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Child Support and the ‘Best Interests of the Child’

2007-06-06
By

Background: Recently I debated the Texas frozen embryo case on Fox’s nationally-syndicated Morning Show with Mike and Juliet. The case involves Augusta Roman and her ex-husband Randy Roman, who during their marriage tried for several years to have a child (and had one miscarriage) before undergoing infertility treatments.

The day before the embryos were to be implanted, Randy told her that he was troubled by certain aspects of their relationship and wanted to wait to implant the embryos until they had resolved their problems. They went to counseling for six months and later divorced.Augusta, who will be 47 in August, still wants to have the embryos implanted, and Randy has refused, leading to a high-profile court battle. To watch a video of our debate, click here.

During our debate, Augusta Roman and her attorney Becky Reitz insisted that Randy Roman would not have to pay child support because Augusta would not ask for it and Texas law allows sperm donors to decline parental responsibility.  I said that regardless of what Augusta claims or does, and regardless of the law they describe, family courts have enormous power to do whatever they want in the “best interests of the child,” and that it is likely that Randy would have to pay child support.

Ironically, I just saw this article–Nebraska high court rules mom can’t excuse dad from child support (Omaha World-Herald, 6/1/07)–in which the Nebraska Supreme Court applies the same argument. The case pits a man who has never had a relationship with his child against the child’s mother. The father claimed that the mother didn’t want him in the child’s life and had said she wouldn’t ask for child support if her agreed to stay away. The mother claims that no such agreement exists. The Nebraska Supreme Court wrote:

“…even if such agreement did exist, the agreement was against public policy; and that because the right to support belonged to Kayla [the child], any agreement made or actions taken by Linda would not be the basis for equitable estoppel in this paternity and child support action brought by the State on Kayla’s behalf. We therefore reject Risinger’s [the father] assignments of error.

In other words, when mom is raising the kids, it is always in the child’s best interests that the father pay, so pay he must–exactly as I said on Fox.


Nebraska high court rules mom can’t excuse dad from child support

BY MARTHA STODDARD
WORLD-HERALD BUREAU
June 1, 2007

LINCOLN – The father of a Rock County girl must pay child support even if her mother had agreed to excuse him from that obligation, the Nebraska Supreme Court ruled Friday.

According to the court’s ruling, Lyle D. Risinger claimed he had agreed with the child’s mother that the mother would give up support payments if he made no attempt to contact the child.

The district court concluded there was no such agreement and the Supreme Court upheld that conclusion.

But the high court also said such an agreement would be void because the right to support belongs to the child.

“The purported agreement by which Risinger would avoid child support in exchange for not contacting the child would contravene public policy and be unenforceable,” the court said.

That leaves Risinger responsible for paying child support of $591 a month, plus retroactive support of $60,119.

Help for Los Angeles/Ventura County Dads
Peter M. Walzer, Certified Family Law Specialist
www.California-Divorce.com
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  • hmh1497

    Here we go again mixing rights with entitlements, while misunderstanding the difference between interests and rights.

    I have an interest in all Glenn Sacks’ money. In fact, he owes it all to me because he usually benefits from my wisdom (how daya like that left-wing arrogance?). But Glenn, I hate to admit, has a right to his own property. His right is paramount to my interest.

    BIC is stupid.

    Those old founding fathers had an incredible volume of wisdom to hand-down to the ages. In one sentence they answered nearly every dilemma today by simply saying; we have a right to life, liberty and the pursuit of virtue. My right to pursue virtue is exercised here, especially in the comments on MensNewsDaily.

    The rights of all children to be parented by their own parents are paramount to any interest the screaming meanies can conjure up at any given moment. Ex-Mrs-whatever-her-name-is has no right to intentionally give birth to a child who has no father. That goes for any sperm snatching uterus out there (except of course for women who are reproducing with their baby’s willing father).

    It’s time to bring the law into perspective with the state-of-art in technology. Science makes possible unimaginable new choices for reproduction, but it in every case, all of our rights to life must be preserved. Reproduction involves 3 people; mother, father and child. Our genome is nearly duplicated in every child we bring into this world. Our future depends upon living good, leaving this world better, so they will continue to live our lives for eternity. Our kids have a right to life, which includes a right to be raised by their own parents. A society cannot revoke that right because it believes it has discovered a more convenient path to take. We own rights, they are not granted.

    We have a right to choose our mate; and when technology progresses to the point where a pregnancy can end, while the fetus lives; we will end abortion and Rowe v Wade will be reversed as fast as all the decisions involving Dred Scott.

    There is no right to support; it’s a modernist’s creation of entitlement. An entitlement conjured up by all those chauvinist sycophants out there together with their complicit feminist partners. But just maybe it might be because the church wants to pin a scarlet letter on all divorcees; or better yet, compel them to remain married at all cost.

    I believe that protecting the rights of every individual is the answer to each of these problems. Share whatever you want, but none of us share our rights, liberties and our pursuits of virtue; we own them. My kids own their right to be raised; I can’t take it from them, and I will fight you if you try and take it from them.

  • Thomas

    Well – fundamentally I think the whole guideline approach is hugely flawed – would work in some fundamental sense if there was true presumption of shared parenting. But just for the sake of discussion – I agree, the government would have a hard time tracing billions of transactions if accountability was required on the part of the CP. However there are ways around this – not perfect, but better than what we have:

    1.) Year end reports showing all expenditures on the child(ren) that must be presented by the CP. Sort of like doing your taxes. The NCP would have the option of reviewing and challenging each of the following year.

    2.) Provide a clause in the guidelines allowing NCP’s access to the records of CP to determine how the child is being supported. I.e., the CP would have to provide documentation of his or her expenses related to the child. The NCP could therefore make motions based on evidence indicating embezzlement. Naturally, courts could punish (financially) an over-zealous NCP making one or many frivolous claims.

    3.) Modify the guidelines to explicitly require accounting of all expenses related to the child during Child Support hearings – every child support hearing.

    Just some thoughts. But ultimately I believe that Shared Parenting is the solution to all of these issues.

  • wheresmy40

    Big business requires a catchy sales slogan. Family law is not law, but a big business. Hence the “Best interests of the child” slogan.

    Think of the “Feed the children” campaign. Sure, a few children actually got a little food, but many folks made a bunch of money using children as bait.

    Some will argue (no they won’t) that “best interest of the child” is a standard of proof necessary to reach a just decision. FALSE, too much ambiguity. “Beyond a reasonable doubt”, a “preponderance of the evidence”, “probable cause to believe” and “reasonable suspicion” are each definable “standards” on which to base a decision. Using the “best interests of the child” as a standard has been counter to the true best interests of children for quite some time now.

    TRUTH in advertising would dictate the standard be changed to the “best interests of lawyers, judges, states, courts,etc.”.

  • KRS

    Well, although I don’t agree with it, I can almost understand why the courts don’t go after CPs to demand that support money is spent on children. It would mean following up on the details of billions of individual financial transactions, which would overwhelm the legal system. They just wouldn’t have the resources to follow up.

    What they could do, though, is demand that both parents work. They could easily pass laws (as some states have) requiring the BOTH parents work. Judges could order that the CP mom find a job, regardless of her whining. This happens in selected states (such as CA where I have second-hand knowledge of specific cases where this has happened). The problem is that that it just doesn’t happen enough, and not in all states.

    Interesting that you use the word “angelic” to describe CPs, Thomas. I think that is precisely how our society views women — as god-like creatures. More than human. Universally virtuous. “Nurturing”. Lacking any vices whatsoever, such as selfishness or greed. And this is the reason the courts treat them with kid gloves. Surely a mom would never lie, cheat, steal, kill, spend support money on herself rather than “her” kids (as though they belong to her but not to the dad). And so on.

    It’s a belief in the all-encompassing goodness of Woman, and it’s sick. Not to mention simply untrue.

  • Thomas

    The other most ludicrous aspect: Just because we can force NCP’s to give the money to the CP’s it must be getting to the chidlren. This is an absurd assumption of course and is the basis of the fallacy behind this sound bite:

    “We, as [whatever type of] politicians are going after these ncp and holding them responsible for their children – we will make sure that are held financially accountable for their children. We will track them down and extract the required funds.”

    So great – now they got the money – but where the H*ll is it going. They never mention that and no one asks. We just assume CP are some angelic breed of people totally absent of all the human vices we all have in one way or another. I can’t believe the public at large falls for this Cr*p.

  • Thomas

    Great post KRS – yes that is one of the many ludicrous aspects of the child support laws in this country. A good illustrative scenario is as follows:

    Mom (CP) earns 200,000 a year
    Dad (NCP) earns 50,000 a year

    Courts award mom 17% of 50K or 8,500 a year in cs
    Courts assume mom is paying 17% of 200K or 34,000 a year in cs (as per guidelines)

    If dad falls on hard times or loses his job and can’t pay he is exposed to draconian punishments including jail. Basis – he removed 8,500 in support for his child.

    If mom volunteraly quits her job, removing $34,000 a year in support !!! Not a word from anyone.

    Totaly ridiculous and this is happening all over the place.

  • KRS

    JW…. In many states like mine (Illinois) although the child is always entitled to support from the NCP (i.e., the dad), the law is silent in terms of forcing the CP mother to support the child. The presumption is that because the children live with her, that of course she will work to support them. Needless to say, this is a tenuous presumption at best. As it plays out in real life, the mom can easily get away with not supporting the child, while the dad has the entire weight of the state bearing down on him forcing him to pay.

    This very scenario proved out in my own divorce. I was compelled to pay support but my ex was free to go to law school for four years after the divorce. Funny how that worked.

    So this whole notion of support being in the “best interests of the children” rings very hollow with me. The courts are NOT interested in the children. They just trot out that excuse whenever they are challenged to explain their one-sided, biased decisions.

  • jw

    Here’s what drives me nuts about this:

    Here in Canada we’re running 27% of single parents are men. Take off 8% for the ‘dad has the older kid, mom the younger’ and other shared custody arrangements and you’ve got the 19% of single parents are men. BUT! But, only 3% of those receiving child support are men!

    You NEVER, not ever, hear of Non-custodial mother’s obligation to pay support! It is only MEN who appear obligated by best-interests-of-the-child. This is a great wrong.

  • roger

    actually – what i have seen happen is, the new boyfriend moves in and demands that the payments continue to flow.

    men don’t adopt other men’s kids these days. bastardy helps the “step dad” too!

  • Thomas

    PolishKnight post #11 – clearly that could be arranged but think of the implications. By law, a significant portion of one parent’s income is transferred to the others. The recipient maintains that he/she does not need or want it and in the early stages returns it. However, can you imagine this continuing very long. Eventually, the recipient is going to say something like “You know what – this month I’m a bit short so I am only going to refund half of the support payment.” Next month, for some odd reasons his/her expenses are even larger (perhaps new clothes, etc.) and the process escalates. The transfer of wealth is inevitable – the laws have ensured this. Most of us have been duped – asleep at the wheel, so to speak, as feminism seized the hearts and souls of the many (both men and women) and few argued.

  • thurston861

    Guy next door moved in with the mother of his child. Pays the Child support that comes back into the household. They just have lag time on funds.

  • PolishKnight

    Couldn’t the mother who supposedly doesn’t want the child support just return the funds to the father making it a wash?

  • mruffolo

    America’s liberal family courts are foolish. They help produce the worse in our children. They help produce the worse for our country. Thanks feminism.

  • mruffolo

    Students from intact families reported a higher level of fathers’ nurturing than peers whose parents had divorced.

    http://www.familyfacts.org/findingdetail.cfm?finding=7620

    The greater the fathers’ involvement was, the lower the level of adolescents’ behavioral problems, both in terms of aggression and antisocial behavior and negative feelings such as anxiety, depression, and low self-esteem. Though these behavioral problems were greatest among youths who said they did not have a father, the negative emotions were at the same level among those with no fathers and those with fathers who had low levels of involvement.

    http://www.familyfacts.org/findingdetail.cfm?finding=8371

    Adolescents living with both biological parents were 38% less likely to transition to sexual intercourse when compared to adolescents from all other family structures.

    http://www.familyfacts.org/findingdetail.cfm?finding=8330

  • Thomas

    “Best Interest of the child.” Give me a break – from my experience, research, general knowledge and involvement with many others who have been through the courts – not one of them has ever truly acted in the best interest of the child even though they throw that term around as a mantra. In fact they are horribly negligent in the first step – actually determining what is in the “best interest of the child.” Instead they blindly apply some biased and often personal ideology which makes their decisions quick and defendable. I.e., the cookie cutter approach.

    Their description of “the best interest of the child” is so far from reality that many courts and judges are doing the exact opposite – hurting children and often with the underlying believe that extracting money from one of the parents will solve all problems.

    The ironic thing is that the best interest of the child (that the courts currently rely on) was largely defined by Anna Frued, Solnit and Goldstein – a bunch of lunatics who themselves require(d) years of therapy. Using their literature as a guide in determining what is in the best interest of the child is like Bush using Bin Laden as a national security advisor.

  • Menck

    As I stated, WLS, ‘best interest’ and ‘parens patriae’ are indistinguishable in practice, part of a continuum. And family court most certainly does initiate actions on its own. A good deal more goes on there than simply standing before a judge to recieve your orders.

    Had you ever been through it you would know that.

  • http://www.antipeonage.0catch.com Roger Knight

    Don’t tell me, let me guess:

    Lyle D. Risinger did not plead the Antipeonage Act.

    Am I right?

  • Menck

    As any person with a minimal number of operative synaptic connections knows, ‘best interest’ and ‘parens patriae’ are one and the same, indistinguishable in practice.

    The heinous euphemism, ‘best interest’, provides carte blanche discretion for any family court judge to do whatever they wish to force the father out of the life of his children and shackle him to indentured servitude in the form of draconian child support requirements.

    “Do-it-yourself jobs”, indeed.

  • BobH

    Somehow the child has a “right to support” that the mother cannot negotiate away, but has no “right to life” that the mother needs to respect.

    Women have options, men have obligations! Could the hypocrisy of the situation be more apparent?!

  • mruffolo

    A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling.

    http://www.foxnews.com/story/0,2933,271116,00.html







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