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Importantly, the stronger penalties urged by the Act did not produce the desired results.[64] This stems from Congress’ failure to address the reasons for fathers’ non-compliance, which are diverse and complex. Additionally, as this Article argues, in many cases, there is simply no financial incentive to pay child support.
2. Greater Focus on FathersThe bifurcation of rights and responsibilities discussed above also made it easier for advocates to convince the public that more financial support was needed from fathers. A popular book added fuel to the fire, “claim[ing] that, after divorce, women’s standard of living declined by 73% while men’s standard of living increased by 42%.”[65] Despite being wrong, and acknowledged as such by the author herself, these figures “have been convenient for advocates and have become ingrained in both the popular culture and academic circles.”[66]
As one might expect, politics have played and continue to play a major role in shaping child support policy. From the early 1900s to the 1960s, social workers largely shaped the child support debate.[67] “They proposed offering mothers who received Aid to Families with Dependent Children much more than cash assistance to support their children . . . and direct[ed] them to all of the in-kind benefits for which they qualified, [including] job training and educational programs.”[68] In the 1970s, the social workers lost control in favor of conservatives,[69] who brought enforcement of child support to the forefront “with a single focus: welfare cost recovery.”[70] As the number of female legislators grew in the 1980s,[71] we saw a change of focus back toward the family. Not only did strong enforcement of child support obligations for families on welfare continue, but coverage expanded to non-welfare families.[72] In the case of non-welfare families, financial support was sent directly to the family, instead of going through the state’s hands first.[73]
Today, it is not clear who is at the helm.[74] We are seeing an increase of advocacy on behalf of fathers, which reflects greater concern for the father, including “forgiveness for arrears,” more equitable child support guidelines, and “a revamping of all state award formulas to reflect the true cost of child rearing.”[75] It appears that some states are already responding to these concerns.[76] While it is unclear where the law will eventually settle on this issue, the pendulum appears to be swinging back to the middle.
3. The American Legal SystemThe American legal system has had to adjust to changes in societal attitudes toward welfare and child support. Because there was no legal underpinning for child support in the English system, it was said that the American justice system had to “invent the common law notion of child support.”[77] Apparently, “English law [only] provided . . . that all parents should support their children, [and that] no third party—including a mother—could attempt to collect money from her former spouse to help her raise her children.”[78] This was in essence the concept of joint and several liability. If both parents are responsible to support their children, when one parent discharges their responsibility they forfeit their right to sue for compensation.
The courts first changed their views by recognizing the right of a third-party benefactor to sue a father[79] for necessities that the benefactor provided to a dependent, so long as the benefactor proved that the father failed to provide such resources.[80] The benefactor could be a relative, a family friend, or a merchant.[81] Once this principle was laid out, it was an easy step to extend it to a former spouse.[82] Today, there is no question that a custodial parent can sue the non-custodial parent for failure to pay child support.
B. The Rise of the Deadbeat DadAs the mood of the country turned in the 1970s, the emphasis changed from helping the abandoned woman and child to making the unsupporting father pay. A new moniker was needed because Gerald Ford’s “runaway pappy”[83] of the 1950s would not work for the 1970s. The proponents of stronger enforcement needed a battle cry that would capture their frustrations. Hence, the “deadbeat dad” was born, signaling a renewed vigor by the government to chase these men who were avoiding their responsibilities. Use of the term was politically effective because it instantly painted a negative picture of the non-custodial father.[84]
Over the past few decades, we have been experiencing a war against the deadbeat dad, with penalties including felony charges, non-renewal or revocation of professional licenses, jail time,[85] and even offers of government sponsored vasectomies.[86] Proponents of these harsh punishments argued that the father living alone saw a drastic improvement in his lifestyle.[87] They inflamed public outcry by publicizing anecdotes, such as the deadbeat dad driving a Mercedes-Benz while his children starved.[88] As we have seen above, they also used unreliable statistics to make their case.[89] The proponents of stronger child support enforcement laws have been largely successful at painting the deadbeat dad as one of “the worst type[s] of villain.”[90] Some states even have a “most wanted list” for deadbeat dads.[91]
1. The Enforcement Rationale: Going After DadIncreasing child support delinquency coincided with the rise of modern political conservatism in American politics. Some credit former President Gerald Ford for changing the focus of the child support debate away from providing support to the mother and child and more toward actively pursuing the deadbeat dad.[92] Conservatives were greatly concerned about the increase in welfare budgets and considered the rise in the number of deadbeat dads to be a direct result of the “permissiveness” of the system.[93] They charged that Aid to Families and Dependent Children (“AFDC”) rules simply permitted fathers to walk away from their obligations.[94] It also did not help that by the 1970s, social workers no longer controlled the welfare and child support agendas.[95]
Conservatives are right in several respects, notably with regard to their focus on the absentee father, but also by pointing out the link between child poverty—welfare—and broken families. First, the parent overwhelmingly most likely to fail to pay child support is the father.[96] The overall rate of noncompliance with child support can be more than 50%.[97] The dollar amount of this delinquency totals about $4 billion annually and an accumulated $34 billion as of 2000.[98] Indeed, providing federal aid to the mother and child does create a disincentive for the father to pay,[99] though cutting aid is not called for by either side of the aisle. Second, a correlation exists between child poverty and the single-parent household.[100] A 1995 survey revealed that only 33.1% of black children lived in a two-parent household, compared to 75.9% of white children.[101] This same survey found that 16.2% of white children lived in poverty compared to 41.9% of black children.[102] To many, the socially and fiscally responsible approach to the problem was to key in on the fathers.
2. A Moment for PauseWhat if the Mercedes-Benz stories were not true? A growing contingent of father’s rights groups paint a pathetic figure that markedly contrasts with the caricature of the “deadbeat dad” living the high life at the expense of his children. These groups point to statistics indicating that the custodial parent often has a higher standard of living than the non-custodial parent.[103] In part, the standard of living discrepancy is attributed to custodial parents who use solely support money for their children without supplementing it with their own income.[104] Thus, the counter-narrative is written, telling of pitiful fathers living in “a room furnished in early salvation army, an unmade bed, a bare bulb, a john down the hall, and a lonely man choking down meals of crackers and cheese.”[105] Fathers’ advocates argue that the “deadbeat dad” is largely a myth and that the reality is that a lot of fathers are simply “dead broke.”[106] In short, they are claiming that the “country’s monomaniacal zeal to catch and punish ‘deadbeat dads’ produced an inherently inequitable and unjust [system],”[107] that does nothing more than “[rob] Peter to pay Paul.”[108]
3. Is There a Middle Ground?The truth might be somewhere in the middle. Taxpayers should not have to foot the bill for fathers who simply refuse to pay their bills. This should not be seen as a conservative position, simply a reasonable one. On the other hand, as we will see later, criminalizing this behavior and spending billions of dollars has not produced the desired results. We should, therefore, look at the reasons why responsible men become deadbeat dads and we should not blindly follow reactionary measures.
One of the major reasons for a man to become a deadbeat dad is the high amount of child support he is forced to pay. In some instances, child support payments and taxes amount to 44% of the father’s income.[109] This puts him in an untenable situation, and should he have a second family, they too are adversely affected.[110] The father, thus, has to choose between paying beyond his reasonable means, and not paying at all.[111] More idiosyncratic rationales for non-payment of support include feelings of being wronged by his previous partner, or that if by paying child support, he tacitly acknowledges responsibility for the failed marriage.[112] In certain situations, some men approach marriage and child support as tantamount to a quid pro quo arrangement in which the husband and father financially supports his wife and children in exchange for the wife’s maintenance of the household and domestic companionship. Once this bond is broken, the divorced man sees no reason to continue supporting his children.[113] Still, other men withhold support of their children to take revenge on their former spouses.[114]
In sum, there are many reasons why a man could become a deadbeat dad. We should recognize this fact and also recognize that the war on the deadbeat dad is not working. As we will see later, casualties of this war include the father and his children.[115] It is not idle speculation to suggest that, without negative consequences, some men might never pay their child support. We should, therefore, keep the stick but also provide a carrot to the deadbeat dad.
C. The Stick Approach—Pros and ConsAlimony payments are deductible by the payor spouse and includible in the payee’s income.[116] The reason for the deduction grew out of concern that the payor spouse would not be able to make these payments due to the high rates of the federal income tax during World War II.[117] While income tax rates have considerably decreased,[118] the favorable tax treatment of alimony payments has remained. Regarding child support payments, such a holistic approach has never been taken. The non-custodial parent is seen as responsible for the economic well-being of his children, and this responsibility does not end when he leaves the home. The enormity of child support delinquency, and corresponding governmental efforts to remedy the problem, resulted in the criminalization of the child support system.[119] This can be considered a war on the deadbeat dad and very little incentive has been given to encourage him to pay his child support; he is only offered a stick. The yearly costs of the OCSE are estimated at $3 billion.[120] Despite massive expense, evidence is mounting that little progress has been made.[121] The GAO’s estimate that up to 66% of non-custodial parents simply cannot afford to pay is an indication of why success is slow in coming.[122]
In addition to being ineffective in making the father pay, the stick approach has other negative consequences. For very poor men, the cost of collection is often more than what is owed.[123] Additionally, stronger enforcement efforts force more men into the underground economy, with the resulting loss of taxes for the government.[124] Such efforts also discourage second marriages and take away the benefits of marriage for men, such as decreased mortality, higher income, and lower alcohol abuse.[125] The very purpose of stronger child support enforcement by the federal government—that is, to increase child support payments—has been questioned, because in actuality the government spends more money on collection efforts than it collects.[126] In sum, stronger enforcement efforts do not benefit children and may even leave them worse off.[127] A contrary argument is that fathers who pay more tend to have more contact with their children—which is a good thing.[128] The trick is to create an environment where men will be more willing to pay their child support obligations. One way to do this is to ensure that child support payments go to the children, as opposed to their mothers.[129] Fathers who are suspicious that some of the money does not go to the child might be right: An estimated $1 out of every $5 of child support is actually spent on the child.[130] Additionally, in some cases, the custodial parent can end up having twice the spending money as the non-custodial parent.[131] The system does not make sense because if the child is treated as an economic good, the deadbeat dad bears the burden of paying for the good (child support) and gets no benefit of that good (living with the child).[132]
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