannot modify a child support obligation retroactively. As a result, parents that fall on unanticipated hard times may find themselves falling behind in child support. Even when a motion is filed, the hearing may be scheduled many months into the future. In the interim, the unemployed parent may be labeled a deadbeat, have their driver's license suspended, and incur judgments and interest on judgment for any arrears.

One of the most compelling examples of this problem occur with the National Guard. With war in Iraq and Afghanistan, increasing numbers of Minnesota troops are activated and reserve units deployed. Many of those troops, unfamiliar with the system or how to modify support in the short term are unable to have child support hearings held before they are deployed. With their reduced wages, all too often they fall behind in child-support payments. Once they fall behind, they incur penalties and interest as well has having Judgments docketed against them. Even given their special circumstances, there is no forgiveness for those arrears.

PROBLEM 4 - CHILD SUPPORT CAN BE DETERMINED RETROACTIVELY FOR NEW OBLIGATIONS

Unlike child support modifications, an initial determination of child support may be made retroactive for up to two years. This most often impacts fathers in cases where they may not know that they have a child OR where the mother asked the father not to be a part of that child's life. Yet, even though the parent was not advised that he may have fathered a child or was not allowed to play a part in that child's life, it does not prevent the mother or the state from filing an action for child support at any time and seeking as much as two years of past due child support. Such proceedings often result in financial disaster for fathers and any new families they may have established.

PROBLEM 5 - PATERNITY FRAUD

A growing problem is also paternity fraud. Paternity fraud is the act of falsely naming a man to be the biological father of a child. It often occurs for the purpose of collecting child support or to cover up infidelity which occurs during a marriage. In many instances, named fathers may be required to pay child support when the relationship with the mother dissolves. However, when there is conflict regarding custody or parental rights, nothing prevents the mother from seeking to establish paternity of the true biological father and, thereby, eliminate or reduce the rights of the parent that has been paying support for a term of months or years. Even more incredible is that in most cases, there is no viable legal action through which the fraudulently obtained child support can be reimbursed.
CONCLUSION
There must be major reform in the child support industry. Child support guidelines must be modified to reflect contributions for actual child support expenses rather than based on a rigid grid formula that is in place today. The laws must also allow some flexibility for modifying child support, even retroactively when special circumstances exist. Perhaps the best solution would be legislation that creates a presumption for joint physical custody thereby eliminated or significantly reducing child support awards.

Maury D. Beaulier is a recognized leader in divorce and family law. He is a sought after speaker and has appeared on National programs on a myriad of family law and father's rights issues. He can be reached from his website at www.divorceprofessionals.com