Time for the government to act on child support issues - Katrina Legarda

Posted at 04/23/2008 12:58 AM

KAT'S EYE

By KATRINA LEGARDA

It is time the Government does something about our laws regarding support. Wherever there is a legal programme, the questions we lawyers have to answer are more often than not about how a woman can get support for her children. 

 

 

It is time the Government does something about our laws regarding support. Wherever there is a legal programme, the questions we lawyers have to answer are more often than not about how a woman can get support for her children. In the United States, a father who runs away from the obligation of support becomes a fugitive from justice. It is apparently a federal offense, just like organized crime. I found a website that gave me some idea of the laws in the United States. Some of this is followed in the Philippines, and I so indicate.

"Support" is a payment that a non-custodial parent makes as a contribution to the costs of raising her or his child. "Non-custodial parent" is the parent who does not have the children living with him.

"In the mid-1990s, in the United States, child support became a topic of urgent U.S. national discussion. The system that awards and enforces child support was declared inadequate by state and federal policy makers. Failures in the system were blamed for child poverty rates, long-term dependence on government assistance, and the "feminization of poverty." Courts drew criticism for awarding child support inconsistently and inequitably. These social and economic issues attracted both federal attention and reform efforts.

In the United States in the mid-1990s, nearly half of all marriages ended in divorce and almost one-quarter of all children were born to unmarried parents. Most of the children who lived in single-parent families had a legal right to a child support order. [Take note: we do not have a divorce law, and yet thousands of children are living with single parents.] Child support can be voluntary or court ordered, and can be secured through a divorce decree or a separate action. Increasingly, support orders are issued by state agencies. [Only a court can order a parent to give support in the Philippines, if no voluntary agreement is had by the parents.]

The legal duty to support a minor child belongs to both parents, even if the custodial parent is capable of caring for the child single-handedly. Support is awarded to provide for the child's basic needs, and to allow the child to share in the standard of living of both parents. [This is the same in the Philippines.] Although both mothers and fathers can be ordered to pay support, a 1994 study in Utah found that over a twenty-year period, mothers were required to pay child support in fewer than one in five cases in which fathers received sole custody. A greater proportion of non-custodial fathers were ordered to pay support.

A petition for support is usually begun in a state court where the plaintiff (the parent seeking the order) resides. A model law, the Uniform Interstate Family Support Act of 1992, which many states have adopted, provides that jurisdiction exists where the child or one of the parents resides. Before support can be awarded, parentage (called paternity in the case of fathers, maternity in the case of mothers) must be demonstrated. The would-be payer is entitled to blood tests, but in some states must pay for them. The 1993 federal budget bill required states to offer speedy means of establishing parentage, since parentage disputes can delay a valid child support award. [This is very similar to our laws in the Philippines.]

Child support awards are made by each state's family court system. Most states require that they be based on the best interests of the child. In addition to determining support in contentious divorce cases, courts review stipulations (agreements) between parents and can overrule an agreement that does not adequately provide for children. [This is also very similar to Philippine law.]

Often, courts feel pressure to balance children's needs with their parents' needs. Awards are based on the non-custodial parent's ability to pay, and must allow the parent to remain self-supporting. Many associations of non-custodial parents emerged in the 1980s and 1990s to express their belief that awards were burdensome to the payers, benefited only the custodial parent, or did not provide payers with enough in return. At the same time, more single parents with children slipped into poverty than had at any other point in the nation's history. [I do not know of data established in the Philippines, but if you listen to any legal programme any day of the week, I would bet my bottom dollar that our statistics are similar.]

In the mid-1990s, no federal child support guideline existed, mainly because child support was historically a state-controlled issue.

In 1992, $27 billion in child support went uncollected. The U.S. Department of Health and Human Services has estimated that a substantial increase in child support collections could reduce the payments of Aid to Families with Dependent Children (AFDC) by 25 percent. The federal government created the AFDC program in 1935 to enable states to provide money and services to help poor children remain in their own, single-parent homes.


These observations were not lost on the 1994 Senate, which directed the Justice Department to "immediately address shortcomings in enforcement of the law [regarding child support]." Enforcement efforts are administered federally through the department's Office of Child Support Enforcement, but child support recovery units at the state level perform the daily task of securing payment. [Wouldn’t it be wonderful if our own DOJ would take care of our families and our children instead of spouting vitriol against the Opposition?]

The problems surrounding the collection of child support have provoked frustration and ingenuity in states throughout the nation. [Doesn’t this sound familiar?] A major barrier to timely and regular collection is the large volume of child support orders that states are required to enforce monthly. One response has been to divert cases from the court system by empowering state agencies to enforce child support orders. [Calling Senate and Congress: you may not realize how burdened our Family Courts are with the never-ending demands for support. Allowing the DSWD or similar agency to order support would be such a relief, and cheaper than paying filing fees.]

What are the means of collecting support? A primary means of collecting is wage withholding. This requires that the employer of the obligor send a percentage of the obligor's paychecks to the state or county, which forwards it to the custodial parent. Where the custodial parent receives federal public assistance, income withholding is mandatory. Garnishment is similar to withholding, but it is used when the obligor is about to receive a lump-sum payment.

Interception of the obligor's federal tax return is another enforcement tool. In the first seven years after implementing a pilot of this requirement, $1.8 billion was collected. Federal law now requires every state to have legislation for intercepting the tax returns of delinquent obligors and applying them to child support after a review.

Self-employed obligors, or those whose employment is unknown, pose a challenge to collection agencies. In their case, states may rely on the custodial parent's knowledge of the obligor's income and on tax returns to pursue enforcement.

Some states have taken the high-profile approach of publicly issuing controversial "Wanted" posters depicting delinquent obligors. Others have revoked state-issued fishing, hunting, and even driver's licenses as punishment for nonpayment. [Can we do this without violating some constitutional law???]

Interstate orders (orders for support to be paid by a parent in a different state) pose additional problems for enforcement. Although three in ten child support cases are interstate, only 10 percent of the delinquent collections nationwide result from these cases. This has caused child support collection, usually considered a state function, to become an issue of national importance. Although most states have "long-arm" statutes enabling them to retain jurisdiction over obligors in other states, delays result when the laws are not uniform. Failures to collect across state lines are due to heavy case backlogs, multiple and conflicting orders, lack of priority given to interstate cases by the responding state, and an inability to locate the non-custodial parent. [You have heard the story of "Elena", and many other women who have since written me.]

In 1991, the Bureau of Census found that nearly half of all single-parent families headed by a woman live at the poverty level. A report on child support enforcement presented to the Senate in 1994 found that more than one-fifth of all U.S. children lived in poverty. As a result, in the 1990s, reliance on AFDC increased dramatically nationwide.

In recognition that many families require public welfare because a non-custodial parent does not contribute, Congress adopted legislation that created the federal Office of Child Support Enforcement and required states to establish state child support offices. Under the law, services such as locating non-custodial parents, determining parentage, and establishing and enforcing support orders must be provided free to families that receive AFDC. In addition, these services must be provided at very low cost to custodial parents who do not receive AFDC. The federal government requires states to provide these services as a condition of receiving AFDC services." [God – I wish we had the same….]

So, "A concerned mother", who wrote me after "Elena", you may want to check the Australian websites. These may give you some advice on how you can ask for support from your husband who is now living there.

As always, you may write me with your questions through [email protected].