In recent years, I have noticed a court system that denies civil rights, due process, and equality when it comes to non-custodial parents (mostly fathers) in family court. Family court has become about winning a prize, namely the child(ren) of a marriage and to receive as much money as possible. Plaintiffs are encouraged to make faulty claims regarding the defendant in order to gain leverage and by doing so, get the upper hand. Lawyers also know how non-custodial parents are most often not listened to in court and will therefore avoid taking on a case that involves the non-custodial parent’s rights. In my research and experience through the years, I have found many articles that address these issues; however, the government, the courts, and the general public turn the other way and will not face the facts. Most people will simply just refer to “deadbeat dads” as wealthy men/fathers who just decide to “abandon” their child(ren). The Bradley amendment from 1986 has caused iniquities to low-income and disabled parents (most commonly fathers). As it stands right now, a non-custodial parent in arrears is assumed guilty and cannot be proven innocent. Here is a very enlightening article written by Jeffrey M. Irving and Glenn Sacks. Please read this and then make an informed decision about what is right and what is wrong:
“August 26, 2005 — In a highly-publicized move, Jefferson County, Kentucky Attorney Irv Maze recently published the names and addresses of 1,000 alleged “deadbeat parents” in the Louisville Courier-Journal. The move has drawn praise nationally, and Maze says the list is helping his office locate debtors. However, most of the parents on Maze’s humiliating list are not those who won’t pay, but instead those who can’t pay.
Federal Office of Child Support Enforcement data shows that two-thirds of those who owe child support nationwide earned less than $10,000 in the previous year.
According to the largest federally funded study of divorced dads ever conducted, unemployment, not willful neglect, is the largest cause of failure to pay child support.
A US Government Accounting Office survey of custodial mothers who were not receiving the support they were owed found that two-thirds of those fathers who do not pay their child support fail to do so because they are indigent. These research findings are reflected in Kentucky’s Top 10 Most Wanted Parents list. Of those “deadbeats” currently listed, only one appears to have any education at all, and the most common designation for occupation is “laborer.” Far from being a list of well-heeled businessmen, lawyers, and accountants, these men do low wage and often seasonal work, and owe large sums of money which most could never hope to pay off.
Kentucky’s list of low income “deadbeats” is typical of the child support evaders lists put out by most states. For example, Virginia’s new list is topped by a laborer, a carnival hired hand, and a construction worker, who collectively somehow “owe” over a quarter million dollars in child support!
The driving force behind child support arrearages is not bad parents, but instead rigid child support systems which are mulishly impervious to the economic realities noncustodial parents face, such as layoffs, wage cuts, and work-related injuries.
According to the Urban Institute, less than one in 20 non-custodial parents who suffer substantial income drops are able to get courts to reduce their child support payments. In such cases, the amounts owed mount quickly, as do interest and penalties.
Compounding the problem is the fact that the federal Bradley Amendment bars judges from retroactively forgiving child support arrearages, even when they determine that the arrearage occurred through no fault of the obligor. Bradley is so problematic that Congress will be conducting hearings on the amendment this fall. [EJF note: As of February 2006 no corrective action has been taken][added: as of December 2009, no corrective measures has been taken either]
In one McCracken County, Kentucky case, Francis Borgia, a carpet cleaner in Paducah, slit his throat in the courtroom after being sentenced to two years in jail for being $7,000 behind on child support. According to newspaper accounts, Borgia had become a “deadbeat” after he lost a good paying job working in a casino and could not get a downward modification on his support.
Also victimized by Maze’s list are those who are named in error. For example, according to television station WAVE 3 in Louisville, Maze mistakenly listed James R. Frazier as a deadbeat who owes $57,000, and gave out his current home address. Frazier and his wife Bertha have been erroneously targeted by enforcement officials before, and have spent years fighting to straighten out the error. The agency had previously acknowledged its mistake — and then went ahead and published the erroneous information anyway.
Child support collection agencies are notorious for their errors and bureaucratic bungling, as even supporters of the lists such as the Association for Children for Enforcement of Support admit. A study conducted by ACES revealed that state child support enforcement agencies nationwide had failed to distribute over $500 million which had been paid by noncustodial parents.
Beyond mistaken identity, as in the Frazier case, common agency errors include:
• Mathematical errors;
• Failure to record or transfer records of payments;
• Billing men for children they did not father;
• Failing to stop child support when a child reaches the age of emancipation;
• Accepting custodial parents’ false reports of nonpayment; and
• Failure to update child support orders with later court rulings affecting modifications.
Audits and evaluations have shown that errors comprise a third of all arrearages in some states and counties.
It is true that jailing those behind on child support does sometimes result in some of the arrearages being paid. However, this is usually not because the low income dad they’ve arrested has decided to sell his Porsche and his vacation home, but instead because his family and friends have put up the money to keep him out of jail.
Even when dealing with the small percentage of fathers who have the money to pay but choose not to, Maze’s approach is at times misguided. According to the Children’s Rights Council, a Washington-based advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents. Family courts are often tragically indifferent to enforcing noncustodial parents’ visitation rights. One can understand why noncustodial parents who have been driven out of their children’s lives feel little motivation to subsidize the custodial parent’s filching of their children.
In contrast to Maze’s abusive, overkill approach, state child support systems need to be made more flexible and responsive, so that low income parents aren’t made into criminals because they’ve failed to pay child support obligations which are beyond their reach. As Borgia, who survived his courtroom suicide attempt, noted:
“My only ‘crime’ was my failure to make as much money as the state demanded…I couldn’t quite understand why I was treated so harshly. I’m not a deadbeat dad. I’m a broke dad.”
Here is a definition and explanation of the unfair Bradley Amendment:
In United States law, the Bradley Amendment is the common name given to any of a number of amendments offered by Senator Bill Bradley, the most notable of which is the amendment to US Code Title IV-D (42 U.S.C. § 666(a)(9)(c)) which requires state courts to prohibit retroactive reduction of child support obligations.
The Bradley Amendment was passed in 1986 to automatically trigger a non-expiring lien whenever child support becomes past-due.
a. The law overrides any state’s statute of limitations.
b. The law disallows any judicial discretion, even from bankruptcy judges.
c. The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification. But, like any other past-due debt, the obligee, typically a mother, may forgive what is owed to her.
When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what’s known as an offer in compromise.
The amendment was intended to correct a perceived imbalance between the power of the obligee (usually the mother) and the obligor (usually the father) during subsequent child support disputes. It had been alleged that a significant number of men were running up large child support debts and then finding a sympathetic judge, often in another state, to erase them.
The Bradley Amendment is credited with increases in the collections success of wealthy debtors including a New York plastic surgeon who owed $172,000, a professional athlete who owed $76,000 and a yacht company owner who owed $50,000. The Bradley Amendment standardizes the treatment of interstate child support disputes (estimated at 40% of all cases according to Geraldine Jensen, president of the Association for Children for Enforcement of Support).
According to Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement, the child support system collects “about 58% of current support due.”
The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999). Some believe that the process can never collect the full amount because a high proportion of obligors are unable to make the required payments.
According to Ford Foundation Project Officer Ronald B. Mincy, between 16 percent and 33 percent of obligors are “turnip dads” (obligors earning less than $130 a week). According to one study 38% of non-custodial parents not paying child-support said they lacked the money to pay.
The Health and Human Services numbers above omit closed cases. Typically, cases are closed after four years of inactivity. Open or closed, past-due child support automatically triggers a non-expiring lien. The Bradley Amendment has been a controversial law and has resulted in several notorious examples of unintended consequences including:
a. A veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage being arrested the night after his release for not paying child support while he was a hostage.
b. A Texas man wrongly accused in 1980 of murder. After 10 years in prison, the man sued the state for wrongful imprisonment. The state responded with a bill for nearly $50,000 in child support that had not been paid while in prison.
c. A Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.
In September 1999, Marilyn Ray Smith, the Chief Legal Counsel for the Massachusetts Department of Revenue, Child Support Enforcement Division gave the following testimony before the US House of Representatives.
“As you know, under the Bradley Amendment enacted by The U.S. Congress in 1986, a child support obligation becomes a judgment by operation of law as of the date that it is due and unpaid. In addition, under Section 368 of PRWORA (42 U.S.C. 666 (a) (4)), an administrative lien also arises by operation of law against any unpaid child support. It is therefore not necessary to return to court after each payment is missed to get past-due support reduced to a judgment in order to obtain a lien or enforce a judgment. This means that a child support agency can move quickly to seize income and assets of a delinquent noncustodial parent without first passing through a judicial or quasi-judicial hearing process.”
In 2003, Keith McLeod, author of The Multiple Scandals of Child Support, testified before the Committee on Ways and Means that
“The 1986 Bradley Amendment to Title IV-D forbids any reduction of arrearage or retroactive reduction for any reason, ever. This reinforces the approach that inability to pay is no excuse. Needless to say, there are endless stories of men who are now crushed by a debt they will never be able to pay because they were:
a. In a coma
b. A captive of Saddam Hussein during the first Gulf War
c. In jail
d. Medically incapacitated
e. Lost their job but were confident of another so did nothing until it was too late
f. Did not know they could not ask for retroactive adjustments and waited too long
g. Cannot afford a lawyer to seek adjustment when adjustment was warranted
h. Wouldn’t use the legal system even if they could, feeling it alien from their world, so don’t ask for a reduction when the legal establishment expects them to.
Some say this measure is a violation of due process and cruel and unusual as it removes the use of human discretion from dealing with individual cases, not to mention removing human compassion. But non-custodial fathers do not have the money to fight a constitutional case.”
As of 2004, the Bradley Amendment was being challenged as unconstitutional and was the subject of a repeal effort. [EJF note: As of February 2006 the court case has been dismissed and Congress has made no visible effort to reform the Bradley amendment.]
Other websites about the Bradley Amendment: