The implicit assumption
behind this is that the non-custodial
parent is a father who intentionally
abandons his family. This model and
its solution no longer fits the modern
family breakup. Women are equally
capable of providing for themselves,
and they have been for some time.
And most fathers in divorce are not
abandoning their children. In fact,
quite the opposite is the case. Today,
many mothers use the courts to intentionally
dispose of the father (except for
his income). We call this forced fatherlessness,
and refer to these men as throwaway
dads.
Using the model of
the abandoning father, it was easy
to rationalize that the father should
subsidize the new fatherless family.
However, this is now indefensible.
Where once there was one household
there are now two. The standard of
living must decrease, at least temporarily.
The Guideline, and the court’s divorce
policies in general, should be guided
by an objective of establishing an
arrangement that is most conducive
to both parents improving their standards
of living, to perhaps reach or exceed
what it was before the breakup. The
present Guideline does exactly the
opposite. It encourages the custodial
mother to quit working, while providing
no incentives for the father to earn
more income and raise his standard
of living back to where it was before
the breakup, since new income is also
subject to child support at the same
rate.
Furthermore, the
present Guideline was arrived at by
applying a model developed from a
report that is fraught with error.
This report was prepared for and presented
to the Child Support Guideline Conference,
held September 15 – 17, 1986 at Queenstown,
Maryland3. We reason that
the present Guideline was driven by
this report because much of the language
is identical to terminology in the
D.O.R.’s 1993 report "Report
on the Child Support Guideline,"
and because one of the authors, Marilyn
Ray Smith, is the chief legal counsel
of the D.O.R. Child Support Enforcement
Division.
Smith’s report attempts
to model the Guideline by examining
and comparing the SofL (standard of
living) of family members before divorce
and afterward. We first note the basic
error in principle that the SofL of
the NCP is arrived at considering
only the costs of one adult; that
is, it does not take into account
expenses the NCP incurs providing
for the children while in his care
(most notably among these costs are
housing). However, there are many
errors in the methodology, and all
errors serve to over-inflate the NCP’s
SofL after divorce while overestimating
the decrease in the CP’s SofL.
In an analysis of
the report, Kevin Whitney determined
the following problems with Smith’s
report4.
- Economic baseline data is from
1960-61, hopelessly out of date.
The data shows that a NCP requires
38 % of pre-divorce total family
income to maintain the same SofL,
and that a CP with two children
requires 77 % of the pre-divorce
family income. Note that this
totals to 115%. According to these
numbers, two households -- one
providing for the children, the
other a "visitor" who
does not need to provide anything
for the children -- can maintain
their pre-divorce standard of
living if they are able to raise
their collective income by 15%.
It is self-evident that it is
impossible to create two households
out of one with only a 15% increase
in income.
- The formula used to calculate
the SofL’s mixes pre-tax income
with post-tax income. Pre-tax
and post-tax values are applied
to the child support component
of the formula, as it applies
to the CP and NCP post-divorce
SofL’s.
- CP income is always assumed
to have been available before
divorce, making no distinction
in the formula for the CP who
earned no income before divorce,
but became an earner after the
divorce.
According to Whitney:
"When the
author examined the materials supplied
by the DOR which described the method
for determining those guidelines,
he was surprised to find substantial
flaws in the model used to determine
the change in standard of living
of the parties involved in the support
determination activity. Further,
the DOR’s "Report on the Child
Support Guideline" evaluates
policy and make policy suggestions
based on that flawed model. One
of the flaws, if corrected, completely
invalidates the way DOR uses the
standard of living model, and hence,
also invalidates the conclusions
reached in the DOR’s examples. Since
those examples are the basis of
policy making decisions, the resulting
policies are invalid. The DOR’s
report loses credibility even more
by having errors in calculations
in the examples used to support
their proposed changes to the existing
Guideline. Further, applying the
Guideline to a $25,000 wage earner
proves to impoverish that parent
to the point where that parent cannot
afford modest basic living expenses."
Consequently, Massachusetts
child support awards are by and large
the highest in the nation, and in
most cases, significantly so. David
B. Weden has analyzed several comparative
studies of state guidelines5.
His report includes
the following conclusions:
"In family
situations involving one child,
Massachusetts child support guidelines
produce a result that is far higher
than virtually all other states.
This disparity increases as family
incomes increase, and is especially
dramatic for family incomes over
$60,000. … this disparity cannot
be explained by the relatively high
cost of living in Massachusetts.
"…the Massachusetts
child support guidelines produce
presumptive awards that do not reflect
commonly accepted patterns of family
spending on children:
"· For cases
involving one child the Massachusetts
guidelines produce presumptive awards
that greatly exceed estimated family
spending on children as reported
annually by the United States Department
of Agriculture, especially as family
income exceeds $47,000. For cases
involving more than one child, this
same disparity emerges, but is not
as pronounced as with one-child
cases. Further, the observed disparity
widens continuously as income rises.
These observations imply that the
Massachusetts guidelines do not
reflect commonly accepted spending
patterns on children, as determined
by numerous studies, including the
USDA.
"· The Massachusetts
guidelines produce a result that
increases (as a percentage of after-tax
income) as income rises. This is
inconsistent with previous studies
of costs of child rearing, as well
as the USDA estimates, and provides
further evidence that the Massachusetts
guidelines are not based on commonly
accepted patterns of child rearing
costs.
"The effect
of child support on stepfamilies
is dramatic, and stepfamily situations
are not addressed in the Massachusetts
child support guidelines. For one-breadwinner
families, the analysis presented
by the author suggests that stepfamily
households receiving child support
are favored by up to 90% over stepfamilies
paying child support."
The following table
from the report dramatically reveals
the inequity of the Mass. Guideline.
2.
WHEN IT IS APPROPRIATE TO APPLY A
CHILD SUPPORT GUIDELINE
There is little disagreement
that the adversarial court environment
is the worst place to resolve family
breakups that involve children. Most
people who truly have the best interest
of children at heart recognize that
the state must encourage and provide
alternatives, and that a decision
imposed by a judge on two warring
parents must become the very last
resort, not the first option. In keeping
with this principle, future efforts
at divorce reform should recognize
the need to encourage parents to mediate
their differences. The amount of money
to be changed hands, if any at all,
should be decided upon by the parties
themselves.
In the ideal situation
parents will share custody of their
children, and each will provide for
their children while they are in their
care as they see fit. The state has
no business imposing on parents what
they should provide for their children
when it is evident that both parents
wish to continue their parenting role.
However, in other circumstances it
may be appropriate to make a child
support award by applying the Guideline.
The circumstances under which this
may be appropriate are:
- Intentional abandonment of the
children by a parent.
- Custody goes to trial and a
court determines it is in the
true best interests of the children
involved to live in an arrangement
with a sole custodial and a non-custodial
parent.
3.
WHEN A CHILD SUPPORT AWARD SHOULD
BE TERMINATED
Presently after a
family breaks up through divorce,
the upheaval in the lives of all concerned
does not end with the Judgment Nisi.
Often the aftermath is even more pronounced.
For example, once sole physical custody
is established, the custodial parent
(overwhelmingly the mother) may seek
to move away from the last place of
family domicile. Often, the motivation
for moving away, especially to a great
distance, is to prevent any change
in the custody order and the child
support award. Limiting the father’s
access by moving away can ensure that
the child’s bond with the father can
only weaken.
Because a family
breakup is reduced to a zero-sum game
where the custodial parent obtains
up to 40.25% of the non-custodial
parent’s gross income for up to twenty-three
years, the divorce process has become
militarized to an unprecedented degree.
A father who can demonstrate a history
of involvement with his children runs
the highest risk of being attacked
by a mother who fears the possibility
that the court may recognize him as
the better parent. In these cases,
it is common for the mother to employ
the tactical weapons of the divorce
arsenal (that are essentially available
for women only): allegations accusing
the father of parental unfitness,
"domestic abuse," and the
nuclear "tactical" weapon:
sexual molestation of his children.
These unfortunate
realities cry out for the courts to
establish proactive policies to discourage
such reprehensible behavior; their
current popularity derives at least
partially from the absence of effective
punishment for mothers caught using
such tactics. The threat of terminating
child support is a weapon the courts
must wield to deter such misbehavior.
Child support awards
should be terminated under the following
circumstances:
- A child reaches the age of majority,
not twenty-three.
- The custodial parent moves away
against the wishes of the other
parent, severely curtailing access
to the child[ren].
- The custodial parent was determined
to have made fraudulent allegations
of misconduct -- criminal or otherwise
-- during the hearings that resulted
in the custody and child support
judgment.
- The custodial parent employs
other means to curtail or restrict
non-custodial parental involvement,
such as engaging in parental alienation
syndrome.
- Paternity fraud is discovered.
4.
OUR RECOMMENDATIONS FOR THE GUIDELINE
REVIEW PROCESS
Since non-custodial
parents pay child support, non-custodial
parents (overwhelmingly fathers) must
be appropriately represented in any
public forum that affects child support
policy.
CPF/The Fatherhood
Coalition is an active, non-profit
organization that helps non-custodial
fathers with their custody-related
problems and performs advocacy work
on behalf of father’s rights. We are
the best qualified to represent the
interests of non-custodial parents
in this review process. This report
includes several recommendations for
changing the Child Support Guideline.
They are not a substitute for our
active participation; they are merely
some of the suggestions that we wish
to bring to the table.
The last review of
the child support Guideline was done
without participation from non-custodial
fathers and without public hearings.
In addition to representation, we
request open public hearings accessible
to citizens across the state.
Additionally, we
do not believe the errors in Marilyn
Ray Smith's work are accidental, since
they all disadvantage the non-custodial
parent. The inclusion of someone with
such questionable objectivity will
undermine the integrity of the revised
Guideline. We object to the potential
participation of Marilyn Ray Smith
in the review process.
5.
SPECIFIC CHANGES TO THE EXISTING GUIDELINE
With the objective
being to make the Guideline fairer
to the non-custodial parent, we have
chosen to simplify it by removing
special considerations for the custodial
parent, rather than complicating it
further by adding commensurate special
considerations for the non-custodial
parent. These changes include:
- Removing the $15,000 income
disregard for the custodial parent.
- Removing the percentage adjustment
for ages of children.
- Replacing the three-tiered income
bracket percentages with a single
bracket.
- Incorporating baseline percentages
that are reasonable.
- Allowing for an adjustment based
on the amount of non-custodial
parenting time.
- Limiting child support income
to that earned for a forty-hour
week (or equivalent), thereby
providing an incentive for the
non-custodial parent to improve
their economic situation so that
they can provide a decent standard
of living for the children at
their home.
Key:
-
Present Guideline text is in italics
- Changes are in plain text
- Other modification directions
are in bold text
In establishing these
guidelines, due consideration has
been given to the following principle:
2) To encourage joint
parental responsibility for child
support in proportion to, or as a
percentage of income
Add:
and in proportion
to the amount of time spent in
each household;
3) To provide the
standards of living the child would
have enjoyed had the family been intact;
Delete.
4) To meet the child’s
survival needs in the first instance,
but to the extent either parent enjoys
a higher standard of living to entitle
the child to enjoy that higher standard;
Replace with:
4) To meet the
child’s survival needs in the
first instance, but when the former
family’s standard of living was
at or below the poverty level,
to entitle the child to enjoy
a raised standard to the extent
either parent has improved their
economic well-being;
8) To allow for orders
and wage assignments that can be adjusted
as income increases or decreases.
Replace with:
8) To allow for orders
that can be adjusted as income increases
or decreases.
II.
FACTORS TO BE CONSIDERED IN SETTING
THE CHILD SUPPORT ORDER
B.
CLAIMS OF PERSONAL EXEMPTIONS FOR
CHILD DEPENDENTS
In setting a support
order, the court may make an order
regarding the claims of personal exemptions
for child dependents between the parties
to the extent permitted by law.
Replace with:
In setting a
support order, when the amount
of child support is sufficient
to place the custodial parent’s
family income above the level
required for public assistance,
personal exemptions for child
dependents will be granted to
the child support obligor.
C.
MINIMUM AND MAXIMUM LEVELS
...
Remove paragraph
one that deals with custodial
parent $15,000 income disregard
Remove paragraph
three that deals with INCOME ATTRIBUTION
D.
CUSTODY AND VISITATION
1) Custody
These guidelines
are based upon traditional custody
and visitation arrangements. Where
the parties agree to shared physical
custody or the court determines that
shared physical custody is in the
best interests of the children, these
guidelines are not applicable. The
guidelines are also not meant to apply
for cases in which there is split
physical custody, i.e., each parent
has physical custody of one or more
children.
2) Visitation
These guidelines
recognize that children must be allowed
to enjoy the society and companionship
of both parents to the greatest extent
possible. The court may adjust the
amount of child support beyond the
2 percent range (see Basic Order,
Section III A.) after taking into
consideration the parties actual time
sharing with the children and the
relative resources, expenses, and
living standards of the two households.
In some instances,
the non-custodial parent may incur
extraordinary travel-related expenses
in order to exercise court ordered
visitation rights. To foster parental
involvement with the children, the
court may wish to consider such extraordinary
expenses in determining the order.
Replace with
D. CUSTODY AND
VISITATION
1) Custody
These guidelines
are based upon traditional custody
and visitation arrangements. But
where both parents were actively
involved in the raising of the
children, and both parties desire
to continue in their parenting
role to the maximum amount possible
in a two-household family, these
guidelines can also be used to
establish a child support order.
In such cases, the adjusted weekly
support order amount as calculated
in the worksheet (see worksheet
(C)) shall be modified according
to the following formula:
(weekly-support-order)
=
(weekly-support-order)
´ ((7 – average # days per
week with NCP) ¸ 7)
Where the parties
agree to shared physical custody
or the court determines that shared
physical custody is in the best
interests of the children, these
guidelines are not applicable.
The guidelines are also not meant
to apply for cases in which there
is split physical custody, i.e.,
each parent has physical custody
of one or more children.
2) Visitation
These guidelines
recognize that the best environment
for raising children is the two-biological-parent
family. Children are best served
by enjoying the society and companionship
of both parents to the greatest
extent possible. In order to encourage
non-custodial parent involvement,
the court may adjust the amount
of child support beyond the 2
percent range (see Basic Order,
Section III A) to account for
extraordinary travel-related expenses
incurred by the non-custodial
parent.
F.
AGE OF CHILDREN
Delete this section.
H.
ATTRIBUTION OF INCOME
Delete this section.
J.
EXPENSES OF SUBSEQUENT FAMILIES
Expenses of a subsequent
family may be used as a defense to
a request to modify an order seeking
an increase in the existing order
but such expenses should not be considered
a reason to decrease existing orders.
...
Replace this
sentence with:
...
Expenses of a
subsequent family may be used
as a defense to a request to modify
an order seeking a decrease in
the existing order. In such cases,
the award may be decreased within
the discretion of the court depending
upon the circumstances of each
case.
...
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