Child Support Reform
by Becky Kiely
In Multnomah County, Orgeon, Judge Paula Kurshner has ruled that it is unconstitutional for a non-custodial parent to be required to provide any portion of college tuition for their adult children:
In cases where there is an intact family, with parents married and residing together, the statute has no application. In such cases, the parents have no legal obligation to provide support for adult children and adult children have no remedy for compelling such support. In essence, ORS 107.108 permits a burden to be imposed upon one class of citizens---divorced or separated parents---that cannot in like circumstances be imposed upon married parents residing together. Parents in this latter class are thus immune from such legal liability. Likewise, ORS 107.108 creates a privilege for one class of citizens---adult children of divorced or separated parents---that is not granted to children whose parents are married and residing together. In consequence, by establishing distinctions based upon the marital status of the parent, ORS 107.108 violates the equal protection clauses of both Oregon and United States constitutions.
Based on Judge Kurshner's summary above, the current child support (CS) collection laws are also unconstitutional.
In this regard, in cases where there is an intact family, with parents married and residing together, there is no statute for how much these parents must spend per month on their children. The only statutes come from child abuse laws, in that parents must provide safe haven, shelter, appropriate clothing for the weather conditions and food.
A non-custodial parent (NCP) is forced to pay a certain percentage of his or her income to the custodial parent (CP) each month. For example, in NY, the percentage is 17% for one child and increases for each other child. A minimum of $25 must be awarded to the CP, according to state law.
This is a case of one class of citizens being burdened with circumstances that are not imposed on another.
I am not for a moment suggesting that there should be no financial obligation to one's children, but there needs to be equality.
BOTH parents need to be equally responsible for the well-being of their children. Also, CS should not be used to subsidize the CP's standard of living for their own gain. Child support is just that, support of a child, not a child and his/her parent.
And, it must be noted that CS is NOT merely financial support. All too often, the burden of the support obligation prevents the NCP from having contact with their children. The laws do a great injustice to the children by forcing the NCP to be no more than a wallet. Is it really in their best interests to pad the CP's checkbook while denying them the love, support and teaching of the NCP? Is it not in the best interest of the children to define support as "financial, emotional, loving and equally important from both parents?"
The current laws also create a privilege for one class of citizen - the children of divorced parents - that is not granted to another - the children of intact families. No child of intact families has the entire government looking out for his financial welfare by stating guidelines of how much money a parent must pay for their support.
Again, as an example, NY S413, states,
A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel.Why has this been introduced into law? Is it because our lawmakers don't believe that two adults can come to an agreement on what's right for their children? Or, is it because if the parents make and adhere to their own agreement, the state will realize no profit from the child support collection units via the federal government's support collections incentives?
I don't know if every state has this same statute, but I do know that every state does have equal protection clauses for all and these clauses are being ignored by the CS laws of every single state in this nation.
Our constitution presumes all of us innocent until proven guilty, but the CS laws presume NCPs to be guilty with no chance to prove their innocence. Is not this presumption contrary to our constitution?
CS awards are automatically garnisheed, rather than giving the parent the opportunity to fulfill his or her obligation with responsibility and dignity. Instead, their wages are immediately attached and they are threatened with losses of drivers licenses, professional licenses and tax returns for non-compliance, regardless of the reason for the non-compliance.
Involuntary unemployment and disability are NOT considered valid reasons for an adjustment in CS. If a CP loses his or her job or is on disability, CS awards can be raised or the CP can apply for public assistance to help with the children's expenses. Why is this same benefit not extended to NCPs?
Again, this is a case of a legal benefit (or burden) that applies to one class of citizen, yet not to another. And, why is the CP's wage not attached and an amount deposited into an account solely for the welfare of the children? Why are they not made to share in the financial burden of their children?
It is in the best interests of the children to protect the constitutional rights of their parents. BOTH their parents. Equality is in the best interests of the children, not gender bias, not making the NCP a blank check and nothing more.
The current child support laws are in direct conflict with our constitution's equal protection clauses and this MUST be rectified. We cannot go on allowing the constitutional rights of any citizen, much less millions of them, to be violated by our own government!
© Becky Kiely; reprinted with the author's permission.
Becky Kiely, otherwise known at SecondWivesCafe.com site as "BeckyK", co-moderates our Family Law and Legal Reform forums, as well as the Long-Distance Stepmothering, Good Eats, and PAS forums. She is a second wife with a grown son and five stepchildren.