| This article was first published in the California Divorce Magazine
and are reprinted here with their full permission. |
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The "Deadbeat":
Myths & Realities
We've all read the dismal stories about
ex-spouses who default on their support payments. But has anyone thought to ask why these
people aren't paying?
By Radmila Avramovic & Diana Shepherd
The headline reads: "Deadbeat Dads/Moms." The article then goes on to inform you
of how they refuse to pay child support and how they live in luxury while their children
go without food, clothing, and the bare necessities to live. Is this depiction accurate?
If so, how often does it happen? And -- perhaps most importantly -- why does it
happen?
Although the answers to these questions will vary depending
on the situation, it does appear that the majority of so-called "deadbeats"
default on their support payments for one of two reasons: they can't afford to pay them,
or they have little or no contact with their children and the parental bond has eroded.
According to Lawrence Bloom, an attorney with offices in New York and New Jersey and an
advisory board member for Parental Rights, the non-custodial parent simply can't afford it
in most cases. "They have new obligations, and they're doing the best they can,"
says Bloom. "The court based the child support on the two jobs he was working, and
now, due to a new wife or medical reasons, he can't work the second job."
Dianna Thompson, executive director of the American
Coalition for Fathers & Children (ACFC), agrees. "In some cases, child support is
set unrealistically high. Child support can be based on a capacity to earn or on imputed
income rather than on actual earnings. Non-payment of child support is not always willful,
as some are inclined to believe. There will always be unforeseen circumstances affecting a
family's financial stability, such as job loss, illness, injuries, or disabilities that
can happen to any family whether it's intact or not."
The Custody Link
Statistically, payment of child support is linked to
custody and/or frequent visitations. The most recent US Census Bureau data shows that
fathers with joint custody pay their child support 90% of the time; fathers with
visitation pay theirs 79.1% of the time; and fathers with neither joint custody nor
visitation pay support only 44% of the time. These statistics point to the second reason
why most non-custodial parents don't pay child support.
David Wildstein, a Fellow of the American Academy of
Matrimonial Lawyers (AAML) and chair of the family law department of Wilentz, Goldman and
Spitzer in New Jersey, says: "Some people default to retaliate because they're not
getting visitation -- or the type of visitation -- they want." Legally, child support
and custody are always treated separately, but non-custodial parents will try to link
them. Kay Kullen, a spokeswoman for the National Child Support Enforcement Association,
adds: "Child support agencies have no legal jurisdiction over enforcement of
visitation or custody. However, each state child support agency has instituted access and
visitation programs that link parents to resources that can assist in the resolution of
visitation issues."
Most judges find it easier to make a decision based on
finances (child support) rather than on emotional issues (custody/visitation).
"Courts have trouble enforcing visitation rights because it's so easy to argue that
'he or she was abusive' or 'the children are afraid of him or her' to explain why the
schedule wasn't honored," says Brian Muldoon, a mediator and the author of The
Heart of Conflict. Parenting issues can be emotional, risky, and complicated for a
judge to wade through. "Money is much easier: either it was paid or it wasn't. And it
can take months for a court to rule on parenting issues (with the appointment of experts,
and so forth), while non-payment of support can be decided in minutes."
Separating The Issues
Although some divorcing parents try to combine the two
issues, the law says that child support and access are independent covenants. And rightly
so: otherwise, an abusive parent could refuse to pay support unless the custodial parent
allowed the children to spend time with him or her.
Gene is a 35-year-old man who has been wrangling with his
ex-wife about child support for and access to their eight-year-old daughter, Katy, for the
past three years. "I'm in and out of court all the time," he says bitterly.
"I've already spent more on legal fees than I would have had to spend to support Katy
to age 18 -- about $200,000." Gene stopped paying child support 15 months after his
ex, Mary, stopped allowing him to see their daughter. "She hauls me into court
regarding payment, and I haul her into court regarding access. I was a great father -- she
denies access only to yank my chain. Do you really think it's in Katy's best interests
that she grow up without knowing her father?"
Probably not, but is it in her best interests to grow up
without adequate financial support? Studies show that the children who adjust best to
divorce are those who remain in close contact with both parents, as long as those
parents are not in constant conflict. Assuming that Gene and Mary can agree to resolve
their issues with each other -- through counseling or mediation, for instance -- Gene is
correct in thinking that it would be in Katy's best interests to have regular, positive
contact with her father. But until that happens, Gene must separate his anger at Mary from
his obligations to Katy and start making child-support payments again.
Old arguments, old hurts, and anger from the past can cause
couples to behave like Gene and Mary, each of whom is completely uninterested in trying to
see things from the other's point of view. Each would rather spend the next decade
fighting in court than admit any responsibility for creating and maintaining the deadlock
they're in now.
Even though child support and access are independent
covenants, disgruntled custodial and non-custodial parents do have a few avenues to
help them resolve their disputes. In 1997, funds were allocated to all 50 states, the
District of Columbia, and territories for a new grant program as part of the Child Support
Enforcement (CSE) program. Activities include mediation, counseling, education,
development of parenting plans, visitation enforcement, and development of guidelines for
visitation and alternative custody arrangements.
How Is The Money Spent?
The resentment, hurt, and mistrust generated by an
acrimonious divorce can cause reluctance or refusal to pay spousal or child support.
Sometimes, the payer believes the support is being spent frivolously or that it isn't
really being used for the kids. How the money is spent is a frequently asked question.
Liz does pay her child support for their two kids to her
ex-husband, Joe, but she's getting increasingly upset about the way he seems to be
spending it. "Last year, he took trips to the Caribbean and Europe, and our children
are walking around looking like street urchins, with ragged and ill-fitting clothes and
sneakers that are more hole than shoe," she fumes. "When they come to visit me,
I end up buying them clothes and toiletries even though I'm now on a very limited
budget." Liz thinks it's adding insult to injury that she's footing the bill for her
ex to live "the good life" while their children do without, and she has
considered withholding support until Joe proves to her that her money is being spent on
the children.
"But how could I face my kids if I stopped paying for
them?" she asks. Liz, who owns and runs a small retail business, works too many hours
to have her kids on a full-time basis. But she has recently begun to examine her options
more closely to see if there's any way that she could have primary custody and still be
able to support her family. "Until then, I just have to come up with coping
strategies such as getting good-quality hand-me-downs from my sister's kids, and keeping
most of these clothes at my apartment so my kids will have something decent to wear when
they're with me."
Parents like Liz feel it's wrong that the courts are only
interested in whether or not support is paid and not in how it's spent. There are no state
laws that require an accounting of how child support is being spent. People become angry
or upset when they see no evidence that their child-support payments are being spent on
their children, and this sometimes causes them to start withholding payments. Unlike Liz,
some parents use this strategy in an attempt to force the custodial parent to start
spending money on the kids.
Aside from paying child support, a non-custodial parent who
has regular access to his or her kids will often provide non-cash support. This includes
buying birthday gifts; taking their children on holidays; buying them clothes, food and
groceries; paying partial medical expenses and or child care expenses; and summer-camp
fees.
Resolving Support Conflict
Going to court isn't the only way to resolve disputes about
support or visitations. Before litigating, you should "consider a mediation session
to discuss what the problem is," suggests Carol Butler, Ph.D., a mediator and
therapist in New York. However, mediation can be very difficult if someone is looking for
revenge or is simply being vindictive. "If there's a real emotional problem, then the
legal way may be the only option," Butler says.
Improving the lines of communication and learning to
cooperate with your ex will increase the odds of receiving your child-support.
"Fostering a spirit of cooperation with your ex means laying down your weapons in the
war of divorce in order to protect your children," advise Julie Ross and Judy
Corcoran in their book Joint Custody with a Jerk. "It means that you stop
being reactive and start being proactive... No matter what your feelings are, your
children will be better off if you keep them as your central focus and work diligently at
keeping the parenting relationship civil and cooperative."
What Can You Do?
If your ex is employed and can afford to pay support, but
"forgets" or simply fails to make regular payments, Wildstein suggests you
consider a wage garnishment, which is an automatic deduction from your ex's wages. Other
legal solutions include collecting child-support payments from your ex's income tax
refunds, or having his/her driver's license revoked.
"If you find you can't pay, you may have to ask to pay
a lower amount," Bloom says. "You'll need to have a good reason why you can't
pay, however, such as a wife who can't work because of a medical condition, or that the
amount of support was artificially high because the husband temporarily had a second job
-- these are good reasons.
The Bottom Line
"A child raised without adequate support is at a
significant disadvantage in life," writes Judge James W. Stewart in his book The
Child Custody Book. "Inadequate schools, poor health care, and a social
environment in which the values of education and achievement will take a back seat to the
tasks of obtaining food, shelter, and safety. An economically disadvantaged child will be
far less likely to attend college, and the chances that he will drop out of school or
engage in criminal conduct as a teenager or young adult are dramatically increased."
Quick Facts
- Custodial mothers represent 85.1% of all custodial parents.
- Only 14.9% of fathers have custody of their children.
- Custodial mothers are more likely to have an agreement or to
be awarded child support than custodial fathers.
- Custodial fathers are less likely to receive child-support
payments than mothers.
- 56.3% of custodial parents had some sort of agreement or
award for their children.
- 32.4% of custodial parents didn't feel they needed a legal
agreement.
- Median family income for custodial mothers is $21,440; for
custodial fathers, it's $30,023.
- The proportion of custodial parents and their children
living in poverty is 28.9%, which has dropped from 33.3% in 1993. Today, custodial parents
are more likely to have full-time jobs and the likelihood of participating in a public
assistance program, which partially accounts for the drop in poverty.
- 66% of fathers lack the financial resources to pay the
allotted payment of child support.
- 40% of mothers reported that they had interfered with the
fathers' visitation to punish the ex-spouse.
- 43.8% of non-custodial parents provided health insurance as
part of the agreement or award.
- The standard of living after divorce dropped 28% for women
and 7% for men.
- More than 1.5 million children -- nearly 2.5% of all US
children -- undergo the experience of parents separating or getting divorced every year.
Sources: US Census Bureau, US Government Accounting Office,
American Sociological Review, American Journal of Orthopsychiatry,
Washington DC: Child Trends
Child Support & Access
Resources
Here are some organizations that can assist you with child
support or visitation issues.
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