History of Child [and Spousal] Support
The best concise record of the history that I have seen, is by Barry Pearson in UK.
While his website is available, it is quicker and easier to read Barry Pearson’s website. The headings of the two articles below, take you to the source website.
As his website might one day be closed, I have taken the liberty of copying the essence into the MENZ website.
There have been quite a few postings recently on MENZ about “Child [and Spousal] Support”, which have taken the viewpoint of the accused father.
If we wish to address the problems that result, for fathers, mothers and children, we need to see these issues also from the viewpoints of taxpayers, beneficiaries and children in particular.
Curiously, although Barry Pearson has written an amazingly detailed analysis of the economics of child and spousal support, he doesn’t have any children of his own.
Roger Gay gives a practical analysis of the lack of realism in child support / poverty alleviation theory. Quite impractical policies have been brought into law. When they haven’t been successful, rather than looking at whether they could ever work, the Governments have just wound up the pressure. Similar to Russia – gas pipeline bursts, so instead of fixing the leak, they wound up the pressure. The fireball eventually killed several hundred people, but there are still plenty left…..
Although economic analyses are important, in my opinion the most important issue is the incentive effects of “Child [and Spousal] Support” and benefit systems on the quality of upbringing delivered to children. These legislations have created large perverse incentives, that increase the hazards to children, that are created by separation and divorce. These incentives also increase the numbers of divorces and separations, by incentivising separation. Mothers who have the least marketplace earning capability, have the largest incentive to claim child custody and child [and spousal] support. Unfortunately there is a fairly high correlation between poor marketplace earnings capability and poor parenting skills, as many of the underlying skills are the same or similar.
No tax without representation!
Are child support payers adequately represented in Parliament?
If not, why not?
Although there is legislation covering individual conflict of interest of MPs, we lack adequate legislation covering group conflict of interest of MPs. Probably the largest unmanaged conflict of interest among MPs, relates to MPs with legal training serving their professional group, ahead of their constituents in general.
In my opinion, the interests of legal workers are quite improperly over represented in Parliament and the interests of many groups of underfunded groups are poorly represented. This then shows up in Parliament protecting legal workers as beneficiaries of Government largesse and legal-worker’s-aid and conversely trampling on basic civil rights of many groups of poor persons.
When accountability is separated from the decision-making, then it is difficult for people to manage their responsibilities.
These issues are difficult, as pregnancy and childbirth move on with their own momentum and it isn’t easy to put the genie back in the bottle…
Our existing judges behaviour/legislation creates destructive separation of accountability from decision-making. If the wrong people are held to account, then someone else is completely escaping their proper responsibility.
If the Government can setup an environment where people can sensibly negotiate, then people have the best opportunity to make the best of their lives. Alas, the converse is presently true. – MurrayBacon.
History of child support in the UK
The territories concerned
Given the dates, it is tricky to present a linear history. Scotland has continued with a different style of family law even since it became part of the Kingdom of Great Britain. Northern Ireland also retains some distinct features. Here is a brief reminder of the evolution of the United Kingdom (although “united” may be a stretch):
Pre-1542 England conquered Ireland in the 12th Century. England annexed Wales in 1284 (Statute of Rhuddlan). Scotland was independent.
1542 England and Wales formally united in the Acts of Union of 1536 and 1542.
1707 Scotland, England & Wales formally united in the Act of Union of 1707, under central government covering all of Great Britain.
1801 Great Britain and Ireland formally united under central government in the 1800 Act of Union.
1921 Most of Ireland became independent, leaving the United Kingdom of Great Britain and Northern Ireland.
Post-1997 Some powers have been devolved to Scotland, Wales, and Northern Ireland. Child support primary legislation is not devolved.
In summary, for at least 4 centuries it has been the responsibility of fathers, in various circumstances, to provide maintenance for their children. At first, it was mainly concerned with illegitimate children – but that was simply because divorce was effectively non-existent for much of the time, so married fathers has a responsibility within the marriage. Typically, the aim has been to reduce the burden on those who would otherwise have to provide for the children. Initially, this was the parishes, later (especially after the National Assistance Act 1948) it was “the state”. At first, the father would be required to reimburse the community. Then, later, he could be required to pay the mother (or sometimes third parties) directly.
Act For Setting of the Poor on Work, and for the Avoiding of Idleness
18 Elizabeth 1, C. 3
This formed the basis of English bastardy law. Its purpose was to punish the mother and reputed father of a bastard child, and also provide for the better relief of every parish. “By an act of 1576 (18 Elizabeth C. 3), it was ordered that bastards should be supported by their putative fathers, though bastardy orders in the quarter sessions date from before this date. If the genitor could be found, then he was put under very great pressure to accept responsibility and to maintain the child”. Macfarlane.
(Start of “modern” divorces)
Introduced a Court for Divorce and Matrimonial Causes, to replace parliamentary divorces. (Not Ireland). This took over the jurisdiction for matrimonial affairs from the church courts and was empowered to deal with child custody, maintenance and alimony. Appeal was to the House of Lords. Divorce was only available in London, so largely unavailable except to well-off people. The earliest Divorce Acts contained express provisions to ensure that the divorced wife should not be left in a state of destitution. However, all other obligations regarding the maintenance of children arose under the poor law legislation. Finer. Stone.
Poor Law Amendment Act 1868
(31 and 32 Vict., c. 122).
Restored to the parish the power to recover from the the putative father the cost of maintenance of a bastard child by providing that, where a woman who had obtained an order against the father of her child herself became a charge of the parish, the justices might order payments to be made to the relieving officer. Finer.
United Kingdom (of Great Britain & Northern Ireland) from 1921
As divorce got easier, it was opened up to more people – the “middle classes” and (horror!) the “working classes”. Why did mothers start to get custody? The law was still biased somewhat towards custody for fathers (until the final change in the Guardianship Act 1973). But mothers were getting custody long before that. I think the answer is simple – in most of the sort of families by then able to get divorced, the tradition was for the father to work and the mother to care for the children. So after separation, the obvious answer was to continue that. He was probably working long hours (and there was little useful childcare), and she was less likely to get an adequate job. The courts reflected the realities of family & working life.
1923 Matrimonial Causes Act 1923 Equalisation of divorce criteria between men and women. Jenkinson 2. Stone.
1927 Poor Law Act 1927 The husband was added as a liable relative by section 41 of the Poor Law Act 1927. Snow 1 .
1934 National Assistance Board The provision of relief for the unemployed (later called ‘public assistance’) by the National Assistance Board.
1942 Report: “Social Insurance and Allied Services” The Beveridge report (Sir William Beveridge). Formed the basis (although with modifications) for the UK’s social security system from the National Assistance Act 1948 onwards. This was unable to decide how support for separated and divorced mothers & children should be handled. Finer.
World War 2 (1939 – 1945)
Just as after World War 1, there was a surge of divorces after Word war 2, and probably for similar reasons, including war-time adultery by wives. Stone.
After World War 2, one thing that happened was more focus on “the welfare state”, and eventually better state support for lone mothers. Another was that women had got used to working during WW2, and didn’t just go back to not working afterwards. So families often had a working mother, although normally far less well paid (although this didn’t start with this war, of course). The trend for mother-custody still appeared to make sense, although not as clear as before. And the cost to the state was increasing.
History of child support in the USA
This history appears at first to have been similar to early English history of child support. In the latter case, communities (parishes) rescued destitute people, including lone mothers and children, often by putting them to work, and then attempted to recoup their costs from relatives such as fathers. The money was limited to amounts needed to avoid destitution, and was claimed by the community, not by individuals such as the lone mother or personal helpers of the lone mother.
Later, the systems diverged. The English (then the UK) child support approaches became an addition to “the welfare state”. The National Assistance Act 1948 saw the state implicitly taking on some of the responsibilities that would once have been between local communities and relatives.The state (taxpayers!) eventually provided universal family allowances (called “Child Benefit” for the last decades). Most other “Western” countries had something similar. Nations with somewhat socialist tendencies such as Denmark were able to have much milder child support systems. Such universal benefits lessened or delayed the need for aggressive child support, such as enacting criminal offences.
In contrast, the USA developed more aggressive child support obligations during the 19th Century, with criminal law being enacted for the “affront” of fathers causing mothers and their children to become a burden on the community. That perhaps reduced the motivation for such universal family allowances. While there were federal initiatives such as AFDC for poorer children, there was little for better off lone parents and their children. In the late 20th Century, AFDC was replaced with TANF (T = temporary), and this will make timely child support even more imperative in the USA. Child support is typically an anti-socialist measure, aimed at reducing welfare spending, and the USA has looked to it to assist with its anti-socialist / anti-welfare policies such as TANF. However, it is probably not (yet?) effective enough for the purpose. GAO.
Pre-19th Century The poor laws
from 1601 The earliest history of child support in the USA came from the inheritance of the English poor laws. These laws were intended to allow parishes (local communities) to recover their costs of keeping people out of destitution from the relatives of those people. The laws didn’t allow those people themselves (or other people) to claim from their relatives.
See: History of child support in the UK
Pre-1776 Child support in the 13 colonies “Child support law existed in the thirteen colonies and has existed in the states since the beginning of the nation’s history”. Gay.
to 1880 Development of civil law for child support See Hansen.
At first, courts developed civil law for child support. This especially enabled communities that kept lone mothers and children out of destitution to claim from the fathers. (This was similar in principle to the poor laws, but intended to be clearer and more effective).
1808 Stanton v. Willson
“American courts in the nineteenth century addressed the problem of dependency among single mothers and their children by creating a legally enforceable child support duty…. One reason for the divergent fortunes of men and women after a divorce was that the transformations in the American conception of children from wage earners to dependents who needed constant nurturing and the trend toward maternal preference in custody decisions combined to require divorced women to bear the burden of raising children who did not work…. American courts in the nineteenth century invented a parental child support obligation in the context of increasing concerns about dependency among single mothers…. When single motherhood began to emerge in nineteenth-century America, the judiciary was the only institution of the American state that could deal with dependency among single mothers and their children: The poor laws were being overwhelmed by population growth and urbanization, and private charities and state poor-relief agencies had not yet appeared. The first child support statutes built on this judicial innovation, codifying a child support system that relied primarily on payments from absent parents, instead of on public supports for families.” Hansen.
(Child Support and Establishment of Paternity Program)
A response by Congress to reduce public expenditures on welfare by obtaining support from noncustodial parents on an ongoing basis, to help non-AFDC families get support so they could stay off public assistance, and to establish paternity for children born outside marriage so child support could be obtained for them. Mandated that the State plan for child support require States to cooperate with other States in establishing paternity, locating absent parents, and securing compliance with court orders.
1988 1988 Family Support Act (Public Law 100-485) Title I of the 1988 FSA implemented a national Child Support Enforcement System based upon the uniform application of a State-developed formula to ensure absent parents were held responsible for maintaining their children. Section 101 requires every State to implement various procedures for immediate and mandatory wage-withholding for all support orders being enforced by the State’s CSEA.
This law required the appointment of an Assistant Secretary for Family Support within DHHS (Department of Health and Human Services) to administer the Child Support Enforcement Program.
Mandated that by 1994, states implement presumptive, rather than advisory, guidelines.
Enacted “immediate” wage withholding.
1994 Work and Responsibility Act of 1994 Included assisting states with child support enforcement.
1994 Small Business Administration Amendments of 1994 (Public Law 103-403) Renders delinquent child support payers ineligible for small business loans.
1994 Social Security Act Amendments of 1994 (Public Law 103-432) Requires states to periodically report debtor parents to consumer reporting agencies.
Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (Public Law 104-193)
(Welfare reform law)
1998 Child Support Performance and Incentive Act of 1998 (Public Law 105-200) Provides penalties for failure to meet data processing requirements, reforms incentive payments, and provides penalties for violating inter-jurisdictional adoption requirements. Incentive payments are based on paternityestablishment, order establishment, current support collected, cases paying past due support, and cost effectiveness and on a percentage of collections. Incentive payments must be reinvested in the state’s child support program.
1998 Deadbeat Parents Punishment Act of 1998 (Public Law 105-187) The law establishes two new categories of felony offenses, subject to a 2-year maximum prison term. The offenses are:
(1) traveling in interstate or foreign commerce with the intent to evade a support obligation if the obligation has remained unpaid for more than 1 year or is greater than $5,000; and
(2) willfully failing to pay a child support obligation regarding a child residing in another State if the obligation has remained unpaid for more than 2 years or is greater than $10,000.
2000 Uniform Parentage Act 2000 This has been drafted in the hope that states will enact it and become more uniform in their approach to parentage, and especially paternity. Among other things, it emphasises genetic testing, but also recognises the strength of acknowledgement of paternity. Morgan.
Page last updated: 18 December, 2003
A BRIEF HISTORY OF PREVAILING CHILD SUPPORT DOCTRINE USA
By Roger Gay, Independent Research Consultant
CHILD SUPPORT POLICY AND THE WELFARE OF WOMEN AND CHILDREN
In the 1980s, there was a public perception that, to a great extent, poverty in the United States had been created by the high divorce rate. This incredible but persistent view, which sprang from what has become known as the political “feminization of poverty” has been discredited (Abraham, 1989), but has not been liberated from the frame of government policy. Major welfare reforms of the 80s moved into the realm of private marital contracts with child support policy that assumes father no longer has contact with his children. Increases in private support levels resulting from federally mandated, presumptive state child support formulas have benefited upper and middle income mothers.
In the 1980s, poverty reached a cross-section of American families regardless of marital status. The chief causes were a decline in wages, especially for young workers, declining effectiveness of government poverty programs, and changes in the job market (Johnson, et al., 1991). The U.S. Bureau of the Census (Current Population Reports), reported that the nations poverty rate was 14 percent in 1985. In that same year, 905,000 women with valid support orders, about 0.4 percent of the population, were living below the poverty line (Solomon, 1989). Including children, the poverty rate associated with valid support orders was approximately 1 percent.
In 1985, 7.8 million women were eligible for private child support. Of those, 23 percent were living below the poverty threshold. The 905,000 women with valid support orders living below the poverty threshold represent 11.6 percent of the number of women eligible; only about half those that were living below the poverty threshold. This pre-reform figure is remarkable given the higher rate of divorce among the 20% of American families with the lowest income and the financial havoc that results from divorce.
The most prevalent reported cause of non-payment of court ordered child support is unemployment (Young, 1975; Chambers, 1979; Wallerstein & Huntington, 1983; Pearson & Thoennes, 1986; Sonenstein & Calhoun, 1988; Braver, et al., 1988). Braver, Fitzpatrick, and Bay showed that between 80 and 100 percent of due child support was paid voluntarily by divorced fathers who are fully employed.
Envisioned to reduce spending, the Child Support Enforcement Program suffered a net loss to the taxpayer of at least $186 million in FY 1990. The program has lost money for at least two consecutive years. The federal program deficit was at least $526 million (OCSE, 1990). Support enforcement administration (extending all the way to the local district attorney’s office and officials of family or domestic relations courts) has benefited from federal tax transfers under the IV-D program (OCSE, 1990). In 1990, Dick Darman, Director of the Office of Management and Budget, reported to Congress that there had been similar accounting problems in both the AFDC and Foster Care (FC) programs (referring to GAO reports).
Single female headed households have a poverty rate more than twice that of the general population. Between 1960 and 1988, the number of births to unwed mothers doubled. In the mid-80s, Garfinkel and McLanahan reported that; “National data on child support awards indicate that only about 60 percent of the children who live with their mothers and are potentially eligible for child support receive an award at all.” In addition, they pointed out that; “most noncustodial parents of AFDC [Aid to Families with Dependent Children] children do not earn enough to pay as much child support as their children are already receiving in AFDC benefits. … even the best imaginable program would still leave a large proportion of the AFDC caseload poor and dependent on government.” If enforcement measures do not improve collections, Additional government costs for experimental programs will run into billions of dollars. (Garfinkel and McLanahan, 1986)
“Congress does not have general authority to pass or enact laws dealing with family law issues, unless there is a connection or ‘nexus’ between such legislation and one of the areas in which it is authorized to act.” (Solomon, 1989) In 1974, Senator Russell Long perceived a connection between “fathers who abandon their children” and a growth in AFDC spending. This led to the original federal child support and paternity legislation enacted in January 1975, as Title IV, Part D of the Social Security Act. Child support enforcement services are required for families receiving assistance under AFDC, FC, and Medicaid programs.
Emphasis shifted in the 80s. Assistance in the establishment of paternity, a prime motivation in 1974, was absent from The Child Support Enforcement Amendments of 1984. A token commitment appeared in the Family Support Act of 1988. A new requirement, with no apparent relationship to enforcement, appeared in the 1984 legislation; that each state establish state-wide child support guidelines to be used as advisory tools. The legislation received support from NOW Legal Defense Fund, National Women’s Law Center, American Public Welfare Association, National Council of State Child Support Enforcement Administrators, and the National Governor’s Association. Representative Kennely, sponsor of the 1984 Amendments, remarked during the House debate that the reason traditionalists and feminists could support the bill was because both groups agreed that parents should take responsibility for their children seriously.
As Garfinkel himself admitted; if everyone in the nation received maximum welfare payments regardless of income, there would be no-one left to pay for them. He imagined solving this problem by dramatically modifying his own basic proposal. He proposed a special “tax” on all non-custodial parents, with all custodial parents as the exclusive non- means tested beneficiaries. Applied to all families, this is not a government welfare program reform, but a proposal for divorce reform similar to Weitzman’s widely publicized proposal on alimony stated in her popular book, The Divorce Revolution.
According to Weitzman, the vast majority of divorced women are entitled to a large share of their ex-husband’s future income for life in order to maintain their independent standard of living at the level they would have enjoyed if they had remained married. She also hypothesized that men become wealthy as a result of divorce. Weitzman’s thesis and data have been widely criticized by economists and experts on the subject of divorce (e.g. Abraham, 1989; Braver, 1988; Lazear and Michael; 1988; and Haskins,1985).
Courts have long since recognized that such extreme ideas did not fit the equity principles which considered the needs of children and the relative ability of parents to pay (Smith v. Smith). Garfinkel and Melli (1990) later raised the question of established child support doctrine in a paper comparing Percentage-of-Income schedules with Income-Shares, but left it to others to formulate a specific proposal.
Many economists contend that the Consumer Expenditure Survey is the best single source data base available for study of family spending patterns. As pointed out however, child support doctrine cannot be prophesied from its data. In order to develop better guidelines, focus must first shift from cost of children studies to child support policy. Economic studies are by themselves, unrelated to the precepts of “just and appropriate” child support awards that, according to the language of the Family Support Act, were expected from greater dependence on technology. In the context of rational policy, technologists must then develop appropriate ways of applying the information we have on the cost of raising children.
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