Child Support Means More Than Money - The Problem of Selective Enforcement
Child Support Means More Than Money
Family Law Section
Child Support Means More Than Money: The Problem of Selective Enforcement By Stephen A. Land LLC
The rash of media attention on "deadbeat fathers" has prompted Congress and the courts to make the enforcement of child support orders an important public policy priority. The result of this heavy emphasis on child support enforcement is today's Support Enforcement Amendments and "child support guidelines," which are detailed mathematical formulate and charts designed to impose on the courts a more consistent approach to determining support awards. Lawmakers hoped that the application of these set principles would eliminate the perceived tendency of judges to be swayed by personal prejudices.
Unfortunately, the result of implementing such policies has been that Congress, as well as state and local governments, have focused solely on enforcing financial support of children, virtually ignoring a second, but just as essential, king of child support also in desperate need of enforcement: meaningful visitation.
Child support: Protected by law
Georgia, like other states, has a law, which sets out, in great detail, guidelines governing the calculation of child support. The law is set out at O.C.G.A. § 19-6-15, and it requires the computation of child support based upon gross income, defined as " . . . 100 percent of wage and salary income and other compensation for personal services, interest, dividends, net rental income, self-employment income, and all other income, except need-based public assistance ."
The guidelines set out the method for calculating the amount of support and the percentages applicable given the number of children involved. For example, for one child the range is 17 to 23 percent of gross income; for 4 children the range is 29 to 35 percent. Somewhat quixotically, the statute says that: "these guidelines are intended by the General assembly to be guidelines only and any court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of trial."
Visitation: Important,but not well protected
Despite the obvious importance of visitation, however, Georgia does not have a law that spells out visitation guidelines, in the same way O.C.G.A. § 19-6-15 spells out the general parameters for child support.
Unquestionably, improving the collection of child support payments dramatically increases the well-being of millions of children by providing needed funds for food, clothes, educational supplies and child care. But it is visitation, not a support payment that provides the contact between the non-custodial parent and the child. Contact is crucial: a child's needs extend far beyond financial ones to include physical, emotional, spiritual and social needs. Meeting these needs requires that both parents be actively involved in giving the child the guidance and nurturing support needed for healthy development.
Visitation offers benefits to all parties involved. The non-custodial parent experiences less emotional loss, anger, depression and role discontinuity. The custodial parent experiences intermittent relief from the full-time responsibility of parenting. Most importantly, the child benefits from a post-divorce adjustment facilitated by parents committed to sharing responsibilities for the healthy physical, emotional, spiritual and social development of the child.
Ironically, non-custodial parents whose visitation privileges are respected by the custodial parent are more likely to make the required support payments. In 1989, Statistical Brief SB/91-18 (issued October 1991) reported that nearly 80% on non-custodial fathers with visitation privileges paid child support, while only 45% on non-custodial fathers without visitation privileges paid.
The protections for visitation rights that do exist
For the non-custodial parent, maintaining the parent-child relationship requires protected visitation rights. The importance of this concept was emphasized in Franz v. United States, 707 F.2d 582, 601 (D.C. Cir. 1983), when the court held that the parent-child relationship is a "liberty interest" constitutionally protected by the Fourteenth Amendment.
Likewise, O.C.G.A. §19-9-3(d) states that: "It is the express policy of this state to encourage that a minor child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after such parents have separated or dissolved their marriage." Although it has been held that grandparents do not have an actual right to visitation (Brooks v. Parkerson, 265Ga. 189, 454 S.E. 2d 769 (1995) (concluding that a statute regarding "grandparental visitation" violated the federal and state constitutions)), this section plainly declared the public policy of this state. Visitation is no more and no less than part of the custody determination. See also Worlet v. Whiddon, 261 Ga. 218, 403 S.E. 2d 799 (1991).
Neglecting visitation: the bias against fathers
A well-documented and researched study entitled, "Report of Gender Bias in Tennessee Courts," prepared by The Society for Preservations of Family Relationships, Inc., describes the pervasive bias against fathers with respect to visitation rights and custody matters. This report and a wealth of similar information is readily available on the Internet at the following home pages:
- Divorce Online
- Divorce-Child Support & Custody
- Divorce-Legal Resources
Officials enforce support payments, but not visitation rights
Despite the numerous benefits of upholding the visitation rights of the non-custodial parent, and the laws that could be enforced, the legal community continues to aggressively enforce support payments while rarely protecting the non-custodial parent's visitation rights. When it comes to ensuring support payments, however, federal and state officials possess and use awesome tools of enforcement. These tools include payroll-withholding, interception of income, income tax return garnishment, or incarceration. Furthermore, payment is strictly enforced even when the custodial parent repeatedly interferes with visitation or otherwise denies access to the child.
Placing such heavy emphasis on paying child support while ignoring the enforcement of visitation orders has several detrimental effects. Many custodial parents interpret the Support Amendments as giving them authority to deny visitation when support payments are not made. In other words, despite the illegality of it, non-custodial parents effectively must "buy" the right to see their children. Second, heavy emphasis on monetary support leads the child to believe that his or her relationship with the non-custodial parent is financially based, rather than one based on genuine care and love. Finally, ignoring enforcement of visitation can encourage the development of juvenile crime. By allowing the custodial parent to repeatedly interfere with or deny visitation, courts send a message to the child that it is permissible to disobey court orders and violate the law.
The sad truth is that the non-custodial parent is virtually at the mercy of judges, some of whom either refuse to enforce visitation orders or do so in a namby-pamby way. The obvious remedy is a civil contempt action to get a contempt order. Many problems are involved in enforcing contempt orders, however, and courts are reluctant to issue them. Another reality is that while the courts do not hesitate to throw a "deadbeat dad" into jail, they shy away from doing the same to a custodial parent, even if he or she is blatantly and repeatedly violating visitation orders. A double standard undeniably exists.
Remedying the problem: Enforcing visitation rights
If parents knew their non-compliant actions would jeopardize their current custody arrangements, improvements would be made. Another possible remedy may be requiring mandatory mediation or counseling to resolve visitation conflicts. Alternatively, education may be an answer to this important but presently overlooked problem. Parents need to be taught that withholding visitation privileges, as well as withholding support payments, out of anger or to coerce or punish each other is wrong, illegal, and certainly is not in the best interests of the child.
Current legislation (Public Law 98-378) lays a foundation for the protection of all children's rights to support, but under the law's present interpretation, only financial support orders are enforced. Policy objectives and child support enforcement systems need to be modified to reflect the fact that enforcing child support includes enforcing visitation orders. Unless and until such modification occurs, the repeated violations of and noncompliance with court-ordered visitation rights will continue to lead to increased bitterness and civil disobedience. In the meantime, a great disservice is done to our youngest citizens as their constitutionally protected parent-child relationships continue to deteriorate.