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
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)
"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
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
...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
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"
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
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
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,
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,
Garfinkel, Irwin, and S. McLanahan, 1986, Single Mothers and Their
Children, A New American Dilemma, The Urban Inst Press, Washington,
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,
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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.
Krause, Harry 1989, Child Support Reassessed: Limits of Private
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Lazear, Edward P., and Robert T. Michael, 1988, Allocation of Income
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child support?, Minnesota Family Law Journal.
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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
Wallerstein, J.S., and D.S. Huntington, 1983, Bread and Roses:
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