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

Child Support Orders: Problems with Enforcement
Paula G. Roberts

The Current Debate

There is little disagreement that the child support enforcement system is in need of further revision. Indeed, IV-D clients, advocates, lawyers, state administrators, state officials, federal legislators, and two federal commissions have recommended change. There is consensus on several key issues among all of these groups.78 The areas of agreement are as follows:

 

  1. Paternity should be established as a routine matter at the time of every child's birth. To the maximum extent possible, this should be accomplished through simple nonjudicial processes. If paternity were routinely established, costly adversarial proceedings could be avoided, and more children would have the fundamental prerequisite to obtaining a support award.
  2. There should be a national child support guideline to set and periodically modify support awards. A national guideline would bring greater equity to children and reduce the parent's ability to forum shop for the state with the guideline most favorable to him or her.
  3. Support should be collected primarily through immediate withholding from the obligated parent's wages. An employer reporting system (W-4) should be implemented so that withholding can begin immediately whenever the obligated parent begins work or changes jobs. A procedure of this kind would vastly improve the rate of collection in cases where the obligated parent was a wage earner.
  4. The process for establishing and enforcing orders in interstate cases needs to be overhauled and strengthened. As many cases as possible should be brought in the child's state of residence by greater use of long-arm statutes.
  5. Enforcement of medical support orders must be required, and employers must be authorized to put children on available health insurance plans and facilitate children's use of these services.

There is, however, deep disagreement about how to accomplish these five changes. Some believe that, despite its shortcomings, the existing state-based system can be improved. Others believe that a more radical approach is required. They favor moving some or all aspects of the state system into a national system within the IRS or the Social Security Administration (SSA). This approach is usually referred to as "federalization."

The State-Based Approach

As part of the Family Support Act of 1988, Congress authorized the establishment of the U.S. Commission on Interstate Child Support ("the Commission").79 The 15 members of this Commission are the most vocal proponents of the state-based approach. As articulated in the Commission's Report, their rationale is: " . . . the majority of Commission members was not convinced that the federal government could do a better job than states in establishing and enforcing support. Commission members were concerned about: (1) the loss of creativity at the state and local level, (2) the federalization of one aspect of family law that often arises in the context of other family issues, (3) the existing backlog in federal courts, (4) the lack of an effective federal administrative model, (5) improper identification and distribution of payments, (6) the cost of creating a system that already exists at the state level, and (7) the taking of such a major step prior to evaluating the effects of state automated systems on states' abilities to effectively process cases."80

Therefore, the Commission recommended more than 100 changes in current state law and practice. The vast majority of the changes recommended by the Commission would be accomplished by mandates from the federal government to the states. Yet, even within the Commission, there was disagreement about the desirability of federal mandates.81

Other advocates of the state-based approach are even more adamantly opposed to federal mandates. They would prefer more federal funding and encouragement to states to adopt model legislation (for example, W-4 reporting). This strategy would bring more funding for the states without requiring that they actually improve the system. Many state administrators would also prefer less stringent audit standards so that states would have to pay less attention to compliance with every single federal mandate.82

Moreover, the Commission's recommendations rely heavily on a belief that many of the problems inherent in the state-based model can be addressed by the development of "an integrated, automated network linking all the states to provide quick access to location and income information . . . and a registry of support orders."80 Because federal legislation requires all states to have automated statewide systems by October 1995,83 the Commission envisions that it will be possible to build these systems into an integrated national system.84 Unfortunately, a recent General Accounting Office report suggests that many of the state systems are seriously flawed and will not be functioning on time.85 Moreover, there is some question as to how quickly (if ever) these 54 independently developed automated systems will be able to communicate with one another.

Another cornerstone of the state-based approach is that every state be required to replace its current interstate child support law with the new Uniform Interstate Family Support Act (UIFSA) recently approved by the National Conference of Commissioners on Uniform State Laws. UIFSA contains broad long-arm jurisdiction, authorizes simpler procedures for exchanging information and holding hearings when the parties live in different states, and streamlines implementation of income withholding orders when the noncustodial parent's employer does business in a state other than the custodial parent's.86

The strength of the state-based approach is that it builds on existing good practices and engenders little political controversy among powerful interests such as judges, lawyers, and state legislators and officials. Its weakness is that it rests on the assumption that two totally untested ideas—automation and UIFSA—will radically increase the chances that support enforcement will improve.

Beneath the surface, it also holds a serious tension. Is it any the less "federalization" if Congress requires state legislatures to adopt laws than if Congress federalizes the function altogether? Is the Commission's approach really federalization by a different name? If so, those on the Commission who opposed federal mandates raise a real point. But then one is left simply encouraging states to adopt best practices rather than mandating them. Given the lack of progress under the mandates of the past two decades, isn't this approach tantamount to condemning a large number of the next generation of children living in single-parent families to poverty?

The Federal Approach

In May 1992, Rep. Thomas J. Downey (D-NY) and Rep. Henry J. Hyde (R-IL) drafted a proposal to restructure the existing child support system radically. They would have moved the establishment of paternity, the modification of support orders, and the support enforcement function from the states to the federal government. A new agency located in the IRS or SSA would have taken on these responsibilities in a national, universal system.87 Their proposal was part of a larger scheme which would also encompass a national Child Support Assurance (CSA) system and provide assistance to low-income noncustodial parents to improve their ability to pay support.88 Their proposal garnered accolades from custodial parents and child support advocates and outrage from noncustodial parents, lawyers, and state and local officials.89 Some of this opposition was a genuine response that such radical change was neither feasible nor advisable. Some of it was fear that private lawyers and state workers would lose their jobs in a federalized system. Because Rep. Downey was not reelected, it is unclear whether such an innovative proposal will be introduced again. Rep. Hyde is now focused on the part of the proposal to federalize the collection of support.90

Others supported a somewhat less radical approach to federalization. Under the name the Ad Hoc Committee to Improve Child Support, a gathering of custodial and noncustodial parent groups, child support advocates, as well as some individual IV-D directors, and one member of the U.S. Commission on Interstate Child Support favored a partial federalization of the system and adoption of Child Support Assurance.91 They favored establishing a national registry of all child support orders within the IRS. The IRS would enforce those orders (primarily through income withholding) and disburse payments.

Geraldine Jensen, member of the U.S. Commission on Interstate Child Support who dissented from the Commission's report, stated that " . . . America's child support enforcement system fails in almost every possible way to serve the children. The message delivered at every public hearing the Commission held was the same: the system needs radical fundamental restructuring. It needs to put children first!"92

To provide a proposal for restructuring of the child support enforcement system with a new vision, Jensen worked with the Ad Hoc Committee to Improve Child Support. They developed a comprehensive and far-reaching proposal for reform which Jensen suggested is the kind of proposal that the Commission should have adopted. The fundamental recommendations of the Ad Hoc Committee to Improve Child Support were: (1) a child support assurance program must be adopted which guarantees that child support will be a regular, reliable source of income for children growing up with an absent parent; (2) responsibility for collecting and distributing child support should be federalized and housed in an agency like the Internal Revenue Service; (3) each state must have in place effective laws and practices to establish paternity and child support orders; and (4) national guidelines must be established to guarantee children a fair level of support.

The major strength of the federalization approach is its ability to create a uniform national system where the amount of child support and the likelihood that support will be paid will no longer depend on the custodial parent's ability to hire a lawyer and pay the attendant costs and where it will not matter if parents reside in different states. Its weaknesses are that it rests on the unproven assertion that the IRS can do a better job than the states and that it engenders violent negative political reaction from powerful constituencies such as the American Bar Association.