Child support system overview and legal framework

Child Support Laws:

History of Child Support Laws:

The financial assistance paid by a non-custodial parent to a custodial parent for a child's care and welfare as ordered by the court is known as child support. States have programs which help families pay, process and collect payments. These programs are in accordance with the States laws. Over the years child support laws have developed tremendously. Divorce and marital breakdown laws in early nineteenth century didn't provide for support action. America, therefore inherited many English laws that provided the father with only a non-enforceable moral duty to support his children. Third parties were forbidden from recovering the cost of support unless through a pre-authorized contract with the child's father. This meant that there was limited recovery of support cost in definite conditions.

Soon enough, the American courts began to deal with the concept that a father had the legal responsibility to support his children (Child Support par, 4). This was despite of the absence of child support provision within the English laws. In one of the earliest American support cases, the court ruled that a father was legally bound to protect, educate and maintain his legitimate children. Third party children support claims were on the rise after the legal establishment of the father's obligation to financially support his children. Before long, women were able to recover from their spouses' money they had spent in supporting their children. Every state in the nation had some legal enforceable laws for a father to support his children by the nineteenth century.

Child support laws continued to develop in the twentieth century with the state welfare agencies required to inform suitable law enforcement officials when provision of aid to dependent children was necessary. As a result of the amendments to the social security act, state welfare agencies were able to obtain the information from the Secretary of Health, Education and Welfare concerning the address and place of employment of a non-custodial parent. In 1975, an enforcement program, which would establish a parent locator service, state operational guidelines and a plan for periodic review of cases, was enacted into law. Each state was given the primary responsibility of operating the enforcement of program.

Nine years later, the States were required to build up binding income withholding procedures and expedited processes for instituting and implementing support orders. These orders included tax refund interceptions and property liens with the states allowed to report delinquent parents to consumer credit agencies. The family support act of 1988 required the court to use the state guidelines in establishing support amounts. A review of the state guidelines every four years was a mandatory requirement for each state.

Why Child Support Laws vary from State to State:

Despite the fact that each State has the legal responsibility of enforcing child support laws, these laws vary from state to state. The difference in child support laws between states can be attributed to the following reasons:

Marriage laws:

Due to the fact that marriage laws have been a state concern rather than a federal one, law about marriage vary considerably between states. However, other states and the federal government recognize marriage performed in any state. There are many ways in which these marriage laws differ including age, sex, common law marriage, cousins, medical test by proxy, covenant marriage, marriage license cost and the waiting period for marriage validity.

For example, almost all states have a least marital age of 18 years without parental consent (Mvguy par, 2). In some states, boys and girls marry without parental consent at the age of 17 and 15 years respectively. Another difference is that couples can basically declare themselves married without marital license in some states. A blood test is required prior to the granting of marriage license in some states while this requirement is routinely waived in other states. Four states allow marriage where one of the parties may not be present and Montana allows a double proxy marriage where the bride and the groom may not be present.

With this kind of difference to what constitute a marriage in all the states, child support law is meant to be different depending on the marriage laws of a particular state. Each state sets it's child support law based on what it recognizes to be a marriage.

Divorce and separation laws:

Even though many states use the same principles, divorce and separation differ from one state to another. A State may use the term "plaintiff" or "petitioner" to refer to the person who files the divorce and "defendant" or "respondent" to refer to the person being sued for divorce. In most cases a residency requirement (i.e. you must have lived as a resident in the particular state in a specific period of time before filling for a divorce) is mandatory.

Most states use the equitable distribution theory in dividing assets equally between the parties (Conor par, 2). This theory takes into account a spouse's premarital state including the current and future earnings. With the equitable distribution theory, spousal support is also determined. Spousal support, which is considered as income, decreases the payer's income and increases the receiver's income.

Child custody and visitation is also put into consideration in the equitable distribution theory. Each of the parents has equal chances of getting custody of the children unless one of the parents has major issues. In case of severe alcoholism or severe psychological problem of one of the parents, the other parent has better chances of getting the custody of the children. But if both the parents are equally fit and live close to each other, they can ask for rotating custody.

When it comes to child support, some states use the payer's income only while others use a combination of both parties income to determine child support. This child support may be paid on weekly, bi-weekly, monthly or bi-monthly basis depending on the payer's work schedule.

Legal separation is a requirement prior to the filing of the divorce in some states while other states like Florida do not recognize legal separation. A separation agreement, which is filed with the court, may be used in the place of placing fault on a party and as a marital settlement agreement in some cases. This difference in divorce and support laws leads to a difference in child support laws.

Annulment laws:

The legal process of pronouncing a marriage void is called annulment law (Annulment Laws par, 1). This is a process which only makes the doubtful unions void. A marriage can be annulled by court due to various reasons which include close biological relationship between the two spouses, a forced marriage, one spouse being below the legal marriage age, mental or physical incapability, non-disclosure of previously existing marriage by one spouse and concealment of divorce by one of the spouses.

The annulment laws vary from state to state and marriage annulments can occur shortly after the marriage has taken place or after along period. In cases after a short period of time, there are no marital assets or children. When annulment is filed after along period of time, distribution of property is enforced with regards to the States' law. Application of the annulment in cases where there are children from the marital relationship includes cases like child support. A court may also refuse to declare a marriage void in some legislation where children are involved.

Prospect of National Law on Child Support:

As stated in the Child Analysis Web site,

"The states of the U.S.A. differ from one another in their child support laws, and in the way they implement those laws. The 'Uniform Act' was drafted by the Uniform Law Commissioners to promote uniformity in states laws on all subjects where uniformity is desirable and practicable, but some have had only limited take-up" (part 4).

The act was for the purpose of providing an interstate system for the enforcement of the support orders, which will not require the person seeking support to go to the residential state of the non-custodial parent. The provision would mean that two different states would be compatible and enforce a support order across state lines.

Since early nineteenth century, many amendments have been made to the law which has enabled each state to bear the primary responsibility of enforcing support orders. Due to the fact that state laws vary from state to state, child support laws have not been an exception.

According to policyalmanac.org,

"….. Child support has become an increasingly important public policy issue in the United States, the primary responsibility of child support collection rests with the states. The federal government, however, provides substantial financial support" (part 2)

Therefore, adopting a national law on child support may not work because of the following reasons:

State-Level Information Sources:

Various state-level information sources which include tax files, employment records, unemployment records and motor vehicle registries are used in locating missing non-custodial parents. In tracking down parents across state lines, the state can turn to the Federal Parent Locator Service (FPLS), which has data access from Selective Service System, the IRS and Social Security Administration amongst others. The state parent locator service lessens the delay of collection of child support. The child support enforcement agencies in most states have the authority to order genetic testing in order to establish the parentage in cases of paternity. Child support payments can be ordered once the parent is found. Withholding of wages and seizure and sales of properties may be used to enforce child support.

Cash Assistance Programs:

Under the Title IV-a, Assistance for Families with Dependant Children (AFDC), cash assistant or welfare of these families was managed at State level. President Gerald Ford signed into law the Title IV-D of the Social Security Act on January 4, 1975 which created a state-federal child support enforcement program (Morgan par, 2). Through the enforcement of child support, the program had two goals i.e. cost avoidance (helping families on welfare leave the assistance roll while those not on the assistance rolls avoid turning to it) and cost recovery (recover the costs of public assistance paid to families both for the state and federal governments).

With the intention of the Title IV-D program being to reduce expenses for public assistance, an applicant and recipient of cash assistance were to co-operate with the State IV-D program agency. These agencies were required to notify suitable law enforcement officials when a child receives the cash assistance (AFDC). The child support cost would therefore not be upon the government and tax payers but on the parents. With the numerous advantage of running the cash assistance programs at the state level, a national law on child support may not be as effective as the state by state child support laws.

Child Support Laws in Other Countries:

United Kingdom:

Child custody law settles on who should be accountable for the concern and charge of a child after divorce or separation in the United Kingdom (Child Custody Rights par, 1). The option of joint custody is the preferable choice of many parents because it permits the child to spend equal time with each of the parents. The joint custody option also allows the parents to be involved in the decision making process that may affect the child. The courts only decide what living arrangement is best for the child in cases where the parents are unable to make an amicable decision. Bitter disputes between married couples always end up in divorce courts. Fortunately, child custody cases always end with an agreement of either joint custody or agreed custody. Joint custody is the preferred solution because it's in the best interest of the child. Both parents share in the physical care, obligations, responsibilities and legal rights of the children.

The divorce courts assess each of the parents before a decision on which parent is given the custody of the child is reached. During this period, an access and maintenance payment from the non-custodial parent is also taken into consideration. Child custody is not only an issue that arises from divorce but also from guardianship. A Child custody dispute also involves a third-party in some instances. In any issue directly affecting the children's welfare and emotional needs, a decision that is in the best interest of the child is adopted.

Occasionally, the court can deny a parent any access to their child due to certain circumstances. If these circumstances change, the court can reverse this decision. As part of the decision making, the courts accept custody arrangements submitted by the parents as part of their separation agreement. However, the courts review the custody arrangements plans to verify whether they are in the child's best interest or not. A parent who had initially been denied the child's custody can regain it once ample evidence of the child's stability has been submitted. This may include the parent's employment stability, relocation of the parent and amalgamation of the child into the new environment.

Canada:

Children are entitled to continue benefiting from the financial means of both parents just as they would when the parents were still together. This is the guiding principle of Canada's child support law. These children are also entitled to the financial benefits as long they are below the age of 19 years or still dependent o the parent. Children above the age of 19 years may be allowed to get financial support if can't be dependent due to an illness or any "other cause.' Parents are usually ordered to support an older child who is a university or college student. This is what is considered as a valid "other cause," which would otherwise render support for an older child optional.

There are provincial or territorial as well as federal child support guidelines that are used to set child support amounts in different situations. Federal support guidelines are used when one of the parents was legally married to the other parent and then gets a divorce. The provincial or territorial guidelines (which contain many federal support guidelines) are used when a couple is only separating and not getting a divorce. Federal guidelines set a fair standard of support for children and help the parents to agree on support by themselves without going to the court. This is because they make child support calculations fair, predictable and objective thus saving them the stressful, expensive and time consuming experience of going to the court (About Child Support par, 10). Courts are only used when necessary in some cases.