The Fatherhood Coalition
PO Box 700 Milford, MA
01757 · 617.723.3237
Child Support Guideline Revisement
Prepared for the Honorable Barbara A. Dortch-Okara
Chief Justice of Administration and Management
Administrative Office of the Trial Court
Following an introduction, these recommendations are organized as follows:
Child support policies should be driven by the best interests of the children. But in practice they fail in this regard because they do not adequately address the childs needs when he/she is in the care of the non-custodial parent. There is agreement across the board that the role of the father in child development has been neglected. Future polices on child support must reflect the importance of the father-child relationship.
It is essential in any discussion of the Child Support Guideline to acknowledge the gender politics of the environment which spawned them and within which they are implemented. In a recent Ph.D. thesis, custody decisions from Worcester Probate and Family Court were analyzed1. The decisions, arising from actions initiated between May and December 1993 and resolved in 1994 and 1995, show the following breakdown of 501 dockets:
|Final Custody Arrangement||Mother [per cent]||Father [per cent]|
|Sole physical and sole legal||22.4||1.6|
|Sole physical and shared legal||60.8||7.2|
|Total physical custody||83.2||8.8|
|Shared physical and legal||
This data shows that sole physical custody decisions favor mothers over fathers at a rate of almost 10:1. This data bears out the claim that most custody decisions, whether agreed to by the parties or established by a court trial, result in physical custody to the mother and "visitation rights" to the father.
When this is an agreed-to arrangement, in many cases it is because the father has been informed that it is not in his or his childrens best interests to challenge the bias towards mother custody. Indeed, men who do challenge -- usually those men who have good reason to do so -- end up paying a steep price, emotionally and financially.
A study of custody and child support cases in 1994 and 1995 in Missouri found that when custody is contested, the average child support award to mothers increases by 25% and 22% (the former when sole custody is awarded, the latter for joint custody), and the average child support award to fathers decreases by 25%2. This is merely the financial hit that a father takes should he challenge for custody. The other ramifications (including false allegations of child abuse, domestic violence, and even sexual molestation, etc., that all result in loss or at least diminished access to ones children) have not yet been quantified, but they serve as the greater impediment to fathers who wish to challenge sole maternal custody.
The harmful effects of divorce on children and the effect of broken families on society in general is finally being recognized. Already there is a movement afoot to address the "divorce culture." We hope and expect that a return to the values of commitment and responsibility will eventually reassert itself, and the institution of marriage as a permanent arrangement between one man and one woman will become strengthened. However, until that time, high divorce rates will continue to be a fact of life. Recognizing this reality, the Child Support Guideline, rather than echoing the prejudices of the past (and present), must begin to promote equality for fathers in parenting. As such, the Guideline must address the reality of the two-household family, with two parents equally capable of educational achievement and employment opportunities, each bearing the cost of providing a home for their children.
1. FUNDAMENTAL PROBLEMS IN THE PRESENT GUIDELINE
The present Guideline was formulated with the goal that the standard of living of the children should not decrease after a divorce. From the Guideline:
"In establishing these guidelines, due consideration has been given to the following principle: To provide the standards of living the child would have enjoyed had the family been intact;"
The implicit assumption behind this is that the non-custodial parent is a father who intentionally abandons his family. This model and its solution no longer fits the modern family breakup. Women are equally capable of providing for themselves, and they have been for some time. And most fathers in divorce are not abandoning their children. In fact, quite the opposite is the case. Today, many mothers use the courts to intentionally dispose of the father (except for his income). We call this forced fatherlessness, and refer to these men as throwaway dads.
Using the model of the abandoning father, it was easy to rationalize that the father should subsidize the new fatherless family. However, this is now indefensible. Where once there was one household there are now two. The standard of living must decrease, at least temporarily. The Guideline, and the courts divorce policies in general, should be guided by an objective of establishing an arrangement that is most conducive to both parents improving their standards of living, to perhaps reach or exceed what it was before the breakup. The present Guideline does exactly the opposite. It encourages the custodial mother to quit working, while providing no incentives for the father to earn more income and raise his standard of living back to where it was before the breakup, since new income is also subject to child support at the same rate.
Furthermore, the present Guideline was arrived at by applying a model developed from a report that is fraught with error. This report was prepared for and presented to the Child Support Guideline Conference, held September 15 17, 1986 at Queenstown, Maryland3. We reason that the present Guideline was driven by this report because much of the language is identical to terminology in the D.O.R.s 1993 report "Report on the Child Support Guideline," and because one of the authors, Marilyn Ray Smith, is the chief legal counsel of the D.O.R. Child Support Enforcement Division.
Smiths report attempts to model the Guideline by examining and comparing the SofL (standard of living) of family members before divorce and afterward. We first note the basic error in principle that the SofL of the NCP is arrived at considering only the costs of one adult; that is, it does not take into account expenses the NCP incurs providing for the children while in his care (most notably among these costs are housing). However, there are many errors in the methodology, and all errors serve to over-inflate the NCPs SofL after divorce while overestimating the decrease in the CPs SofL.
In an analysis of the report, Kevin Whitney determined the following problems with Smiths report4.
According to Whitney:
"When the author examined the materials supplied by the DOR which described the method for determining those guidelines, he was surprised to find substantial flaws in the model used to determine the change in standard of living of the parties involved in the support determination activity. Further, the DORs "Report on the Child Support Guideline" evaluates policy and make policy suggestions based on that flawed model. One of the flaws, if corrected, completely invalidates the way DOR uses the standard of living model, and hence, also invalidates the conclusions reached in the DORs examples. Since those examples are the basis of policy making decisions, the resulting policies are invalid. The DORs report loses credibility even more by having errors in calculations in the examples used to support their proposed changes to the existing Guideline. Further, applying the Guideline to a $25,000 wage earner proves to impoverish that parent to the point where that parent cannot afford modest basic living expenses."
Consequently, Massachusetts child support awards are by and large the highest in the nation, and in most cases, significantly so. David B. Weden has analyzed several comparative studies of state guidelines5.
His report includes the following conclusions:
"In family situations involving one child, Massachusetts child support guidelines produce a result that is far higher than virtually all other states. This disparity increases as family incomes increase, and is especially dramatic for family incomes over $60,000. this disparity cannot be explained by the relatively high cost of living in Massachusetts.
" the Massachusetts child support guidelines produce presumptive awards that do not reflect commonly accepted patterns of family spending on children:
"· For cases involving one child the Massachusetts guidelines produce presumptive awards that greatly exceed estimated family spending on children as reported annually by the United States Department of Agriculture, especially as family income exceeds $47,000. For cases involving more than one child, this same disparity emerges, but is not as pronounced as with one-child cases. Further, the observed disparity widens continuously as income rises. These observations imply that the Massachusetts guidelines do not reflect commonly accepted spending patterns on children, as determined by numerous studies, including the USDA.
"· The Massachusetts guidelines produce a result that increases (as a percentage of after-tax income) as income rises. This is inconsistent with previous studies of costs of child rearing, as well as the USDA estimates, and provides further evidence that the Massachusetts guidelines are not based on commonly accepted patterns of child rearing costs.
"The effect of child support on stepfamilies is dramatic, and stepfamily situations are not addressed in the Massachusetts child support guidelines. For one-breadwinner families, the analysis presented by the author suggests that stepfamily households receiving child support are favored by up to 90% over stepfamilies paying child support."
The following table from the report dramatically reveals the inequity of the Mass. Guideline.
2. WHEN IT IS APPROPRIATE TO APPLY A CHILD SUPPORT GUIEDELINE
There is little disagreement that the adversarial court environment is the worst place to resolve family breakups that involve children. Most people who truly have the best interest of children at heart recognize that the state must encourage and provide alternatives, and that a decision imposed by a judge on two warring parents must become the very last resort, not the first option. In keeping with this principle, future efforts at divorce reform should recognize the need to encourage parents to mediate their differences. The amount of money to be changed hands, if any at all, should be decided upon by the parties themselves.
In the ideal situation parents will share custody of their children, and each will provide for their children while they are in their care as they see fit. The state has no business imposing on parents what they should provide for their children when it is evident that both parents wish to continue their parenting role. However, in other circumstances it may be appropriate to make a child support award by applying the Guideline. The circumstances under which this may be appropriate are:
3. WHEN A CHILD SUPPORT AWARD SHOULD BE TERMINATEDPresently after a family breaks up through divorce, the upheaval in the lives of all concerned does not end with the Judgment Nisi. Often the aftermath is even more pronounced. For example, once sole physical custody is established, the custodial parent (overwhelmingly the mother) may seek to move away from the last place of family domicile. Often, the motivation for moving away, especially to a great distance, is to prevent any change in the custody order and the child support award. Limiting the fathers access by moving away can ensure that the childs bond with the father can only weaken.
Because a family breakup is reduced to a zero-sum game where the custodial parent obtains up to 40.25% of the non-custodial parents gross income for up to twenty-three years, the divorce process has become militarized to an unprecedented degree. A father who can demonstrate a history of involvement with his children runs the highest risk of being attacked by a mother who fears the possibility that the court may recognize him as the better parent. In these cases, it is common for the mother to employ the tactical weapons of the divorce arsenal (that are essentially available for women only): allegations accusing the father of parental unfitness, "domestic abuse," and the nuclear "tactical" weapon: sexual molestation of his children.
These unfortunate realities cry out for the courts to establish proactive policies to discourage such reprehensible behavior; their current popularity derives at least partially from the absence of effective punishment for mothers caught using such tactics. The threat of terminating child support is a weapon the courts must wield to deter such misbehavior.
Child support awards should be terminated under the following circumstances:
4. OUR RECOMMENDATIONS FOR THE GUIDELINE REVIEW PROCESSSince non-custodial parents pay child support, non-custodial parents (overwhelmingly fathers) must be appropriately represented in any public forum that affects child support policy.
CPF/The Fatherhood Coalition is an active, non-profit organization that helps non-custodial fathers with their custody-related problems and performs advocacy work on behalf of fathers rights. We are the best qualified to represent the interests of non-custodial parents in this review process. This report includes several recommendations for changing the Child Support Guideline. They are not a substitute for our active participation; they are merely some of the suggestions that we wish to bring to the table.
The last review of the child support Guideline was done without participation from non-custodial fathers and without public hearings. In addition to representation, we request open public hearings accessible to citizens across the state.
Additionally, we do not believe the errors in Marilyn Ray Smith's work are accidental, since they all disadvantage the non-custodial parent. The inclusion of someone with such questionable objectivity will undermine the integrity of the revised Guideline. We object to the potential participation of Marilyn Ray Smith in the review process.
5. SPECIFIC CHANGES TO THE EXISTING GUIDELINE
With the objective being to make the Guideline fairer to the non-custodial parent, we have chosen to simplify it by removing special considerations for the custodial parent, rather than complicating it further by adding commensurate special considerations for the non-custodial parent. These changes include:
In establishing these guidelines, due consideration has been given to the following principle:
2) To encourage joint parental responsibility for child support in proportion to, or as a percentage of income
and in proportion to the amount of time spent in each household;
3) To provide the standards of living the child would have enjoyed had the family been intact;
4) To meet the childs survival needs in the first instance, but to the extent either parent enjoys a higher standard of living to entitle the child to enjoy that higher standard;
4) To meet the childs survival needs in the first instance, but when the former familys standard of living was at or below the poverty level, to entitle the child to enjoy a raised standard to the extent either parent has improved their economic well-being;
8) To allow for orders and wage assignments that can be adjusted as income increases or decreases.
8) To allow for orders that can be adjusted as income increases or decreases.
II. FACTORS TO BE CONSIDERED IN SETTING THE CHILD SUPPORT ORDER
B. CLAIMS OF PERSONAL EXEMPTIONS FOR CHILD DEPENDENTS
In setting a support order, the court may make an order regarding the claims of personal exemptions for child dependents between the parties to the extent permitted by law.
In setting a support order, when the amount of child support is sufficient to place the custodial parents family income above the level required for public assistance, personal exemptions for child dependents will be granted to the child support obligor.
C. MINIMUM AND MAXIMUM LEVELS
Remove paragraph one that deals with custodial parent $15,000 income disregard
Remove paragraph three that deals with INCOME ATTRIBUTION
D. CUSTODY AND VISITATION
These guidelines are based upon traditional custody and visitation arrangements. Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable. The guidelines are also not meant to apply for cases in which there is split physical custody, i.e., each parent has physical custody of one or more children.
These guidelines recognize that children must be allowed to enjoy the society and companionship of both parents to the greatest extent possible. The court may adjust the amount of child support beyond the 2 percent range (see Basic Order, Section III A.) after taking into consideration the parties actual time sharing with the children and the relative resources, expenses, and living standards of the two households.
In some instances, the non-custodial parent may incur extraordinary travel-related expenses in order to exercise court ordered visitation rights. To foster parental involvement with the children, the court may wish to consider such extraordinary expenses in determining the order.
D. CUSTODY AND VISITATION
These guidelines are based upon traditional custody and visitation arrangements. But where both parents were actively involved in the raising of the children, and both parties desire to continue in their parenting role to the maximum amount possible in a two-household family, these guidelines can also be used to establish a child support order. In such cases, the adjusted weekly support order amount as calculated in the worksheet (see worksheet (C)) shall be modified according to the following formula:(weekly-support-order) =weekly-support-order) ´ ((7 average # days per week with NCP) ¸ 7)
Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable. The guidelines are also not meant to apply for cases in which there is split physical custody, i.e., each parent has physical custody of one or more children.
These guidelines recognize that the best environment for raising children is the two-biological-parent family. Children are best served by enjoying the society and companionship of both parents to the greatest extent possible. In order to encourage non-custodial parent involvement, the court may adjust the amount of child support beyond the 2 percent range (see Basic Order, Section III A) to account for extraordinary travel-related expenses incurred by the non-custodial parent.
F. AGE OF CHILDREN
Delete this section.
H. ATTRIBUTION OF INCOME
Delete this section.
J. EXPENSES OF SUBSEQUENT FAMILIES
Expenses of a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such expenses should not be considered a reason to decrease existing orders.
Replace this sentence with:
Expenses of a subsequent family may be used as a defense to a request to modify an order seeking a decrease in the existing order. In such cases, the award may be decreased within the discretion of the court depending upon the circumstances of each case.
III. CHILD SUPPORT OBLIGATION SCHEDULE
A. BASIC ORDER
GROSS WEEKLY INCOME
NUMBER OF CHILDREN
Discretion of the court, but not less than $50 per month
Within the discretion of the court, and in consideration of the totality of the circumstances of the parties, the order may be either increased or decreased by 2 percent. Where the court must set a support order where there are more than three children, the minimum order is to be no less than that contained in the Guideline for three children, to be increased within the discretion of the court depending upon the circumstances of each case.
GROSS WEEKLY INCOME
NUMBER OF CHILDREN
1 2 3 $0-$125
Discretion of the court, but not less than $50 per month
Within the discretion of the court, and in consideration of the totality of the circumstances of the parties, the order may be either increased or decreased by 2 percent. Where the court must set a support order where there are more than three children, the minimum order is to be no less than that contained in the Guideline for three children, to be increased by no more than 2 percent for each additional child, depending upon the circumstances of each case.
B. AGE DIFFERENTIAL.
C. CUSTODIAL PARENT INCOME ADJUSTMENT
Delete these sections
CHILD SUPPORT GUIDELINE
Keep narrative paragraph; replace entire worksheet items with the following:
1. BASIC ORDER
a) Non-custodial gross weekly income (less prior support orders actually paid, for child/family other than the family seeking this order)
_________ b) % of gross/number of children (from chart III A) _________% c) Basic Order (a) x (b) (A)_________ 2. CUSTODIAL PARENT INCOME ADJUSTMENT a) Custodial parent gross income _________ b) Less day care cost (annual) _________ c) Custodial adjusted gross (annual) _ _________ d) Non-custodial gross (annual) _________ e) Total available gross (c) + (d) _________ f) Line 2(c)________ Line 2(e)_______ g) 2(c) divided by 2(e)________per cent h) Adjustment for custodial income (Line 2g %) x (A) (B)__________ 3. CALCULATION OF ADJUSTED ORDER a) Basic Order (A) above (A) ________ b) Less adjustments for income (B) above (B) - ________ c) Less 50% weekly cost of family group health insurance [under the provisions of G(1)] - ________ d) Adjusted weekly order (A) - (B) - 3(c) (C) ($)___________ 4. NON-CUSTODIAL PARENT PARENTING TIME ADJUSTMENT a) Average number of days per week child
spends with non-custodial parent
_______ b) NCP timeshare adjustment
(7 - 4(a)) / 7
(D) _______ per cent 5. CALCULATION OF FINAL ORDER WEEKLY SUPPORT ORDER (C) x (D) ($) __________
1. An examination of decision-making in family courts: A reconstruction of fatherhood, Joseph McNabb, Northeastern University, 1997 pending.2. Custody Decisions Statistical Analysis and Research for St. Louis County, Missouri, Dan McLaughlin, edited by David Usher, National Congress for Fathers and Children, 1996 3. Massachusetts Child Support Guideline: A model for development, Marilyn Ray Smith and Jon Larramore, 1986 4. An analysis of the Child Support Guideline, Kevin R. Whitney, 1995, available by request. 5. Massachusetts Child Support Guidelines: A Benchmark Analysis, Weden, David B III, Sept. 2000,
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