Brief History of Prevailing Child Support Doctrine is republished here from the Proceedings of the Sixth Annual Conference of the National Council for Children's Rights (now Children's Rights Council) Arlington, VA, March 19-22, 1992. It is an interesting flashback, showing that there was never a case for the child support reforms that we live with today. Arguments against the policy have been with us for a long time. A BRIEF HISTORY OF PREVAILING CHILD SUPPORT DOCTRINE By Roger Gay, Independent Research Consultant

CHILD SUPPORT POLICY AND THE WELFARE OF WOMEN AND CHILDREN

In the 1980s, there was a public perception that, to a great extent, poverty in the United States had been created by the high divorce rate. This incredible but persistent view, which sprang from what has become known as the political "feminization of poverty" has been discredited (Abraham, 1989), but has not been liberated from the frame of government policy. Major welfare reforms of the 80s moved into the realm of private marital contracts with child support policy that assumes father no longer has contact with his children. Increases in private support levels resulting from federally mandated, presumptive state child support formulas have benefited upper and middle income mothers.

In the 1980s, poverty reached a cross-section of American families regardless of marital status. The chief causes were a decline in wages, especially for young workers, declining effectiveness of government poverty programs, and changes in the job market (Johnson, et al., 1991). The U.S. Bureau of the Census (Current Population Reports), reported that the nations poverty rate was 14 percent in 1985. In that same year, 905,000 women with valid support orders, about 0.4 percent of the population, were living below the poverty line (Solomon, 1989). Including children, the poverty rate associated with valid support orders was approximately 1 percent.

In 1985, 7.8 million women were eligible for private child support. Of those, 23 percent were living below the poverty threshold. The 905,000 women with valid support orders living below the poverty threshold represent 11.6 percent of the number of women eligible; only about half those that were living below the poverty threshold. This pre-reform figure is remarkable given the higher rate of divorce among the 20% of American families with the lowest income and the financial havoc that results from divorce.

The most prevalent reported cause of non-payment of court ordered child support is unemployment (Young, 1975; Chambers, 1979; Wallerstein & Huntington, 1983; Pearson & Thoennes, 1986; Sonenstein & Calhoun, 1988; Braver, et al., 1988). Braver, Fitzpatrick, and Bay showed that between 80 and 100 percent of due child support was paid voluntarily by divorced fathers who are fully employed.

Envisioned to reduce spending, the Child Support Enforcement Program suffered a net loss to the taxpayer of at least $186 million in FY 1990. The program has lost money for at least two consecutive years. The federal program deficit was at least $526 million (OCSE, 1990). Support enforcement administration (extending all the way to the local district attorney's office and officials of family or domestic relations courts) has benefited from federal tax transfers under the IV-D program (OCSE, 1990). In 1990, Dick Darman, Director of the Office of Management and Budget, reported to Congress that there had been similar accounting problems in both the AFDC and Foster Care (FC) programs (referring to GAO reports).

Single female headed households have a poverty rate more than twice that of the general population. Between 1960 and 1988, the number of births to unwed mothers doubled. In the mid-80s, Garfinkel and McLanahan reported that; "National data on child support awards indicate that only about 60 percent of the children who live with their mothers and are potentially eligible for child support receive an award at all." In addition, they pointed out that; "most noncustodial parents of AFDC [Aid to Families with Dependent Children] children do not earn enough to pay as much child support as their children are already receiving in AFDC benefits. ... even the best imaginable program would still leave a large proportion of the AFDC caseload poor and dependent on government." If enforcement measures do not improve collections, Additional government costs for experimental programs will run into billions of dollars. (Garfinkel and McLanahan, 1986)

POLITICS

"Congress does not have general authority to pass or enact laws dealing with family law issues, unless there is a connection or 'nexus' between such legislation and one of the areas in which it is authorized to act." (Solomon, 1989) In 1974, Senator Russell Long perceived a connection between "fathers who abandon their children" and a growth in AFDC spending. This led to the original federal child support and paternity legislation enacted in January 1975, as Title IV, Part D of the Social Security Act. Child support enforcement services are required for families receiving assistance under AFDC, FC, and Medicaid programs.

Emphasis shifted in the 80s. Assistance in the establishment of paternity, a prime motivation in 1974, was absent from The Child Support Enforcement Amendments of 1984. A token commitment appeared in the Family Support Act of 1988. A new requirement, with no apparent relationship to enforcement, appeared in the 1984 legislation; that each state establish state-wide child support guidelines to be used as advisory tools. The legislation received support from NOW Legal Defense Fund, National Women's Law Center, American Public Welfare Association, National Council of State Child Support Enforcement Administrators, and the National Governor's Association. Representative Kennely, sponsor of the 1984 Amendments, remarked during the House debate that the reason traditionalists and feminists could support the bill was because both groups agreed that parents should take responsibility for their children seriously.

When President Reagan signed the 1984 Amendments he called it, "legislation that will give children the helping hand they need." Four years later, when signing the Family Support Act of 1988, he said the legislation represents;

...the culmination of more than 2 years of effort and responds to the call in my 1986 State of the Union Message for real welfare reform-- reform that will lead to lasting emancipation from welfare dependency. ...first, the legislation improves our system for securing support from absent parents...

The 1988 reform extended the presumptive application of child support guidelines to all child support decisions. State commissions however, did not accept the new federal role without question. In commentary associated with the August 31, 1989 adoption of the Indiana Judicial Administration Committee's child support rules and guidelines, the Committee questioned whether application of presumptive guidelines is required in non-AFDC cases. The federal Office of Child Support Enforcement (OCSE) recommended application to all cases involving child support. The committee stated;

It is the Committee's recommendation that the position of the Child Support Enforcement Division of the Department of Health and Human Services, be adopted as the failure to do so, will undoubtedly result in litigation and/or sanctions. (page v.)

There has not been wide-spread satisfaction with presumptive guidelines for child support. Washington State, a prime developer of the Income Shares method, provides a well documented sampling of the problems of child support guideline design. Study of the Income Shares technology revealed it is not appropriate for presumptive use (Hewitt, 1982). A recent study showed essentially no cases in which rebuttal has been successful (Stirling, 1991). A survey of state judges shows wide-spread dissatisfaction with the guidelines (WSASCJ, 1991).

Working at the Wisconsin Institute for Research on Poverty, Irwin Garfinkel outlined a plan for non-means tested welfare (Garfinkel, 1979). Garfinkel's experiment was first implemented in Wisconsin, and eventually found its way onto the federal agenda (Margolis, 1987). According to Garfinkel, the "tax" placed on welfare recipients by reducing government payments as their incomes from private sources rise, is more burdensome and less socially beneficial than taxing earned income. Seeing the reduction in government subsidy as a disincentive to work, he reasoned that welfare payments should not be related to financial need. (This is the basic definition of "non-means tested" welfare.)

As Garfinkel himself admitted; if everyone in the nation received maximum welfare payments regardless of income, there would be no-one left to pay for them. He imagined solving this problem by dramatically modifying his own basic proposal. He proposed a special "tax" on all non-custodial parents, with all custodial parents as the exclusive non- means tested beneficiaries. Applied to all families, this is not a government welfare program reform, but a proposal for divorce reform similar to Weitzman's widely publicized proposal on alimony stated in her popular book, The Divorce Revolution.

According to Weitzman, the vast majority of divorced women are entitled to a large share of their ex-husband's future income for life in order to maintain their independent standard of living at the level they would have enjoyed if they had remained married. She also hypothesized that men become wealthy as a result of divorce. Weitzman's thesis and data have been widely criticized by economists and experts on the subject of divorce (e.g. Abraham, 1989; Braver, 1988; Lazear and Michael; 1988; and Haskins,1985).

Courts have long since recognized that such extreme ideas did not fit the equity principles which considered the needs of children and the relative ability of parents to pay (Smith v. Smith). Garfinkel and Melli (1990) later raised the question of established child support doctrine in a paper comparing Percentage-of-Income schedules with Income-Shares, but left it to others to formulate a specific proposal.

Garfinkel and Ollerich postulated that divorce reform could reduce the "poverty gap" -- the difference between the incomes of poor families headed by single mothers and the amount of money they would need to move above the poverty level -- by 27 percent (Garfinkel and Ollerich, 1983). In order to achieve this end, private child support transfers would need to be increased, but in addition, all eligible custodial parents would have to have a valid child support order, and all non- custodial parents would need to be fully employed. Without increasing support award amounts, the latter conditions would have an enormous impact on poverty reduction for single mothers. In reality, changes have only increased support payments from those who are employed and pay. Under the reforms, those that do pay, pay extra; having no impact on children not covered by valid support orders.

A CHILD SUPPORT REVOLUTION

Under the 1984 Amendments, the U.S. Department of Health and Human Services was responsible for providing "technical assistance" to states for development of child support guidelines. Direct responsibility was passed to OCSE, and on to Robert G. Williams of Policy Studies, Inc. in Denver, Colorado (Williams, 1987). The OCSE also reviews and approves state plans and evaluates state programs to ensure that they conform to federal requirements and conducts audits to verify that states are in compliance with federal standards.

To understand Williams' recommendations we must first comment on an OCSE report authored by Ron Haskins on estimating "National Child Support Collections Potential" (Haskins et al., 1985). To make estimates as high as possible (as the title of the study suggests), Haskins ignored direct involvement, and thus direct financial contributions during that involvement, between non-custodial parents and their children. Haskins estimated that child support awards would jump from about $10 billion to $26.6 billion nationwide, based on a model that assumed all fathers belonged to Senator Long's group of deserters.

As with the Garfinkel and Weitzman proposals, non-custodial parents were treated as a disenfranchised funding source. What can and has confused legislators, litigators, judges, and child support commission members is the way in which Haskins' information was represented. Rather than acknowledging that his proposal represented an unestablished child support doctrine, Williams presented the difference between Haskins' hypothetical maximum and existing awards as an "adequacy gap" in awards, which had been decided on the basis of established legal principle.

The resulting confusion has led many states to treat similarly derived upper limits as minimum support levels, forcing much higher awards to middle and upper income custodial mothers. As further example; several states actually increase the so-called "basic support obligation" (increasing the payment) directly countering credit for the non- custodial parent's time with children in situations where it is considered. Typically applied to joint or shared custody arrangements, Williams offers the curious explanation that payment to an ex-spouse should be increased to account for the payor's direct expenses for maintaining the "second" household.

A member of the OCSE advisory panel, which lent credibility to Williams' report, later commented that Williams' approach did not correspond to the objectives proposed by the panel (Krause, 1989). Krause raised questions about the public interest and limits on private responsibility. The existence of this problem underscores the need for a more formal approach to test postulated relationships between numeric results (implementation) and policy choices.

YET ANOTHER STUDY OF THE CES

The Family Support Act (section 128) called for a study of expenditures on children. Lewin/ICF wrote the final report (Lewin/ICF, 1990). The report discusses estimates, based on the Consumer Expenditure Survey data base (CES), sub-contracted by the Wisconsin Institute for Research on Poverty (Betson, 1990). At the time of publication, the Lewin authors could not explain why Betson's estimates were consistently higher than more established estimates; for example, estimates of expenditures on children by Lazear and Michael (1988) using a "Rothbarth" approach and Espenshade's (1984) economic cost of children estimates using an "Engel" approach. Using alternative formulae, Betson presents a low-end estimate for the intact family cost of one child in a Rothbarth-Engel range of 25% (of total family expenditures) compared to an established high-end of 24% by Espenshade. (For more information on the Rothbarth-Engel range: Using the Rothbarth approach, an estimate of spending on one child, has been given as 17 percent of total family expenditures (Whiting and Bancroft, 1990). For the same one child, as a percent of total family expenditures, Betson presents an Engel method estimate as high as 33 percent.)

Child support doctrine cannot be derived or validated by analysis of the Consumer Expenditure Survey. The CES doesn't have the data necessary to calculate spending on children for any household or group of households. It shows an extremely wide variation in total family spending in several commodity categories (food, transportation, housing, etc.), with spending decisions having less relationship to income as income rises. CES based estimates do not provide sufficient information on what is actually spent on children (Hewitt, 1982). "No authoritative base exists for allocating estimated family expenditures on housing, transportation, and other miscellaneous goods and services among individual family members (Lino, 1991)."

Single parents spend less on children than would be spent by an intact family because the single parent household typically has less income than the intact family (Lino, 1991). Even if we assumed that one of the comparative standard of living estimates gave an accurate estimate of spending on children, awards based on information about spending in the intact household provide an automatic complementary benefit to the spouse. This practice has long since been established as illegal, because spousal maintenance can be awarded separately when appropriate (e.g. Hering, 1987).

Many economists contend that the Consumer Expenditure Survey is the best single source data base available for study of family spending patterns. As pointed out however, child support doctrine cannot be prophesied from its data. In order to develop better guidelines, focus must first shift from cost of children studies to child support policy. Economic studies are by themselves, unrelated to the precepts of "just and appropriate" child support awards that, according to the language of the Family Support Act, were expected from greater dependence on technology. In the context of rational policy, technologists must then develop appropriate ways of applying the information we have on the cost of raising children.

REFERENCES AND NOTES

Abraham, Jed H., 1989, The Divorce Revolution Revisited: A Counter- Revolutionary Critique, Northern Ill Univ Law Review, Vol.9, No.2,p.47.

Betson, David M., 1990, Alternative Estimates of the Cost of Children from the 1980-86 Consumer Expenditure Survey, U.S. Department of Health and Human Services, Office of the Asst Secretary for Planning and Evaluation, Sept, 1990.

Braver, Sanford, Pamela J. Fitzpatrick, and R. Curtis Bay, 1988 , Non- Custodial Parent's Report of Child Support Payments, presented at the Symposium "Adaptation of the Non-Custodial Parent: Patterns Over Time" at the American Psychological Association Convention, Atlanta, GA, August, 1988.

Congressional Digest, Welfare Reform, Washington, D.C., Feb. 1988.

Chambers, D., 1979, Making Fathers Pay: The Enforcement of Child Support, Chicago, University of Chicago Press.

Espenshade, Thomas J., 1984, Investing in Children, The Urban Institute Press, Washington, DC, 1984.

Garfinkel, Irwin, 1979, Welfare Reform: A New and Old View, The Journal of The Institute for Socioeconomic Studies, Volume IV, Number 4, Winter, 1979.

Garfinkel, Irwin, and S. McLanahan, 1986, Single Mothers and Their Children, A New American Dilemma, The Urban Inst Press, Washington, D.C.,1986, p24-25.

Garfinkel, Irwin, and Marigold S. Melli, 1990, The Use of Normative Standards in Family Law Decisions: Developing Mathematical Standards for Child Support, The Family Law Quarterly, Vol. 24, p. 157, Summer, 1990.

Garfinkel, Irwin, and Donald Ollerich, 1983, Distributional Impact of Alternative Child Support Systems, Policy Studies Journal, Vol. 12, No. 1, September, 1983, pp. 119-29.

Haskins, Ronald, Andrew W. Dobelstein, John S. Akin, and J. Brad Schwartz, 1985, Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families, Final Report, Grant #18-P-00259-4-01, Office of Child Support Enforcement, April 1, 1985.

Henry, Ronald K., 1990, Litigating the Validity of Support Guidelines, The Matrimonial Strategist, Volume VII, No. 12, January, 1990.

Hering, Marriage of, 1987, 84 Or App 360, 733 P2d 956 (1987).

Hewitt, William,1982, Report on the Washington State Association of Superior Court Judges, Uniform Child Support Guidelines, Institute for Court Management, Court Executive Development Program.

Johnson, Clifford M., Leticia Miranda, Arloc Sherman and James D. Weil, 1991, Child Poverty in America, Children's Defense Fund, Wash, D.C. ISSN:1055-9221.

Krause, Harry 1989, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, University of Illinois Law Review, Vol. No. 2, 1989.

Lazear, Edward P., and Robert T. Michael, 1988, Allocation of Income Within the Household, The University of Chicago Press, Chicago, 1988.

Lewin/ICF, 1990, Estimates of Expenditures on Children and Child Support Guidelines, Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, Oct. 1990.

Lino, Mark, 1991, Expenditures on a Child by Single-Parent Families, Family Economics Review, Vol. 4, No. 1, 1991.

Margolis, Richard J., 1987, Wisconsin's Child-Support Experimen t, The New Leader, October 19, 1987.

OCSE, 1990, Child Support Enforcement, Fifteenth Annual Report to Congress, For the Period Ending September 30, 1990, U.S. Department of Health and Human Services, Admin for Children and Families, Off of Child Support Enforcement.

Pearson, J., and N. Thoennes, 1986, Will this divorced woman receive child support?, Minnesota Family Law Journal.

Smith v. Smith, Or., 626 P.2d 342 (1981).

Solomon, Carmen D., 1989, The Child Support Enforcement Program: Policy and Practice, Congressional Research Service Rpt for Congress, Dec 8, 1989, 1-3.

Sonenstein, F.L. and C.A. Calhoun, 1988, Survey of Absent Parents: Pilot Results, Paper presented at the Western Economic Association, Los Angeles.

Stirling, K., 1991, Survey of Child Support Orders in Washington State, Washington State Institute for Public Policy, 1991. ("Rebuttal" is differentiated from "deviation." The later merely states that rules in worksheets that do not apply to all cases were applied. e.g. second families.)

Wallerstein, J.S., and D.S. Huntington, 1983, Bread and Roses: Nonfinancial Issues Related to Fathers' Economic Support of their Children Following Divorce, In J. Cassety (Ed.), The parental child- support obligation, Lexington, MA: Lexington Books.

Whiting, Brent A., and Robert L. Bancroft, 1990, Analysis of the Washington State Child Support Schedule, Edited by Galyn Gardner, available from authors, November 3, 1990.

Williams, Robert G., 1987, Development of Guidelines for Child Support Orders: Final Report, U.S. Department of Health and Human Services, Office of Child Support Enforcement, March, 1987.

WSASCJ, 1991, Child Support Survey Final Results, Washington State Superior Court Judges Association, Family and Juvenile Law Committee, April, 1991.

Young, 1975, Arthur Young & Company, Detailed Summary of Findings: Absent Parent Child Support: Cost-Benefit Analysis, Washington, DC: Department of Health, Education and Welfare, Social and Rehabilitation Service, 44-46,62-64.

Roger F. Gay