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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Child Support Orders: A Perspective on Reform
Irwin Garfinkel Marygold S. Melli John G. Robertson

Endnotes

  1. Child support is the term used to describe the mixture of private and public income transfers to children who live apart from a parent. Private child support is paid by the nonresident parent, that is, the parent who does not live with the child; public child support is paid by the government.
  2. U.S. Bureau of the Census. Household and family characteristics, 1991. Current Population Reports, Series P-20, No. 458. Washington, DC: U.S. Government Printing Office, 1992.
  3. Bumpass, L. Children and marital disruption: A replication and update. Demography (February 1984) 21:71–82.
  4. Noncustodial is the traditional term used to describe the parent who does not live with the child. It may be more accurate to call that parent the nonresident parent, particularly now that all states authorize joint legal custody which enables a parent, who does not live with the child, to share legal custody with the resident parent.
  5. White, K.R., and Stone, R.T. A study of alimony and child support rulings with some recommendations. Family Law Quarterly (1976) 10:83; Yee, L.M. What really happens in child support cases: An empirical study of the establishment and enforcement of child support awards in the Denver District Court. Denver Law Quarterly (1979) 57:21–68.
  6. Garfinkel, I., and Oellerich, D. Noncustodial fathers' ability to pay child support. Demography (May 1989) 26:219–33.
  7. Social Security Act, §402(a)(10) effective July 1, 1952, 64 Stat. 550 (1950). For information on legislative history see U.S. Department of Health and Human Services. Social Security bulletin, annual statistical supplement 1982. Washington, DC: U.S. Government Printing Office, 1983, p. 51. For analysis of child support reform, see Garfinkel, I. The role of child support in antipoverty policy. Institute for Research on Poverty, Discussion Paper No. 713–82. Madison: University of Wisconsin, 1982. See also Katz, S.N. A historical perspective on child support laws in the United States. In The parental child-support obligation. J. Cassety, ed. Lexington, MA: Lexington Books, 1983.
  8. Social Security Amendments of 1974, Pub. L. No. 93-647 (codified as 42 U.S.C. §651 et seq.).
  9. Garfinkel, I. Assuring child support: An extension of Social Security. New York: Russell Sage Foundation, 1992, pp. 42-45; and Cassety, J., ed. The parental child-support obligation. Lexington, MA: Lexington Books, 1983.
  10. Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378 (codified as 42 U.S.C. §§667).
  11. Family Support Act of 1988, Pub. L. No. 100-485 (codified as 42 U.S.C. 667(b)(2)).
  12. U.S. Bureau of the Census. Child support and alimony: 1978. Current Population Reports, Series P-23, No. 112. Washington, DC: U.S. Government Printing Office, 1981; U.S. Bureau of the Census. Child support and alimony, 1989. Current Population Reports, Series P-60, No. 173. Washington, DC: U.S. Government Printing Office, 1991.
  13. See note no. 9, Garfinkel.
  14. Robins, P.K. Why child support award levels declined from 1978 to 1985. Journal of Human Resources (1991) 27:362–79.
  15. The formula used by four states is known as the Melson formula, after Judge Edward Melson, Jr., of Delaware, who developed it. It is based on the premise that parents should be allowed to meet their own basic needs, and then all remaining income is to be shared with their children. Under the Melson formula, a basic needs amount is set for each parent and child. The amount of each parent's needs, called a self-support reserve, is subtracted from that parent's income to yield what that parent has available for child support. Then the amount of the child's basic needs is prorated between the parents based on the income of each. Each parent's share of the child's basic needs is then subtracted from that parent's income to determine the amount of "discretionary income." A percentage of any income above these basic needs is added to the support, thus enabling children to share in the living standards of their parents above the basic needs level. As with the other formulas, the principal caretaker parent's share of the support is assumed to be provided in the course of care. The Melson formula is favorably discussed in Takas, M. Improving child support guidelines: Can simple formulas address complex families? Family Law Quarterly (Fall 1992) 26:171–94.
  16. For a more detailed comparison of the income shares and percentage of income guidelines, see Garfinkel, I., and Melli, M. The use of normative standards in family law decisions: Developing mathematic standards for child support. Family Law Quarterly (Summer 1990) 24:157–78
  17. See note no. 16, Garfinkel and Melli. See also Williams, R.G. Advisory Panel on Child Support Guidelines. Development of guidelines for child support orders: Advisory Panel recommendations and final report to the U.S. Office of Child Support Enforcement. Williamsburg, VA: National Center for State Courts, September 1987.
  18. The percentages in the income shares guidelines were derived from estimates of expenditures on children developed by Thomas Espenshade in Espenshade, T. Investing in children: New estimates of parental expenditures. Washington, DC: Urban Institute Press, 1984. The percentages in the percentage of income guidelines were derived from a review of more than one dozen studies of expenditures on children, including Espenshade's conducted by Jacques van der Gaag. See van der Gaag, J. On measuring the cost of children. In Child support: Weaknesses of the old and features of a proposed new system. I. Garfinkel and M. Melli, eds. Institute for Research on Poverty, Special Report No. 32A. Madison: University of Wisconsin, 1982, pp. 1–40.
  19. Bassi, L., Aron, L., Barnow, B.S., and Pande, A. Estimates of expenditures on children and child support guidelines. Report submitted to the Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services, by Lewin/ICF, October 1990. None of the studies of expenditures on children provides estimates for very wealthy families—those having incomes of more than $100,000—because the samples of such families are too small in the surveys on which the studies are based.
  20. See note no. 17, Williams.
  21. See note no. 16, Garfinkel and Melli.
  22. For a discussion of how states apply child support guidelines to families in poverty, see Families in poverty: Women's Legal Defense Fund report card on state child support guidelines. Washington, DC: Women's Legal Defense Fund. In press.
  23. See note no. 19, Bassi, Aron, Barnow, and Pande.
  24. For example, this procedure, with some qualifications, is advocated by the Women's Legal Defense Fund. See Child care: Women's Legal Defense Fund report card on state child support guidelines. Washington, DC: Women's Legal Defense Fund. In press.
  25. See for example, Haynes, M.C. Statement. In Written comments on the Downey Hyde Child Support Enforcement and Assurance proposal. December 18, 1992. Washington, DC: U.S. Government Printing Office, 1993.
  26. Most states do not define the term "extraordinary medical expenses." However, one state defines them as "uninsured expenses in excess of $100 for a single illness or condition. Extraordinary medical expenses include, but are not limited to, such costs as are reasonably necessary for orthodonture, dental treatment, asthma treatments, physical therapy and any uninsured chronic health problem. At the discretion of the court, professional counseling or psychiatric therapy for diagnosed mental disorders may also be considered as an extraordinary medical expense." Munsterman, J.T., and Grimm, C.B. Colorado child support guidelines III(F). Child support guidelines: A compendium. Williamsburg, VA: National Center for State Courts, 1991. Some states refer to uninsured medical expenses; see also Munsterman and Grimm, Arizona child support guidelines.
  27. See child support guidelines for Colorado and Arizona, in note no. 26, Munsterman and Grimm.
  28. See for example, Nev. Stats. §125.B.080 7, in note no. 26, Munsterman and Grimm.
  29. See for example, D.C. Code 16-916.1 (M), which provides that the amount of the award may be varied where there is no medical insurance, it does not cover the item, or there is a high deductible; Georgia Stats. 19-6-15(c), in note no. 26, Munsterman and Grimm.
  30. Wis. Stat. §767.25 (4m) (b) (1991–92).
  31. Gordon, A.R. Implementation of the income withholding and medical support provisions of the Family Support Act. In Child support and child well-being. I. Garfinkel, S. McLanahan, and P. Robins, eds. Washington, DC: Urban Institute Press. In press.
  32. In the early and mid-1970s, public policy determined that a person old enough to be drafted was also old enough to vote. The 26th Amendment to the U.S. Constitution providing that "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States, or by any State on account of age" was drafted and ratified by the states. In response, states provided for the right to vote at 18 in state and local elections, usually by reducing the age of majority from 21 to 18. Apparently, little thought was given to what has turned out to be a troublesome side effect. Because most states tie the duration of the duty to support to the age of majority, the duty to support now ends at 18 with the result that dependent children still in high school are no longer entitled to child support from the nonresident parent.
  33. Clark, Jr., H.H. The law of domestic relations in the United States. Student ed., 2d ed. St. Paul, MN: West, 1988, p. 716.
  34. The U.S. Commission on Interstate Child Support has recommended that Congress require the states to enact such a law. U.S. Commission on Interstate Child Support. Supporting our children: A blueprint for reform. Report to Congress. Washington, DC: U.S. Government Printing Office, 1992.
  35. To require divorced parents to provide such support strikes some as unfair and, perhaps, a denial of equal protection. However, the courts have tended to view children of divorced parents as situated differently from children in intact families in this regard. "The legislature could find . . . that most parents who remain married to each other support their children through college years. . . .On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved . . . " In re Marriage of Urban, 293 N.W. 2d 198, 202 (Iowa 1980). See also, Neudecker v. Neudecker, 577 N.E. 2d 960 (Ind. 1991).
  36. See note no. 34, U.S. Commission on Interstate Child Support. The commission recommends that Congress require states to have legislation granting courts discretionary power to order child support, payable to the adult child as a rebuttable presumption, at least to age 22 for a child who is enrolled in an accredited postsecondary or vocational school or college and who is a student in good standing.
  37. See note no. 19, Bassi, Aron, Barnow, and Pande, p. 108.
  38. It has been estimated that 75% of divorced persons remarry. Takas, M. The treatment of multiple family cases under state child support guidelines 2. Washington, DC: U.S. Department of Health and Human Services, 1991.
  39. See note no. 38, Takas, p. 23.
  40. See note no. 38, Takas, pp. 23–24.
  41. See note no. 38, Takas, p. 26.
  42. This issue is the one most commonly addressed in state formulas when there is a subsequent family. Takas lists 40 states as authorizing the deduction of the prior child support award before calculating support for subsequent children. See note no. 38, Takas, Table A, pp. 14–15.
  43. Commonwealth ex rel. Wasiolek v. Wasiolek, 380 A2d 400 (Pa. Super 1977).
  44. Roberts v. Roberts, 496 N.W. 2d 210 (Wis. Ct. App. 1992). See also, Atkinson v. Atkinson (Superior Court of Pennsylvania, No. 01570 Pittsburgh, 1991). Dissenting opinion.
  45. Maccoby, E.E., and Mnookin, R.H. Dividing the child: Social and legal dilemmas of custody. Cambridge, MA: Harvard University Press, 1992.
  46. Normal visitation is probably about 20% of the calendar year consisting of every other weekend, plus a month during the summer and some holidays.
  47. One reason for not reducing child support until fairly high levels of time sharing are reached is that the costs to the primary parent are not reduced much by low levels of time shared. That parent still has the burden of providing housing for a child whose primary residence is with that parent. Melli, M., and Brown, P. Child support. In Shared physical custody in Wisconsin: Present guidelines and possible alternatives. Report prepared by the Institute for Research on Poverty for the Wisconsin Department of Health and Social Service. Madison: University of Wisconsin, December 1992.
  48. See note no. 15, Takas, p. 171. The most popular version of the offset formula is one that can be described as offset plus. Under this formula, the child support amount is increased by a factor of 1.35 or 1.5. The rationale behind this increase is that it recognizes the additional costs of shared parenting. However, this approach to the increased costs of shared parenting does not recognize the source of many of those costs and the distribution of expenses between parents. The increase in expenses in shared parenting comes primarily from the need to duplicate housing and other facilities for a child who now resides some of the time in the home of the nonprimary parent. The housing costs for the primary parent have been factored into the original child support payment paid by the nonprimary parent. Therefore, increasing the amount of the child support award to compensate for the need of the nonprimary parent to duplicate those housing facilities results in the nonprimary parent's paying twice for housing and related expenses. Increasing the child support order with the offset plus formula has one desirable result: it reduces the gap between support at the threshold and immediately above the threshold. This may explain why six states—Alaska, Colorado, Maryland, North Carolina, Oregon, and Vermont—and the District of Columbia use the offset formula with this modification. See also note no. 38, Takas.
  49. This approach is used in Hawaii. See note no. 47, Melli and Brown.
  50. Uniform Marriage and Divorce Act 1979; Sec. 316, 9A Uniform Laws Annotated.
  51. Williams, R.G. Implementation of the child support provisions of the family support act: Child support guidelines, updating of awards, and routine income withholding. In Child support and child well-being. I. Garfinkel, S. McLanahan, and P.K. Robins, eds. Washington, DC: Urban Institute Press. In press.
  52. Among the small proportion of awards that were modified, most were modified upward, resulting in a 60% to 144% overall increase in award levels. Despite the cumbersome and costly nature of the process, the data suggest that it is quite cost-effective and reduces welfare dependency by a small amount.
  53. Williams suggests a number of changes in laws and practices to reduce the cost of periodically reviewing and updating awards.
  54. Bartfeld, J., and Garfinkel, I. Utilization and effects on payments of percentage expressed child support orders. Institute for Research on Poverty, Special Report No. 55. Madison: University of Wisconsin, July 1992.
  55. See note no. 6, Garfinkel and Oellerich, Table 3. Because most nonresident parents are men, this analysis focused on fathers.
  56. Some studies find that the proportion of income spent on children declines as income increases while others find that the proportion is constant. None find that the proportion increases.
  57. See Garfinkel, I., and Melli, M., eds. Child support: Weaknesses of the old and features of a proposed new system. Institute for Research on Poverty, Special Report No. 32A. Madison: University of Wisconsin, 1982; see note no. 9, Garfinkel. For other proposals, see note no. 34, U.S. Commission on Interstate Child Support.
  58. Melli, M.S., and Bartfeld, J. Use of the Wisconsin percentage of income standard to set child support: Experience in twenty counties, September 1987December 1989. Madison: Institute for Research on Poverty, University of Wisconsin, June 1991.
  59. There has been little exploration of the reasons that departures from the guideline amount are below rather than above the guideline. However, an examination of specific factors listed in statutes or rules as a basis for departing from the guideline indicates that these policy directives are aimed more at decreasing than increasing the child support award. See note no. 58, Melli and Bartfeld.
  60. Moffit, R. Incentive effects of the U.S. welfare system: A review. Journal of Economic Literature (1992) 30:1–61.
  61. American Law Institute, Principles of Family Dissolution, Preliminary Draft No. 3 & 3.07 (1) (d) Comment F (Philadelphia, PA, September 1992).
  62. See note no. 34, U.S. Interstate Commission on Child Support.
  63. See note no. 9, Garfinkel, p. 54, Table 3.1, intermediate run estimates.
  64. See note no. 9, Garfinkel, p. 54, Table 3.1 and p. 142. The estimates assume that the assured benefit increases by $1,000 each for the second and third child and by $500 for each subsequent child.
  65. Garfinkel, I., and McLanahan, S. Single mothers and their children: A new American dilemma. Washington, DC: Urban Institute Press, 1986.
  66. Hamilton, W., Burstein, N., and Moss, D. New York State's child assistance program: Experimentation in incentive based welfare reform. Paper presented at the Association for Public Policy Analysis and Management, 15th Annual Research Conference. Washington, D.C., October 1993.
  67. National Commission on Children. Beyond rhetoric: A new American agenda for children and families. Washington, DC: National Commission on Children, 1991. The Bradley and Rockefeller proposals are in, respectively, Senate Bill 689 and Senate Bill 2237, 103rd Congress. The Downey-Hyde proposal is described in U.S. Congress, House Committee on Ways and Means, Subcommittee on Human Resources. Written comments on the Downey-Hyde Child Support Enforcement and Assurance proposal. December 18, 1992. Washington, DC: U.S. Government Printing Office, 1993.
  68. See note no. 9, Garfinkel, The estimate includes children born out of wedlock as well as children of divorce.
  69. See note no. 67, National Commission on Children.