Redefining Best Interest of the Child: The Crushing Impact of Child Support Debts on Low Income Families in the Minority Communities (a Law Review Article by Rachael Aminu)

What is “Redefining the Best Interests of the Child?”

This is an excerpt of the article written by attorney Rachael Aminu:

The Child’s Development is the Authentic Best Interest

The development of a child is important, and money is not always the solution. The attention and presence of healthy parents can build a child’s confidence and outlook in life – his or her transition into adulthood. Development is not limited to the physical upbringing; it includes the emotional, mental, and social health of a child. It is better to be poor together as a family and healthy in the mind than to have the riches and financial support but miss the social connection and affection of a parent.

The Effect of Non-payment on Custodial Parents

In most households, both parents are unhealthy when child support obligations accrue. The custodial parent is affected because of the weight of parenthood – being present and available to the child at athletic games, social clubs, parent’s meetings, and other school functions. Also, the custodial parent has to carry the financial burden of the child in question and other child(ren) that may be involved, including rent, clothing, food, school fees for extra-curricular activities, etc.

Subsidy of Interest during Incareration

The state has a budget for a reason – to maintain its administrative function as an enforcement agency. These are dollars provided by tax payers as well as the federal government. The main purpose is to carry out its jobs effectively and function for the well-being of the residents, not to their detriments.

Child support payment is for the advantage and benefit of the child, not the government. The Agency including its Collection Unit serves as its name suggest – a collection institution. Their job is to act as a debt collector and ensure the receipt of owed moneys by any legal means possible. The government profits from the dollars collected, understandably so because the agency after all is a business. The purpose of collecting child support payments and enforcing civil contempt proceedings is “where the underlying support payment is owed to the State, e.g., for reimbursement of welfare funds paid to the custodial parent.”[1]

The interests added to the principal amount only increases the burden on low-income incarcerated fathers – which based on case study reveals are mostly minority fathers. In the alternative, interest should be subsidized while a non-custodial is incarcerated.

If interest must be charged, then it should be minimal not overburdening. The interest only capitalizes on poor non-custodial parents who cannot afford to pay their child support in the first place.

Best Interest (Refocusing on the Emotional Development of Children) through The Pay Scheme

As noted in the abstract, the focus of this article is not simply on the aggressive efforts resulting in the detainment of many Black and Latino men, but the emotional development of the child. In United Kingdom, a pay scheme was implemented allowing for the reduction of child support debts where paying parent assume the everyday responsibilities and care of the child.[2]

If you are involved in Court proceedings to divide assets following a divorce or dissolution of a civil partnership and can agree child maintenance you can apply to court to have this agreement turned into a consent order. If the non-resident parent fails to pay the maintenance agreed in the consent order, then the Court has powers to enforce the order. 12 months after the consent order has been in place either parent can “opt-out” of the agreement in the consent order and choose to go through the CMS instead. There are also certain limited circumstances when a resident parent can seek orders from the Court under Schedule 1 of the Children Act 1989 (CA) in addition to seeking maintenance through the CMS, or if a CMS assessment is not available. This includes when: the non-resident parent lives abroad, the income of the non-resident parent is greater that the statutory scheme’s upper limit; which is currently £3,000 per week before income tax and national insurance; the application concerns costs for a child’s education or to support a child with a disability; or the resident parent is seeking a sum of money, for example, to provide a home for the child.

UK’s paying scheme encourages family-based agreement and incentivizes the paying parent on taking responsibility for the everyday care of the child. This is the intention and the spirit behind Texas Child Support laws – the Best Interest standard is not a vague term; rather, it is defined as

UK’s pay scheme system provides a child maintenance option which is called is joint residency, or increasing the amount of time the paying parent spends providing day-to-day care for the child. Based on the UK’s most recent child maintenance scheme, paying parents can reduce their child maintenance up to 50%. The focus of the scheme is increasing the amount of time, hence the reduction in child support obligations. [3] As of March 2017, there is a UK backlog of more than £3.8bn in uncollected child maintenance payments, money owed by non-resident parents that has built up over 23 years owed to approximately 1.2 million people.[4] A spokeswoman for its Department of Work and Pensions said: “We spend £30m a year maintaining the old failing CSA systems where most of the debt relates to children who are now adults, and it would cost the Government a further £1.5bn to attempt to recover it. This situation is unsustainable, and that’s why we are consulting on options to address it.”[5] The department plans to write off majority of the debt.

Likewise, paying parents can be incentivized to provide for the emotional and physical needs of their children by reducing the child support arrears when they can show their increased involvement and provision.

 Accountability

Custodial parents should be required annually to give an account of the bills or expenses paid and spent on the child. This system of accounting is utilized in Probate courts to ensure that the estate of the deceased is not squandered. Each dollar collected is someone else’s sweat and hard-earned money; there should be a form of accountability. Many non-custodial parents use their children as pawns, and they have turned childbirth and parenthood into a profitable business. Hence, they are encouraged to have multiple children – and often times by multiple fathers; likewise, some women fall into these traps of men who promise a better future but fail to carry their responsibilities as fathers. In the Probate Court, the dependent administrator is required to submit an inventory of the estate to ensure that there is no usurping and mismanagement of the properties.

This system and solution is also utilized by the Internal Revenue Service for accounting purposes of a taxpayer. A record is important in demanding reimbursement and the involvement of the court in family matters where the properties of another individual is requested to be seized. When a custodial parent or non-paying parent petitions to the court for the enforcement of a mediated settlement agreement on child support or request the enforcement of Child Support Order, there should be a record and proven documentation of child’s expenses and inventory of amount spent on the child that should have been covered or paid by the obligor.

In the same manner that child support evaders are reported, non-custodial parents abusing the system should be allowed for reporting. The burden of collecting evidence of every-day living of the child and its expenses is on the custodial parents. Moreover, once a child reaches the age of employment – likely 16 years old, the child herself or himself becomes employable and capable of providing for everyday living expenses. Therefore, the amount in support should reduce.

4. Modification of Title IV-D of the Social Security Act: A Proposed Holistic Reformation

In order to completely cure an illness, at times, it is best to go directly to the source for prevention rather than merely treat the symptoms. This Article is not intended to lambast the Office of Attorney General, the Child Support Division, its staff, or the state. It is plausible that each agency and department is working to ensure the system remains standing and effective. However, the state can do better.  This is not only for Texas, but other states as well.

Title IV-D was enacted to relieving the government of the burden of catering to children living below poverty level, i.e. children on governmental assistance programs with financial support. Public policy is in the interest of present fathers, the ultimate goal is for obligors to contribute their share in caring for the children financially.

IV-D relating to Child Support can be reformed to implement alternatives to incarceration, such as planned labor or community service where obligors can pay their arrears with labor – employment at a state facility or private companies that are willing to accept the labor of low-income obligors and compensate them and the state in exchange. The major hurdle for most obligors with no or low-income is the lack of employment; at times, their lack of education or job training is a contributing factor.

1. The profitability of child support for the State and Its ineffective budget

State child support programs routinely send information about child support cases that owe arrears to the Office of Child Support Enforcement’s (OCSE) Federal Offset Program. OCSE uses various enforcement remedies, such as intercepting federal tax refunds, to collect arrears. Any arrears collected are returned to the state child support program to distribute either to the family or to the government.

The OCSE Federal Offset Debtor File lists the amounts of past-due child support each noncustodial parent debtor owes. As of April 2017, 5.5 million delinquent noncustodial parents, or debtors, owed over $114 billion in past-due child support. Approximately 20% of the total arrears is owed to the government. The following data is based on a sample of the debtors in the Federal Offset Debtor File as of April 2017.

 

Sources:

United Kingdom’s Child Maintenance. Retrieved from: https://www.cmoptions.org/en/other-arrangements/parent-lives-abroad.asp

TransferWise: How Can I Reduce the Child Maintenance Amount I’m Paying? Does joint Residency affect Child Maintenance Amount? Retrieved from: https://transferwise.com/gb/blog/uk-child-maintenance-payments [According to the data and information published by References

[1] Nicola Rees, BBC: Verdeshire Derbshire Programme. March 20, 2017. Retrieved from: https://www.bbc.com/news/uk-39293209

[1] Tom Barnes, “Government could write off £2.5bn in child maintenance debts because it fears money may never be recovered, Independent, January 14 2018. Retrieved from: https://www.independent.co.uk/news/uk/home-news/government-csa-dwp-child

 

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