Bucking the Trend

A

Coalition of Parent Support

Whitepaper on California Family Law

By Richard Bennett

February 21, 1998

The California Legislature's recent work on Family Law has followed a series of trends. In 1991-92, measures radically increased child support levels and shifted obligations from alimony to child support. In 1993-94, lawmakers battled over child custody law. With the O. J. Simpson case in the news, 1995-96 was the great era of Domestic Violence legislation, with over 150 related bills introduced. The 1997-98 session is shaping up as the session producing the greatest number of child support collection measures and the most radical attempts at increasing welfare reimbursements.

The Ms. Information Factory

These trends have been driven in large part by a $6,000,000 campaign funded by the Rosenberg Foundation of San Francisco. The foundation, a charitable trust established in 1935 and now run by welfare entrepreneur Bob Friedman, has awarded grants for several years to an advertising agency and a handful of cooperating advocacy groups who've worked diligently to frame family law issues for the media and the legislature in extreme ways. The Rosenberg point of view holds that we live amidst invisible epidemics of child support default, domestic violence, and divorce-related poverty, which can only be cured by "building toward a national program of child support assurance." (Child Support Reform Initiative web page, http://www.rosenbergfdn.org/childsupport.html)

The darling of the Rosenberg groups is an organization based in Toledo, Ohio called the Association of Children for the Enforcement of Support, or ACES. While ACES is usually identified as a "grass-roots" organization composed of single mothers helping each other collect child support, with $375,000 Rosenberg dollars to its credit, ACES is pure Astro Turf.

source: Rosenberg Foundation web page, www.rosenbergfdn.org/childsupport.html

Another Rosenberg-supported group, the National Women's Law Center, was instrumental to the passage of Senator Gary Hart's S. B. 370 in 1992. Hart's bill came just months after a major child support increase recommended by the Agnos Commission was enacted, sufficient to lift California into the upper echelon of states in terms of child support generosity. Using a now-familiar tactic, NWLC's Diane Dodson produced a deeply flawed report based on an unpublished study (which remains unpublished), purporting to show California in 47^th place among states in child support levels, when we were actually second or third.

The Public Media Center put the Dodson report in the hands of media outlets across the state and declared a crisis, to which the legislature responded by pushing S. B. 370 through in the course of a weekend as an "urgency measure" taking immediate effect.

Even prior to the passage of the Agnos Commission guidelines, California balanced low child support levels by awarding nearly half of the nation's alimony awards, a more tax-efficient way of transferring income than the present system.

Election Success

Giddy with the success of S. B. 370, the Public Media Center and other Rosenberg groups staged a shocking press conference in Anaheim two weeks before the 1993 Super Bowl. The lead spokesperson declared a new study showed a 40 percent rise in domestic violence on Super Bowl Sunday. When Washington Post reporter Ken Ringle contacted Janet Katz, professor of sociology and criminal justice at Old Dominion University, one of the principal authors of the study, she said: "That's not what we found at all." Ringle's unraveling of the Super Bowl Myth became a front-page story in the Washington Post, and observers puzzled "how a belief in that misandrist canard can make the world a better place for women." (Cristina Hoff Sommers, The New Mythology, National Review, June 27, 1994.)

The Anaheim press event introduced local media to a new spokeswoman on the always sensitive subject of domestic violence, one who was treated with great deference by the old-guard feminist luminaries like Gloria Steinem who played supporting roles. The spokeswoman was a little-known child actor turned professor of women's law with a long career in Lesbian Rights and Battered Women's advocacy, Sheila Kuehl. Ms. Kuehl was elected to the California State Assembly in the very next election.

Math Test

The Foundation's groups produce a series of annual reports on child support collection in California under titles such as Past Due: Child Support Collection in California. The reports are always slickly produced and distributed to all the major media outlets in the state, where they are the subject of lavish press treatment. Some of the headlines on Past Due stories California voters have seen are: California's Deadbeat D.A.s (San Franciso Chronicle, Monday, May 6, 1996), Battling deadbeat parents: DA's office labeled 'unreliable ally' (Sacramento Bee Dec. 8, 1997), and It's Way Past Due for Deadbeat Parents (San Jose Mercury News, May 2, 1996.)

The Past Due media reports claim that divorced fathers don't support their children. They further claim that the state's child support collection system is mismanaged and ineffective. In reality, most child support orders don't require any management at all: when the Family Court issues an order, a wage assignment is automatic, and money flows automatically without government intervention and without Past Due measurement.

The reports actually deal with data collected from the poorest of the poor families in California, a point made very clearly in their text, but in the magic transformation from study to sound bite they become an indictment of virtually every non-custodial parent in California. The Rosenberg Foundation's organizations themselves quote Past Due studies out of context:

California must improve its effectiveness in enforcing child support obligations. The state collects support for less than 14% of all families requiring support, ranking 45 out of the 54 states and territories. (Children NOW, Children Are Watching Now February Action Alert, February 23, 1998)

A more honest analysis of the data upon which these reports are based suggests that the child support and Welfare Reimbursement levels required of single parents in California are unreasonably high. Why the advocacy groups chiefly responsible for doubling, and in some cases tripling, mandated support costs would be surprised over this finding is surprising in itself.

Realistic Expectations

Even the normally reliable Little Hoover Commission quoted Past Due conclusions in the cover letter and text of its 1997 child support collection report. The Commission's analyst disputed the data, but not the extrapolations made from the data:

The problem begins with bad data. The counties keep track of their own performance numbers, at times defining statistics in ways that suit their needs or make them look good. As a result the State cannot even reliably say how many children are being served or not served by the program, let alone diagnose where the process is failing and needs to be improved. (Enforcing Child Support: Parental Duty, Public Priority, Report #142, Little Hoover Commission.)

How reliable conclusions can be drawn from unreliable, unrepresentative data is a question the Little Hoover Commission refuses to address, even when asked directly:

The Commission…concluded that the State does not collect the information necessary for policy makers and program mangers to fully understand who they are trying to serve and what the program might realistically accomplish. (letter from Little Hoover Commission Executive Director Jeannine L. English to Jay Bowden, October 15, 1997)

What we can realistically expect this system to do for poor families was explained by the analyst with the Urban Institute who produced the Clinton Administration's child support studies:

Between 9 and 19 percent of noncustodial fathers were poor in 1990 and between 27 and 33 percent spent at least part of the year out of work. These figures are particularly stark for black noncustodial fathers, 17 to 55 percent of whom were poor. (Elaine Sorensen, A National Profile of Non-Custodial Fathers and Their Ability to Pay Child Support, November 1996, The Urban Institute)

The implications of a system which routinely sets support amounts beyond the ability of parents to pay are serious:

Poor fathers should be expected to pay child support; But their child support orders should be set at levels commensurate with their ability to pay. The [PRWORA] adds a layer of unfairness to the child-support system, which is already unfair to this population. Fathers who perceive gross inequities in the child support system will turn their backs on it and choose not to comply, taking with them potential sources of increased child support. (Elaine Sorensen, A Little Help For Some "Deadbeat" Dads, Washington Post, Nov. 15, 1995)

The tragic prospect is that some of the fathers forced to turn their backs on the system have to turn their backs on their families as well.

The reality of child support collection is that the vast majority of child support orders are honored to the best of the paying parent's ability. Most support orders are issued by the Family Court in connection with divorces, and most of them don't require collection assistance. Objective analysis of these cases indicates that even before the advent of legislative child support collection measures, support was received in 73 percent of the cases reviewed in Santa Clara and San Mateo Counties (Eleanor E. Maccoby and Robert H. Mnookin, Dividing the Child, Harvard University Press, 1994.)

Some non-custodial parents don't live up to their moral obligations, of course, but the number of these is much smaller than the Rosenberg Foundation would have us believe.

Back to the Bad Old Days

The Rosenberg organizations follow a formula painfully familiar to students of anti-father political strategy in America: first, create a crisis; then dress it up with concern for the poor; finally, push an agenda that benefits only a small group of the highly privileged.

The centerpiece of the Rosenberg agenda is euphemistically called "Child Support Assurance:"

For children in low-income families, child support reform will require improved articulation of child support and welfare. If child support is to be used in lieu of welfare, some sort of child support assurance program will be necessary to assure that children will receive support when non-custodial parents are unwilling or unable to make payments. (Rosenberg Foundation web page, www.rosenbergfdn.org/childsupport.html)

Thus, single mothers are to have their non-employment-related incomes guaranteed, but not married mothers or single fathers. Simply by divorcing, women become eligible for financial support without the restrictions of marriage, the uncertainties of the labor market, or the time-limits of the welfare system.

In the bad old days of the welfare system, before Congressman Phillip Burton reformed it, this policy was known as the "man-out-of-the-house rule," and it's rightly been blamed for the breakdown of inner city communities, the increase in chronic poverty, and the rise in juvenile crime.

We don't want this failed policy slinking back claiming it's been rehabilitated. The wholesale expulsion of fathers from the family is no more desirable today than it ever was.

Supporting the Bureaucracy

Child support, and its demented relative, Welfare Reimbursement, are classic examples of regressive taxation, disproportionately impacting the poor. This is largely because of the expectation built into California law that a recipient of child support should not have to work.

Given that two-thirds of married couples find it necessary for both partners to work in order to make ends meet, it is not realistic to expect a non-custodial parent of modest means to put a roof over his head, food in his mouth, and a car on the road while paying 74 percent of his gross income on taxes, alimony, and child support. As the following example illustrates, this is just what state and federal law require. With two children to support, a child support payor earning a gross income of $2500 per month is left with only $674 per month for his own expenses:
         

If the recipient goes to work at a job paying $2000 per month, and puts the children in daycare for $800, her situation greatly improves, while the payer's gets even worse:
         

source: DissoMaster(tm) V.96-1, (c)1996 CFLR.
child support: $768, spousal support: $483, taxes: $475, medical $100, timeshare: 0

The system is even worse in welfare cases. Welfare recipients are required to sign their child support rights over to the District Attorney, and to fully cooperate with the state in the establishment of a support order. The money the DA collects feeds a variety of federal, state, and county kitties, where it pays for more collection efforts and for a variety of county programs unrelated to poverty. Parents are not highly motivated to comply with this bizarre system.

Instead of paying child support to the system, many welfare fathers give cash to their children's mothers, if they've got it, or buy diapers, clothes, toys and ice cream cones for their kids. Sometimes, the welfare mother helps the father evade support: His good will and under-the-table help are worth more to her than $50 a month. (Joe Rodriguez, The Father Factor, San Jose Mercury News, July 27, 1997)

"Deadbeats," in many cases, are parents efficiently circumventing an unjust law. When the cases without orders and the duplicate cases are removed from the Past Due data, a very different picture emerges: about half of court ordered child support dollars are paid to poor children, and about 80 percent of overall ordered dollars are paid. Given that California law sets child support obligations well above actual, fair-share costs, most of our children are getting all the financial support they need from their non-custodial parent, and certainly all the parent can pay.

The Mother Factor

The children of divorced and never-married parents do tend to live closer to poverty than other children, of course.

Nearly six of 10 children living with only their mother were near (or below) the poverty line. About 45 percent of children raised by divorced mothers and 69 percent of those raised by never-married mothers lived in or near poverty. Children living with their father (particularly if he was divorced) were more likely to be part of a family with a higher median income than those living with a single mom. (U. S. Bureau of the Census, Children with single parents - how they fare, CENBR/97-1, 1997)

A family income just adequate to support an intact family living in the same household won't support two households nearly as well, especially in a state where housing costs are as high as they are in California. Separated families also pay higher taxes than intact families, particularly when only one parent works, since tax benefits go to the custodial parent.

The prime cause of child poverty, however, is the high level of unemployment among single mothers:

While many single parents had jobs, there were 7.4 million [note: of 14 million] children living with single moms who were unemployed or not in the labor force. Children of never married mothers were twice as likely (59 percent) to have their moms unemployed or not in the labor force as children whose mothers were divorced (ibid.)

If all the unemployed, single custodial mothers worked, even at minimum wage jobs, children would have access to an additional $70 Billion in household income. If all the single, non-custodial fathers paid their court-ordered child support, children would have access to an additional $5.8 Billion (U. S. Bureau of the Census, Who Receives Child Support? SB/95-16, 1995.)

Policy makers intent on hounding the Deadbeat Dad waste valuable public resources on a dubious cause. Public policy should emphasize giving a custodial preference to single parents who work.

Government Inaction

State and federal law dictate periodic reviews of the child support level. The California Family Code assigns this responsibility to the Judicial Council:

4054. (a) The Judicial Council shall periodically review the statewide uniform guideline to recommend to the Legislature appropriate revisions.
…
(e) The initial review by the Judicial Council shall be submitted to the Legislature and to the State Department of Social Services on or before December 31, 1993, and subsequent reviews shall occur at least every four years thereafter unless federal law requires a different interval.

The Judicial Council was supposed to conduct a review in 1997. The Little Hoover Commission report previously cited declined to comment on the fairness of the existing formula, deferring to the anticipated report.

The Judicial Council failed to comply with their statutory responsibility to conduct this review. They held no hearings, consulted with no advocacy groups, and produced no report, in essence "flipping off" the legislature, our children, and the people who labor under the considerable burden of the existing child support formula.

Parents obliged to pay child support who fail to comply now face "Debtor's Prison," thanks to the California Supreme Court's ruling in Moss v. Riverside. Those of modest means who do comply are reduced to poverty.

When Paris Welch lost 45 pounds in 1993, she told friends she was on the State of California Diet.

That year, state guidelines increased the child support she pays for her four children by so much she had almost no money left for food.

Some months, she said she went homeless -- sometimes living in her car, other times going from friend's home to friend's home -- so she could afford to eat; when she did have a place of her own, her utilities often went unpaid.

"All this was for children I never saw," says Welch, 35, of Oceanside.

She worked day and night at two minimum-wage jobs -- sometimes as an office clerk or receptionist, or as a cashier at fast-food restaurants. (Barbara Fitzsimmons, Paris Welch, San Diego Union Tribune, Oct. 20 1997)

The Judicial Council's failure to act is unconscionable, and it must be made to comply with its duty.

The Larger Problem

The focus on the financial issues obscures the other, and larger, problems which burden the children of single parents. Compared to children of married parents, children living in single parent homes are many times more likely to join gangs, become pregnant, drop out of school, run away from home, have emotional problems, and suffer from child abuse.

Great Society analysts attributed these problems to poverty, and there was an element of truth in that claim. Poverty is an inevitable consequence of family breakup, for the reasons previously mentioned (the higher costs of maintaining two households and high rates of custodial parent unemployment) and because of child care problems unique to single-parent households. The peer groups children find in poor communities are also likely to consist of other children of single-parent families, and their problems tend to magnify each other. Children who attend school with disruptive peers don't learn as well. Children without financial resources can't buy books, can't enjoy hobbies, can't travel, and have a harder time financing college educations.

But the poverty theory doesn't account for all the effects on children that have been observed by child welfare studies. Children living with remarried parents, for example, can be expected to have at least as much financial stability as those living with their two natural parents, plus additional sums of child support money, yet they still suffer six times as much child abuse as their peers (Robert Whelan, Broken Homes and Battered Children, 1993.) and lower rates of college attendence.

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The most serious problems faced by the children of divorce are emotional.

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Children who blame themselves for their parents' divorce, children who cry themselves to sleep at night because they ache for contact with their fathers, children who feel abandoned, devalued, and discarded are unable to focus on the basic issues of school, positive peer-relations, and preparing for the future.

Some of these problems can not be solved, and we merely kid ourselves if we believe that every child can grow to adulthood on an equal footing with every other child. Nonetheless, public policy in California can make a major difference for most children of single parents by endorsing Joint Custody.

A search of the empirical research specific to joint custody was conducted. Major data-based studies available at the time of this review have been individually summarized and evaluated relevant to findings and adequacy of the methodology as requested. While flawless studies on such a complex subject are extremely rare as indicated by the evaluations, the goal of this report is to provide a synthesis so that the Commission's policy recommendations may be predicated on the best available empirical base.

To minimize some of the confusion in such a highly charged area of study, this review focused on the weight of evidence as determined by both replication of findings and consideration of methodological rigor. This document then reviewed results from 23 studies, providing abstracts of each and summary findings according to criteria of (a) father involvement, (b) best interests of the child standard, (c) financial child support, (d) relitigation and costs to the family, and (e) parental conflict.

On each of these criteria, the report supports the conclusion that joint custody is associated with favorable outcomes. (Beth Doll, Division Vice President for Social Council and Ethical Responsibility and Ethnic Minority Affairs, American Psychological Association, 1995, for the U. S. Commission on Family and Child Welfare)

Despite strong evidence supporting the value of Joint Custody for children, the Rosenberg Foundation's advocates have bitterly opposed it. In the bill analysis of A. B. 999 Child Custody by Assemblyman Harvey (1995), an extremely mild pro-Joint Custody bill, Children NOW, ACES, Sheila Kuehl's California Women's Law Center and Sojourn Center for Battered Women, the Harriet Buhai Center and the National Center for Youth Law are listed opposition.

After passing the Assembly with strong bi-partisan support, A. B. 999 was killed in the Senate Judiciary Committee, where NO votes were cast by Senators Lockyer, Petris, Sher, and Solis, and AYE votes by Senators Haynes, Wright, Leslie, and Calderon, with O'Connell absent.

Since the defeat of A. B. 999, Joint Custody has been selectively endorsed by the California media, who were largely blind to issue during the debate on Assemblyman Harvey's bill:

The system should emphasize shared custody of children in divorce cases. According to the Census Bureau, more than 90 percent of fathers who have joint custody pay child support. (Editorial: When dad doesn't pay, San Jose Mercury News, March 6, 1997)

The opposition of these child support advocates to Joint Custody apparently flows out of a vision of divorce as "empowering women," by redefining the family as a social unit comprised of a woman, her children, her social worker, and most of a man's paycheck. With all respect to the role of women, and role of men, and the value of social workers, the primary issue for all parents involved in divorce must be defined in terms of the needs of children and not with the personal growth of adults.

Supporting the Whole Child

Three basic reforms have to be made to close the gap between what children need and what they get under the present system: changes in the way we issue support orders, changes in our attitude toward custody and visitation orders, and changes in attitudes toward parents.

• Establish orders for Custody along with Financial orders

The most intrusive, draconian, civil-liberty threatening collection laws possible - and we nearly have them in California - it is impossible to collect support absent a court order.

More than 5 million custodial parents [out of 11.5 million] were without awards of financial support from their child(ren)'s other parent. About one-third of those without awards had chosen not to pursue them. Two other common reasons they did not have awards were that they did not want an award and that the non-custodial parent was unable to pay. (U.S. Bureau of the Census, Who Receives Child Support?, SB/95-16, U.S. Government Printing Office, Washington, DC, 1995.)

While a very small number of parents choosing not to pursue support awards may be motivated by fears of domestic violence, most are motivated by the desire to avoid government confiscation of the father's earnings or the capricious desire not to have the father play a role in the child's upbringing.

Where abuse is not an issue, and neither parent is unfit, the system should emphasize Joint Custody. Children who know their fathers and have a healthy relationship with their fathers are supported much better than those who have nothing but Daddy's money to comfort them.

Efforts to establish financial orders through an administrative process endanger children by denying them the opportunity to have custody and visitation orders established in their best interests, and must be rejected.

• Enforce Custody Orders as Vigorously as Financial Orders

Fathers who have regular visitation or custody of their children are much more likely to provide financial support than disenfranchised fathers:
 

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A higher percentage of noncustodial fathers with joint custody paid child support due (85 percent) than did fathers who had visitation privileges only (79 percent), or those who had neither joint custody nor visitation privileges (56 percent.) (U.S. Bureau of the Census, Current Population Reports, Series P60-187, Child Support for Custodial Mothers and Fathers: 1991, U.S. Government Printing Office, Washington, DC, 1995.)

In recognition of this fact, Congress appropriated $10M/yr under the PRWORA in 1996. This money has to be spent toward its intended purpose, making sure that non-custodial parents who want to see their children are able, realizing that half of custodial mothers admit to deliberately interfering with custody. (Dr. Judith Wallerstein, Second Chances)

Senator Calderon's S. B. 779, Custody and visitation enforcement, defines a program for the administration of California's share of the PRWORA Visitation Enforcement funds for the benefit of our children. The program consists of a "Friend of the Court," with the power to order mediation when parents are in dispute over visitation or custody, in the interest of scheduling makeup time for missed visitation. When the issue can't be resolved amicably, the Friend of the Court assists the offended parent in drawing up papers to bring the matter before a judge for resolution. S. B. 779 is modeled after a successful program in Michigan, and it passed the Senate without a single NO vote.

Unfortunately, the measure is stuck in the Assembly Judiciary, where opponents (including the Harriet Buhai Center) raised the specious objection that it would have bad consequences for Battered Women. Battered Women, who comprise some fraction of the divorced population, certainly have many things to fear, but mediation over a court-ordered schedule of visitation is not one of them.

The larger social interest in enforcing the rights of children to have frequent and regular contact with both parents should prevail on this issue, once reasonable accomodation is made for the small group of women with legitimate safety concerns.

It is wrong to pretend that every woman, or even a substantial number of women, live in constant fear of violence from their ex-husbands. Denying a child access to both parents is an act of violence, and it should be treated as such under the law.

• Support Parents
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Poor child support obligors are every bit as much in need of employment and training services as obligees; facing jail time for unemployment, as they do in the wake of the California Supreme Court's decision in the case of Moss v. Riverside, their need is even greater. For this reason, the Sacramento Bee and the San Jose Mercury News both called for obligor access to job training programs in their editorials on Moss.

Parents also need support in learning the skills required to successfully share parenting, parent education programs like Kids Connection and Teen Connection, and support and guidance in developing Parenting Plans. The law itself should be recast to remove references to "Custody" and "Visitation", replacing such prejudicial language with "Parenting Time" and "Parenting Plans," following the recommendation of the U. S. Commission on Family and Child Welfare.

The policy of making non-custodial parents reimburse the government for welfare monies spent on behalf of custodial parents should cease. In the era of welfare time-limits, this policy is destructive to children, especially when a parent is made to pay welfare reimbursement and child support simultaneously. We hold parents who fail to pay for their children's support in contempt; so also should we hold government policies which prevent parents from supporting their children.

Conclusion: Focus on Children

A lavishly funded publicity campaign has allowed a handful of activists to exercise inordinate influence over Family Law legislation in California. Lawmakers must rely on their common sense and their best judgment as parents to put a stop to the policy of expelling fathers from the lives of their children.

Financial support should be structured in a tax-efficient manner, and obligations should be set at a level which is fair and realistic. Custodial obligations should be taken just as seriously as financial obligations.

Financial considerations, and issues of extreme behaviors such as violence, abuse, and addiction should not take center stage in every policy discussion about divorce, custody, and children. The ordinary citizen, whether male or female, single or married, rich or poor, is decent and committed to the family. Public policy should recognize that parents, for all our defects, are better suited to raising children than anyone else, and not place roadblocks in our way.