Family Law Prof Blog

The Recession's Impact on Child Support

States across the country are reporting substantially increased child support litigation.  Cash-strapped obligors are seeking reductions in child support awards for employment difficulities and child support arrearages are increasing rapidly.  The negative impact on children supported by those awards is obvious.  But even courts are feeling the pain of the flood of this litigation.  Many of the obligors seeking relief cannot afford legal representation and courts are struggling to find creative solutions to managing the burden of the volume of child support modification suits.  Read more about the problem here and here.

AC

CFP: Children and the Law Junior Faculty Workshop Call for Papers

Children and the Law Junior Faculty Workshop

July 16 -17, 2009

The Frances Lewis Law Center at Washington & Lee University is sponsoring a workshop for junior scholars working on legal issues related to children. The workshop will be held this summer on the campus of Washington & Lee in Lexington, Virginia.
More info on Feminist Law Professors blog here.

RR

Political Platforms on Family Law Issues

The political parties are in the process of drafting their national party platforms for the 2008 election and, as expected, there is some attention to family law issues.

The draft 2008 Democratic National Platform is interesting both for what it says and what it does not say.  A section on "fatherhood" states that "too many fathers are missing."  The party supports "removing tax penalties on married families and expanding maternity and paternity benefits," as well as rewarding those "who are responsibly supporting their children by giving them a tax credit" and will "crack down on men who avoid child support payments" and "ensure that payments go directly to families instead of bureaucracies." (page 44 lines 34-44).  There is a section on "empowering families" with an extensive discussion of policies on health care, employment, "work and family," and women.  Of particular interest is a pledge to "expand the Family and Medical Leave Act" to "enable workers to take leave to care for an elderly parent, address domestic violence, or attend a parent-teacher conference," and to work with states to make leave paid rather than unpaid.  (page 10 lines 31-35).  In a subsection entitled "Choice" the platform provides: "The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman's right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right."  There is also strong support for "access to affordable family planning services and comprehensive age-appropriate sex education," and a mention of "caring adoption programs." (page 45 line 19-31).  There is also this single line: "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us."  (page 47 lines 8-9).

The draft of the 2008 Democratic National Platform, in pdf format from CNN/TIME, is available here.

The Republican National Platform Committee is apparently still in progress - - - the committee is soliciting input for its 2008 platform here.

The draft of the 2008 Green Party Platform includes a section on youth, a call for equality regardless of sexual orientation and gender identity in civil marriage and child custody, a section on protecting abortion and contraception (specifically including the "morning after pill") and is available here.

The 2008 Constitution Party Platform calls for to the government to "secure and to safeguard the lives of the pre-born."  The platform opposes "government funding of 'partner' benefits for unmarried individuals," "any legal recognition of homosexual unions," and "efforts to legalize adoption of children by homosexual singles or couples," and is available here.

(RR  August 16, 2008)

Case Law Development: Termination of Parental Rights Does not End Child Support Obligation

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted.  The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.”   The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless."  The court rejected the appeals court’s  interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.

Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.

Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)

Case Law Development: Default Administrative Child Support Order Does not Establish Paternity Sufficient to Support Criminal Non-Support Action

The Supreme Court of Missouri has issued a number of decisions this past year relating to paternity -- requiring greater process to prove or disprove paternity.  In its latest decision, the court concluded that the state's child support administrative system was not sufficient process to establish paternity when the order was by default.  The court held that, the state failed in its burden to prove the duty to support one's child where there was no final judgment of paternity by a circuit court and, thus, no "legal process" that judicially determined defendant's parentage. In the absence of a circuit court judgment, defendant was not prevented from collaterally attacking the administrative order used to establish his obligation of support that, in turn, served as the basis for this criminal prosecution. Because the State failed to prove that the child had been legitimated by "legal process," the judgment was reversed, and the case was remanded.

State v. Salazar, 236 S.W.3d 644 (October 30, 2007)
Opinion online (last visited November 9, 2008 bgf)

Case Law Development: What is Proper Documentation of College Enrollment for Purposes of Post-Majority Child Support

Missouri is one of the few states that requires post-majority child support for children attending college.  The statutory scheme has been amended a number of times in recent years to provide more detailed requirements regarding notice of enrollment to the obligor parent, minimum credit hour enrollments, and the like.

In a case of first impression, the Missouri Court of Appeals has interpreted one of those statutory requirements: that the child provide each parent with a "transcript or similar official document."  The court held that a print out of courses, credits and grades from a college's web-based system, while not an "official transcript" sufficiently met the meaning of "transcript" in the statute to require Mother to pay child support. 

Waddington v. Cox, Mo. App. January 2, 2008
Opinion online (last visited January 8, 2008 bgf)

For a chart comparing state approaches to post-majority support for college students, see the National Conference of State Legislatures' 2005 Summary

Passport Denials as Effective Tool in Collecting Delinquent Child Support

The Associated Press reports that new passport requirements that have complicated travel this summer also have uncovered untold numbers of child support scofflaws and forced them to pay millions.  The State Department denies passports to noncustodial parents who owe more than $2,500 in child support. Once the parents make good on their debts, they can reapply for passports.

Read the New York Times article (last visited August 15, 2007 bgf)

Legislative Update: Bills to Allow Disestablishment of Paternity

Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs.  The text of the bill.   See the CBS4Denver website for a news video on the bill. 

According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.

See this Time magazine article on the national movement to pass similar legislation.

(all links last visited February 15, 2007 bgf)

Case Law Development: Liability for Child Support Arrearages When Paternity is Disproven

The Arkansas Surpeme Court held recently that  "an individual who was an adjudicated father or who acknowledged paternity, but was later determined not to be the father, shall have the previous finding or establishment of paternity set aside and he shall be relieved of any future obligation of support."  The court refused, however, to find that arrearages could also be set aside.  Here a default judgment had been obtained against the alleged father, who never paid any child support.  When he was brought before the court on contempt charges, he requested a paternity test.  Upon finding that the test excluded him as the father, the court discharged any future child support but held that the statutory language was clear and did not permit discharging past child support judgments.

A dissenting judge argues that "The decision today arguably reaches a grossly unfair result by saddling a person with a past-due support debt when that person has never claimed to be the father of the child and when he has been found, after paternity tests, not to be the biological father." and urges legislative clarification.

ARKANSAS OFFICE OF CHILD SUPPORT ENFORCEMENT V. PARKER,
2007 Ark. LEXIS 28 (January 11, 2007)
Opinion on the web (last visited January 15, 2006 bgf)

Case Law Development: Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments

The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments.  The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered. As the court observed:

... the trial court determined that the father owed accrued arrearages in the amount of $45,141.51, plus interest.... if the father were able to make only monthly $100 installment payments to reduce the owed arrearages, he would be paying those installments for over 37 years; that computation does not include the additional interest that will accrue during the repayment period, and the father will therefore most likely never be able to retire the total amount of the arrearages during his lifetime. In addition, the trial court also modified the divorce judgment to relieve the father from maintaining a life-insurance policy to benefit the parties' children in the event of his death before they reach the age of majority.

The court reversed, directing the trial court to remove the restriction on mother's ability to seek to collect on the arrearage judgment through standard debt-collection processes.

Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006 bgf)

Case Law Development: Father Trying to Make a Federal Case Out of His Child Support Orders Faces Immunities, and State Action Doctine Bars

Ordinarily when a federal court hears a case that constitutes, in essence, an attempt to collaterally attack a family law order, it invokes abstention doctrines.  (See last year's Family Law Prof Blog post on the subject) In a recent case before the United States District Court for the District of Delaware, the court instead analyzed each of a father's numerous causes of action under federal statutes (civil rights, RICO, etc.) and pendent state-law claims (intentional infliction of emotional distress) brought against state judges, child support enforcement attorneys, court-appointed mediators, judicial administrators, the governor and his wife's attorney (I may have missed some there but you get the picture). 

The opinion is a short course in immunities (with the court dismissing numerous defendants under doctrines of sovereign immunity and judicial and quasi-judicial, and prosecutorial immunity).  The analysis of immunity of court-appointed mediators may be especially interesting to some readers.  I found the opinion striking for its extraordinary degree of respectful consideration given to the pro se litigant, as the court carefully examined and then dismissed each of the plaintiff's claims, without any perjorative characterizations of his attempts to seek the court's intervention.

Joynes v. Meconi, 2006 US Dist LEXIS 71296 (September 30, 2006)
Opinion on web (last visited October 8, 2006 bgf)

Case Law Development: Agreements Waiving Child Support Arrearages or Estopping Parents from Asking for Modification if Children Change Residence are Void as against Public Policy

Mother and Father had entered into a child support agreement (incorporated into a decree) that provided that both parties were estopped from seeking to modify child support based on changes in the placement of the children.  The agreement also waived of any of Father's child support arrearages owed to that point.  In this later action, the trial court credited Father for the time that one of the sons had lived with him. Mother argued that Father should have been estopped from requesting a credit because of the previous stipulation that child support would not depend on the child's placement.  The trial court held the stipulation void as contrary to public policy because it purported to remove child support issues from the jurisdiction of the courts. The Court of Appeals of Wisconsin affirmed. However, the court, sua sponte, also held that the term in the parties' previous agreement waiving Father's prior arrearages was also void as against public policy. The court remanded for a calculation of arrearages. 

On its decision to void the second part of the agreement sua sponte, the court commented:

[Father] may object that we have reached out to discuss this issue even though neither of the parties addressed it before the circuit court or on appeal. We reject this. This court may consider issues sua sponte in order to correct errors of law. ...This is particularly so where it appears that an agreement is void as contrary to public policy. ... We will not close our eyes to the fact that the agreement [Father]properly insisted is void as against public policy was agreed to in consideration of an interlocking agreement forgiving [Father's] past arrearage, itself a violation of public policy.

Motte v. Motte, 2006 Wisc. App. LEXIS 880  (September 27, 2006)
Opinion on the web (last visited September 28, 2006 bgf)

Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees

The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"   

The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man).  When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey.  The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses.  Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.

However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding.  The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs.  Mother sought to have the first award characterized  as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support. 

The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do."  Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.

Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award.  That error required reversal and remand.

While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.

So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.

Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)

Case Law Development: Emancipation May Not Be Based Solely on Poor College Grades

A New Jersey trial court ordered that a 20-year-old daughter would be emancipated if she did not earn a
"B" average in college that semester.  In the court's words, " "Whatever she finishes this semester with, if it's a B average, [Father] pays. If it's not a B average, he's off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa."  When daughter's semester did not meet the grade standard imposed, the trial court ordered a termination of child support.  The court of appeals reversed, concluding that "Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable." The appellate court also found that the trial judge had failed to make adequate findings as to the father's ability to contribute to his daughter's college expenses.

Keno v. Pilgrim, (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

Case Law Development: Child Support When A Child is Incarcerated

The Alabama Supreme Court rejected a father's argument that he should be relieved of child support obligations after his son had been sentenced to life in prison for murder.  Alabama's child support statute does not include a child's incarcertaion as a basis for emancipation, but the Alabama courts have found that "emancipation in fact" may provide a basis for terminating child support.  Nonetheless, the court here found that little legal or factual support for father's argument in this case.  The court noted that, while opinions from some states have suggested that a lengthy incarceration may provide a basis for finding a child emancipated, no court had yet done so.  Moreover, since Mother was continuing to provide financial support for the child (depositing money into his prison account), he was not emancipated.  Quoting a Missouri court opinion on the same subject,  Sutton v. Schwartz, 860 S.W.2d 833, 835 (Mo. Ct. App. 1993), the court commented that "[i]f a custodial parent is willing to help a child with behavioral problems, chemical dependency problems, and criminal convictions, the courts should not hinder the providing of such help by eliminating financial assistance by the non-custodial parent."

However, the court did find that the child's incarceration might provide a basis for a modification of child support and remanded for the trial court's consideration of that issue.

Finally, the court found that the chancellor abused his discretion in awarding Mother $5,000.00 in attorney's fees incurred in the defense of the child's criminal case.  The court found that these were not properly considered "extraordinary expenses" of supporting a child.

Edmonds v. Sharon Edmonds & Dep't of Human Servs., 2006 Miss. LEXIS 383 (August 3, 2006) bgf

Supreme Court of Canada Requires Disclosure of Increased Income by Child Support Obligors

The Supreme Court stopped short of ordering a duty to disclose salary increases automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike. ''Parents have an obligation to support their children in a manner commensurate with their income and this obligation and the children's right to support exists independently of any statute or court order,'' wrote Justice Michel Bastarache. The unanimous decision, which could affect hundreds of thousands of families, will mean a ''huge change'' in the way the child support business is conducted in Canada, predicted lawyer Deidre Smith.

The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up, or they could face sizable retroactive child support bills. 

Continue reading the story by JaniceTibbetts, CanWest News Service (last visited August 1, 2006 bgf)

Michigan Attorney General Reports Collecting More than $26 Million in Child Support

The Michigan Attorney General reports that his office has collected more than $26 million in child support since 2003 involving more than 3,000 children. He says that his child support enforcement program “focuses on prosecuting parents who have the ability to pay child support but choose not to.”  Source.  WWMT-TV, Wwmt.com. For the complete story, please click here (last visited June 11, 2006, reo).

Case Law Development: Income Withholding Not Subject to Limitations Period for Actions to Enforce Judgments

The Minnesota Supreme Court holds that, because administrative income withholding proceedings initiated by a county to collect child support arrearages are not judicial proceedings, they also are not "actions" within the meaning of the Minnesota statute providing a 10-year limitation period on actions to enforce a judgment.

Gerber v. Gerber, 2006 Minn. LEXIS 338 (June 1, 2006) Opinion on the web (last visited June 6, 2006 bgf)

Newfoundland and Labrador Enact New Child Support Enforcement law

The provincial government of Newfoundland and Labrador has passed a new law that will put more teeth behind the enforcement of child and spousal support orders. The new law allows the province to suspend drivers' licenses or revoke a big- game license if a child support obligor is not making adequate child support payments.  Source.  Cbc.ca/n/story. For the complete story, please click here (last visited May 24, 2006, reo).

Florida Bill Releasing Child Support Obligation Because of DNA Test Goes to Governor for Approval

Men in Florida who have been paying child support, but can show they are not the biological father of a child through a DNA test, may be relieved of their support obligation if  Governor Jeb Bush signs a bill sent to him this week by the Florida Legislature.  Florida law currently requires that once child support is established, the obligation continues until the child's 18th birthday, even if the obligor is not the biological father.  Source. Stephen D. Price, Tallahassee.com. Please click here for the complete story (last visited May 20, 2006, reo).