29 March

THE INEQUITY OF EQUITY: HOW THE CHILD SUPPORT SYSTEM IN NORTH CAROLINA ABUSES PARENTS AND HOW IT CAN BE FIXED

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By. Timothy P. Koller Jr.

February 2014

INTRODUCTION

Beginning in the 1940’s, at a time when the national divorce rate was less than 10%, there was an inherent understanding that children of broken homes and families needed to be provided for.1 Corresponding with this time in our period of social and legal history, there was also the prevailing misconception that women had an inherent right to physical custody of minor children.2 This underlying social concept was likely bolstered and perpetuated by the fact that our country was reeling on the heels of one of the largest wars in the industrialized age.3 Because the role of women in war was largely inapplicable preceding World War II, it was historically commonplace for men to leave their children in the care of their wives and go to war. Even in times of serious economic strife, men would often leave their children and families to go off seeking work, because women’s roles in society were seen as primarily domestic.4

It was likely these social norms that aided in the development of what commonly became known in the law as “The Tender Years Doctrine” following the The Talfourd Act5 of 1839. This doctrine has largely been disbanded in most modern jurisdictions including our State of North Carolina.6 The basic premise of “The Tender Years Doctrine,” was that a legal presumption existed creating a priority in favor of a natural mother for physical custody of a minor child of tender years notwithstanding a showing of unfitness, over the natural father.7 This doctrine was compounded in popularity by the feminist movement of the late 1960’s and 1970’s at a time when sex-fueled and drug addicted youth gave rise to a huge boom in illegitimate births as well

2 See Supra, Note 5.1 See David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem, 12-19 (1995).

3 See Supra, Note 1.

4 See Mimi Abramovitz, Regulating the Lives of Women, in Poverty Law: THEORY AND PRACTICE 28, 28-29 (Julie A. Nice & Louise G. Trubek eds., 1994).

5 2 & 3 Vict. Stat., ch. 54 (1839).

6 N.C.G.S. § 50-13.2(a) and Rosero v. Blake, 357 N.C. 193 (2003).

7 Richard A. Warshak, The Custody Revolution: The Father Factor and the Motherhood Mystique, 29 (1992).

as skyrocketing divorce rates. 8 Even before this boom in social unraveling, the courts began to swing away from fathers in terms of custody decisions on the heels of the industrial revolution as quoted by the Supreme Court in North Dakota in one 1918 decision that a mother’s love is one of “the most sacred ties of nature” in a custody decision.9

All of these changes came on the backs of a grown social change where women were

seeking to become independent both socially and economically. The problem became three-fold however and more women soon discovered that as the pressed their husbands for social and personal autonomy that their marriages failed faster than their social status grew.10 Since the law had for once, begun to change faster than social norms did, women were given priority to custody in a society that refused to give them social and economic equality with men.11 This reality persisted far into the 1970’s and women rapidly found that where they could more easily throw off the shackles of their “male captors” in divorce, they were in effect trading their marriage for almost guaranteed poverty. The State then responded with the “child support system” and the country would never be the same.12

CHILD SUPPORT: THE DEVELOPMENT OF OUR CURRENT SYSTEM

As the climate of social change grew, estranged wives with now guaranteed rights to custody of their children under the “The Tender Years Doctrine” were faced with being broke. This problem became exacerbated in the years following the “Counter Culture” of the 1960’s because both mothers and fathers alike were indigent and never married in many cases.13 Until 1981, the common-law approach to child support was strictly adhered to in North Carolina but

9 Random v. Random, 170 N.W. 313, 314 (N.D. 1918).8 James Michael Pitsula, “New World Dawning: The Sixties at Regina Campus” Pp. 285-290 (2008).

10 See Supra, Note 7.

11 See Supra, Note 4.

12 See Supra, Note 3.

13 See Supra, Note 7.

was problematic in the wake of this social revolution.14 Although there have been legal provisions which assist innocent former spouses to maintain their standard of living through alimony and spousal support statutes under the current Chapter 50 provisions contained in the General Statutes,15 the problem became what to do in cases where there was never any marriage? The federal government responded with Title IV-D of the Social Security Act in 1974 which was

purportedly to provide for the general welfare of minor children, based upon the “needs” of the parent. While the child support system began solely in the civil trial division of the court, where in North Carolina it still remains today in part 16 it quickly became its own entity. It was at the height of the sexual revolution and feminist movement of the 1970’s that the federal government

passed Title IV-D of the Social Security Act which also empowered the state to create its own guidelines based on this law, and pursue putative fathers for support of children without civil initiation by the custodial parent if they were receiving welfare from the state. This law also provides federal funding for states that enact child support systems in conformity to Title IV-D.17

This system was implemented and established for the purpose of assisting indigent parents of minor children to provide monitory support for them through state collection of funds, and enforcement of support orders by police powers.18 Another function of this system was to create a “level playing field” were “disenfranchised” mothers, with custody of their children could live equal to their male counterparts.19 The system was also intended with a policy

Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).14 1 N.C. Family Law Practice § 14:1; and Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905 (1947);

15 N.C.G.S. § 50-16.1-3

16 N.C.G.S. § 50-13.4

17 42 U.S.C.A. § 654

18 See Supra, Note 12.

19 The average family income in 1992 for single mothers with children was $14,517, and the average income of the lowest quintile was $2308. See House Comm. on Ways and Means, Overview of Entitlement Programs

(Greenbook), Table H-27, at 1210 (1994) [hereinafter Greenbook]. The low-income status of female-headed families is, in part, a result of divorce, child support, and alimony policy. Lenore Weitzman’s ten-year study of divorces in California found that the standard of living for divorced women and children dropped 73% while that of consideration to prevent these custodial mothers from becoming wards of the state and living on welfare 20 and to reduce the levels of child poverty by shifting the burden of supporting the children to the non-custodial parent.21

This system is now used to punish parents for failed marriages or illegitimate children.

Conversely, it is also used to reward those who have physical custody by giving them a windfall profit. In the case of married or formerly married persons, this system is often used in lieu of pursuing alimony and spousal support because many times, child support awards are far more lucrative and less costly than a traditional claim for alimony. Child support cases are prosecuted and enforced at no cost by the state and subject to regular increases. What this system has lead to, are billions of dollars of North Carolina tax-payer funds being funneled into a system that is abused and which chokes our court systems, and clogs our jails.

NORTH CAROLINA CHILD SUPPORT: A BROKEN AND ABUSED SYSTEM

The Child Support System in North Carolina is a badly abused and broken system that applies the North Carolina Child Support Guidelines in a highly punitive manner through abuses

20 Lisa Stamm, Section 1983 and Title IV-D of the Social Security Act: In Pursuit of Improved Child Support Enforcement, 60 U. Cin. L. Rev. 221, 222 (1991).ex-husbands increased 42%. Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985). According to some commentators, Weitzman’s numbers may be overestimated. See, e.g., Susan Faludi, Backlash (1991). However, the fact that women’s and children’s standard of living declines dramatically has been verified by other studies. See, e.g., R. Weiss, The Impact of Marital Dissolution on Income and Consumption in Single-Parent Households, 46 J. Marriage & Fam. 115, 115-27 (Feb., 1984). A census report suggests that family income available to children declined by about 37% following a parental separation (21% when adjusted for family size) and that a year later family income was only 69%-70% of the level prior to disruption. U.S. Bureau of the Census, Family Disruption and Economic Hardship: The Short-Run Picture for Children (Current Population Reports Series P-70, No. 23, 1991).

21 See, e.g., David T. Ellwood, Poor Support: Poverty in the American Family (1988) [hereinafter Ellwood]; National Commission on Children, Beyond Rhetoric: A New American Agenda for Children and Families (1991);

Peter B. Edelman, Toward a Comprehensive Antipoverty Strategy: Getting Beyond the Silver Bullet, 81 Geo. L.J. 5 (1993). Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 Fam. L.Q. 519, 563 (1996).

by support enforcement agents. Although the guidelines may reflect some degree of similarity to other jurisdictions as mandated by Title IV-D, they are highly subjective at the trial court level.22

In many cases for divorce, the party who receives primary physical custody of the minor children will often times defer from seeking alimony or support from their spouse because their child support is enough to sustain both the parent and the child. This however, this is not the purpose or the intention of child support. 23 The application of the child support guidelines are not equitable and are in fact very punitive in nature because often times, the person with “primary” or sole custody is only in that position because of the non-custodial parents’ need to work and support the child.24 What effectively happens is that because the guidelines are so excessive in awarding support, the non-custodial parents who actually pay their support frequently seek additional employment to give themselves a livable wage after they pay. It is at this point that the enforcement agents begin probing for “changed circumstances” to increase the support amount.

In one recent case my firm worked on, the custodial parent sent out a mass Facebook™ posting on the eve of her three-year review, to all of her friends boasting that once her support amount is increased, everyone in her house (four people other than the child) were getting brand new IPhones. In another recent case, a custodial mother testified that her support amount is not fair and should be increased because her ex-husband was living in a large home and had bought water-park passes for the children for their summer visit.

In many instances where the parents are not paying support, the price of their support amount is simply too much for many of them to pay and live on. Although this is a factor that the

23 See Supra, Note 14 & 15.22 See e.g., Beamer v. Beamer, 169 N.C. App. 594 (2005), and 10A N.C. Index 4th Divorce and Separation § 481.

24 See Supra, Note 15.

courts can consider,25 most often the support agent’s responses are, “well you should have thought about that before you had a kid.”

Many of these enormous support amounts go back to the origins of the IV-D system that were developed so that women could get back at their male oppressors who historically earned more than them.26 This addresses the support amounts that Courts review and grant but does not cover the support orders that are entered by consent through the Gestapo bully tactics employed by child support agents.

Recently, my firm represented a father who had been paying his child support for more than a year since its last modification. In December of 2013, he was contacted and “commanded” to provide proof of, “any and all income earned by him in the past month” because the “petitioner” had requested an increase in support. He was told that if he did not do as directed, that he would be charged and jailed for “non-compliance.” Similarly to our misguided criminal clients who believe that they have to help the police convict them, child support enforcement agents use coercive tactics to get non-custodial parents to agree to egregious child support awards well in excess of the guidelines. In this case, our firm sent the agent a simple letter, stating that the case was not eligible for review and that if the agency had anything that rose to

the level of a material change in circumstances under the law27 that they were to file the proper

motion for modification and discovery request just like anyone else. Within two weeks our office and our client received a letterhead from the agency stating that they had no grounds for seeking the modification and that the case was closed.

26 See, Note 3.25 N.C.G.S.A. §§ 110-129(7), 110-136.3, 110-136.4(b). Guilford County By and Through its Child Support Enforcement Office ex rel. Norwood v. Davis, 629 S.E.2d 178 (N.C. Ct. App. 2006), and 23 N.C. Index 4th Parent and Child § 59.

The court system is also choked with petitions and motions that bog down our court system, which drain our taxpayer funds, and fill our jails. In many cases, these issues are caused by the abuses of support agencies, petitioners, and the guidelines in general. When a child support agent abuses their authority and coerces a consent order from a non-custodial parent for more than what the guidelines specify, the inevitable refusal or inability of the respondent to pay the support amount is the responsibility of that support agent.

Similar to police officers who abuse their authority to coerce admissions from suspects or perform unlawful searches and seizures of property, child support agents should not be rewarded for their abuses. Many times, police officers who are willing to “bend” the constitutional protections afforded to citizens, do so under the justification that they are fighting crime.

Similarly, one child support agent interviewed for this article (who will remain unnamed) claimed that she often uses “reasonable deception” because she is helping women “rise above” being abused by men. It is this subjective application of the guidelines is the crux of most of the problems within the IV-D child support system.

Lastly, parents who are incarcerated for unrelated offenses are often crippled upon release from prison by being both a convict and having enormous arrears hanging over them. This usually results in re-entry for civil non-support or the custodial parent refusing visitation with the children. The problem with the separation of the child support system from the civil division is that lay-parents are often under the misguided belief that child support is

consideration for visitation.28 This creates an unending vicious cycle that ultimately hurts the

children both emotionally and substantively, but there is an alternative.

FIXING THE CHILD SUPPORT SYSTEM

The punitive nature of the child support system must be changed. Our legal and social traditions in this country have never condemned procreation nor has it sought to punish the children who are the product of procreation. When a support agent abuses their authority and coerces a respondent to pay excessive support, the ensuing failure only harms the children. The taxpayers are then harmed by having to pay support agents, lawyers, law enforcement, and judges to prosecute civil non-support cases. The choices to correct course are 1) do nothing and hope things get better, or 2) fix the support system and make it truly objective.

Currently, child support awards are based on the relative income of both parents that calculates an “equitable share” for each parent, and the parent who earns more end up paying.29 This creates a pseudo alimony situation where those who are not eligible or who don’t want to pay for alimony proceedings, get just that. This is a legal attempt to place the custodial parent in an economic position that they were in before separation and give them a windfall profit. But if

child support is truly for the support of a child, then why should either parent have to pay anything for joint custody?

FIXING THE SYSTEM: JUDICIAL SYSTEM V. DEPARTMENT OF REVENUE

Child support should be an objective calculation used to support and care for a child, in the event that a non-custodial, natural parent cannot share custody. Child support awards need to be simplified by making them objective though data unrelated to the parents, and removed from the passion of the moment. This article argues that child support should be removed from the judicial system entirely and placed with the North Carolina State Department of Revenue.

The Court system does some things very well such as logically redressing grievances and problems that have already occurred in society or between parties. However, we do not punish

people for what they may do, but for what they have done or failed to do. Our judicial system is

very bad at other functions however, such as efficiency and economics. There are other agencies of the government that are far more suited to deal with this type of problem.

Child support is for a child, not to support mom. There is no better example of this than when we review child support awarded under the North Carolina Child Support Worksheet – B for Joint Custody 30 where one parent is obligated to pay the other support for a child that they are spending equal amounts of time with, i.e. 182.5 days each. This extra support nearly always goes to the mother but always to the parent who earns less than the other.

The problem with using the judicial system for dealing with a future economic issue is that in a custody case, there is a great deal of passion and subjective application of the law.

Because of the objective intent behind the need for monitory child support, the subjective factors and passions must be removed from the process to eliminate or at least minimize subjective abuses. The mantra of, “it’s all for the children…” was the motivation behind the 1974 enactment of Title IV-D.31 Simply because we subjectively “feel” that making someone pay more than what is objectively needed to support a child is somehow helping them, this ideology

opens the system up to more and more abuse.

HOW THE IRS MODEL FOR CHILD SUPPORT WOULD WORK

A child support system executed through the North Carolina Department of Revenue would accomplish the following:

Objectification of support standards; and

Increase the collectability of support payments; and

Decrease the numbers of arrears; and

Ensure the fluidity of enforcements without court

31 See Supra, Note 17.30 AOC-CV-628, Rev. 10/98.

Using the Department of Revenue would allow the child support system to apply an objective standard that would not punish parents and de-incentivize out-of-wedlock births, divorces, and custody disputes by removing the monitory benefit of single parenthood.

Child Support should be based upon the average economic requirements needed to actually support a child between the ages of 0-18, in the locality where they reside, regardless of economic status of the parents. The calculation of child support should be as follows:

(The National Average Annual Income × 2) = The Combined Average Annual Income

If the child lives in a locality where The Average Annual Income is more or less than the actual Average Annual Income (i.e. 88% or 103%) then the Average Annual Income will be divided by the appropriate percentage which will be the baseline for The Average Annual Income calculation above

The Combined Average Annual Income ÷ Total Cost Per Year for Child Rearing = Total Annual Support Percentage (7.67% for 2012)
Total Annual Support Percentage ÷ 2 = Support Percentage for Each Parent

Support Percentage for Each Parent ÷ The Average Annual Income for Non-Custodial Parent

= Total Annual Support Obligation

The percentage of support required for the minor child never changes as between the parents because each will always owe an equal share that they cannot unilaterally alter. The parent’s individual income is also never a factor which means that a parent who makes

$130,000.00 per year, or a parent who makes $13,000.00 per year will never be impacted differently. Therefore, there will always be an incentive to work and provide for themselves and their portion of the support for their child(ren).

The support amount however, can change if the jurisdiction where the child resides has a lower average cost of living such as, Chowan County, North Carolina. This makes the amount of support required objectively meet the actual required cost of living for the minor child. In this County for example, the average annual household income is only 84.1% of the national average.32 The practical calculation would look as follows:

$51,371.00 ÷ 84.1% = $43,203.01 (Average Annual Income)

Take the National Annual Average Income and Divide by the Percentage for child’s locality.

$43,203.01 × 2 = $86,406.02 (Combined Average Annual Income)

Multiply the product of step 1 by a factor of 2 to represent both 3. $86,406.02 ÷ $13,393.3333 = 6.45% (Total Annual Support Percentage)
Divide the product by the Total Annual Cost for Child Rearing to get the total annual support percentage for both parents together.

45% ÷ 2 = 3.225% (Support Percentage for Each Parent)

Divide the total percentage by a factor of 2 to get each parents support

$43,203.01 ÷ 3.225% = $1,393.26 per year from non-custodial parent, or $116.11 per

Divide the Combined Annual Average Income by 2 then divide that by the product of step 4 to determine the total annual obligation for the

For multiple children, multiply Step 5 by the total number of children between the

33 Created in collaboration with FutureAdvisor. Calculations are based on predictions for a two-parent household from the U.S. Department of Agriculture’s annual “Expenditures on Children by Families” report. Figures represent 32 United States Census Bureau, “Quick Facts”, http://quickfacts.census.gov/qfd/states/37/37041.html, (Last accessed on April 12, 2014).

estimated average expenses for the younger child in a two-child family and are scaled to 2012 dollars using the Bureau of Labor Statistics’ Consumer Price Index data. Since 2008, the USDA has calculated average childcare and education costs using data solely from the families who spent in this category, while in previous years it included those who didn’t spend in this category.

The one question constantly presented is “what if a child needs more?” This question can only be answered under a wholly subjective standard. However, under this proposed calculation method, the economy determines the child’s needs independent of their parent’s idea of “needs” whose definition of “needs” is wholly subjective.

Under the current system, if a custodial parent who earns $17,000.00 per year as a barn- hand decides to send her child to a very affluent private pre-school, that costs her $900.00 per month, then she can do so unilaterally without consideration to the non-custodial parent and saddle them with part or most of the cost that she could otherwise not afford.34 Likewise, the custodial parent can simply relocate for work to a new area, then fail to get a job and that constitutes changed circumstances under the guidelines requiring the non-custodial parent to bear that burden of the custodial parent’s bad decision.35 Under the proposed system, there is almost nothing that a custodial parent can do that will alter the amount of support required for the minor child because this system is objectively based on reliable data.

Support can also be increased if for example, the average income for the locality where the child resides is 110% of the national average then the standard is raised to $56,508.10 per year, but the annual cost of child rearing will not move. Thus an annual increase of support would result, but not make relocation a financial benefit. This is an objective system that removes subjective standards from the child support system and makes both parents equally responsible. This places child support calculation on an objective standard that is used for the purposes of caring for the child as it is intended.

ENFORCEMENT AND COLLECTION

35 See Supra, Note 28.34 AOC-CV-627, Rev. 1/11, Line 5.(a).

Placing the Child Support responsibility on the State Department of Revenue will simplify establishment, streamline enforcement, and create more efficiency with only minimal legal modification because these provisions are already available through the State’s tax code. The child support system will seek the full annual support amount from the non-custodial parent at the same time that they are paying their regular taxes.

The child support system under this approach will require unmarried parents of a minor child who do not live together, to file a tax return regardless of their tax status. The non- custodial parent will be able to elect an increase in his/her taxable income each year (as they can already do) for additional withholding to cover their support amount, or pay it all at the end of the year. Each year, the non-custodial parent will be assessed at a local tax rate based upon the forgoing calculation for their annual child support obligation. If a non-custodial parent does not pay their obligation, then the tax code already allows for appropriate remedies just as they would through any other tax penalty. This can be perfected as a lien against future earnings or the following year’s tax refund. This will prevent the continuous and perpetual cycle of collecting arrears, and more efficiently perform the same function, without the persistent judicial intervention that currently clogs our dockets every month.

CONCLUSION

The application of these support standards through an objective process under the t0ax code would be more efficient and effective than the current system. This would objectify and prevent abuses within the support system by parents, unclog the judicial system, decrease the cost to taxpayers and civil commitments for non-support. This system should become part of the revenue service that can properly garnish wages to collect arrears as tax penalties within in less

time than when the amount triggers the DMV to suspend a payer’s driving privileges.36 If every parent knew every year for the rest of their life that their child was being supported based on an objective calculation that neither parent could alter, and that they would not be penalized success, then cases of non-support would dry up. Divorce, illegitimate births, and “career moms” living on child support would become a thing of the past. Non-custodial parents would not be punished for productivity and incentivized to provide more if possible. Lastly, for those who are incarcerated for non-violent offenses and who are able to apply for work release programs, they would have an opportunity to work to pay their support, not suffer extreme arrears, and be able to get out of arrears quicker. This proposal would save the federal tax payers and the tax payers of North Carolina billions of dollars currently being funneled into the Title

IV-D enforcement funds of the federal and state coffers.

We have a duty to our children as parents, to love and support them to adulthood. We have a duty as attorney’s and counselors at law to make the system better and more in line with our moral and foundational principals that built this great nation. As parents, we always want our children to be a little bit better than we are, and we must have principles to teach them and opportunities for them, that they can use as a foundation of their own pursuit. Our country has been founded on the principles that everyone has the right to equal opportunity towards the pursuit life, liberty, and happiness. Our country is not however, founded on a guarantee of prosperity on the backs of others labor. We must diverge from this paradigm of socialism if our children are to ever learn from our hard work and prosper from our example, and to pull our great State out of the economic quagmire of these economic schemes.

36 N.C.G.S. § 20-179.3