Why Child Support Reforms Need Reform|
Roger F. Gay
Project for the Improvement of Child Support Litigation Technology
In 1985, a psychology professor working on a grant from the United States Office of Child Support Enforcement (OCSE) reported that child support "collections" could be increased to more than two and a half times what actual awards had been.  The author, Ronald Haskins later became a staff member for the Ways and Means Committee of the US Congress. One of his duties is to advise members of Congress on child support reform issues.
Haskins' report was entitled, Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families. The title is worth thinking about because it does tell us the subject of his report. The word potential tells us that Haskins was looking for some maximum imaginable amount, which must be estimated using unrealistic assumptions. The phrase Income Security of Female-Headed Families tells us that the focus is not exclusively on child support. The term collections also gives us an eerie feeling, as if the author was not aware that the vast majority of child support payments had been made voluntarily; that is without the involvement of collection agents.
It is rather easy to do what Haskins did. You do not need federal funding to do it. Take the amount of child support awarded today. Multiply that amount by two. If you then explain that use of your formula would result in awards totaling twice as much as before, you will have performed a "study" on par with Haskins'.
Haskins' "model" was later adopted by Robert Williams of Policy Studies, Inc. He was hired by the National Center for State Courts and the U.S. Office of Child Support Enforcement to "provide technical assistance to the states in developing their child support guidelines."  Robert Williams is a child support collection entrepreneur. His collection business takes a percent of the amount paid. Therefore, increases in the amount of child support awarded translate into increased profits. 
The main point is what Haskins' report was not about. It was not about finding the appropriate amount to be awarded in each child support case. This is an extremely important point. Haskins' idea that child support "collections potential" could, absent any legal or scientific justification, be two and a half times higher was repeated again and again by reform minded researchers and lobbyists. But in much of the repetition it was implied that Haskins had shown that awards should be two and a half times higher. That is a huge and important error attributable to one single word.
Even more bizarre is the claim made by both Haskins and Williams (and others) that their formulae corresponded to traditional child support law in the states. At the same time they were predicting that use of their formulae would produce child support awards that (on average) are two and a half times what judges had awarded under existing state law. Such a dramatic difference in the outcome is contradictory evidence. Haskins' model has enjoyed political acceptance in the states even though it has never been found to correspond to any set of rational principles for making a child support award.
A blind repetition of Haskins' idea was made by economics professor David T. Ellwood in one of his books. Ellwood became an assistant secretary in the Department of Health and Human Services at the beginning of the first Clinton Administration. His job was to oversee the work of the OCSE. That included reporting to Congress and commenting on child support reforms as well as involvement in the OCSE's role in advising and approving state implementations of federal reforms.
Prior to his appointment, he was quoted, or misquoted in the media and by various "experts" were interviewed on national radio; who discussed the claim as if it was the result of a new study confirming Haskins' finding rather than just a repetition of Haskins' idea. In fact, Ellwood had never actually studied of the question on his own. Nonetheless, the public was being told once again that fathers had not been living up to their obligation to support their children. And they were being led to the false belief that increases in child support awards would reduce the welfare related tax burden.
By that time researchers were used to misinformation related to divorce issues. The most famous case was that of Lenore Weitzman. In her book, The Divorce Revolution Weitzman had made the claim that as a result of divorce the standard of living of divorced women dropped by 73 percent and that of divorced men increased by 26 percent. This claim was repeated again and again by researchers and the media, and even once in a budget proposal from President Clinton. This was likely the beginning of the era in which the public was to be convinced that fathers were not contributing what they should following divorce.
Researchers however quickly noted that Weitzman's figures were too far from those of several other studies on the same question. Although it was later confirmed that Weitzman's conclusions were wrong, they nonetheless had a powerful impact on public impressions and on national policy, especially on child support reforms. Even though we know that the alleged facts upon which these policies are based are wrong, there has nonetheless been no movement in Congress, or in the states to the extent they have discretion, to correct the policies.
Haskins' report is not the end of the story. In the early 1990s a great deal of valid criticism was leveled against new child support law, and particularly against the arbitrary child support formulae used in the states. Fathers rights groups made headway. Each month it seemed less and less likely that they would be stuck with the "deadbeat dad" image forever.
Elaine Sorenson of the Urban Institute wrote a paper entitled, Non-custodial fathers: Can they afford to pay more child support?  Even though there were still single mothers on welfare, Sorenson found that divorced fathers had money. In the minds of many who repeated Soreson's findings, she had confirmed that increases in child support awards were justified and more enforcement efforts were needed to extract money from the deadbeats.
David Ellwood was apparently not yet out of the habit of blindly copying other people's bizarre conclusions. In a 1996 article for The American Prospect, Ellwood wrote;
Based on surveys of absent fathers, Elaine Sorenson of the Urban Institute estimates that more than $48 billion for children could be generated every year by a system of child support that found every absent parent and collected money according to the simple formula now in use in Wisconsin. Current collections are just $14 billion.
It's like history repeated itself all over again. Just look at the title. Again, the subject was not how much fathers should be paying in child support. What Elaine Sorenson had found was that after paying the arbitrarily high amounts of child support, a la Haskins, that were being awarded by that time, some fathers still had money left over. You don't really need to be a researcher to sort this out. Yes, some fathers still had money even after making their child support payments. But not all fathers.
Arbitrarily increasing the amount of "child support" paid by an upper middle class divorced father to a remarried upper middle class mother does nothing to decrease the poverty of an uneducated never married mother who has not established paternity.
If Sorenson's findings provide an impetus against lowering child support awards and decreasing focus on enforcement, then the goal of child support policy is to take everything until all fathers become dead broke. Child support reformers have officially established themselves as the new robber-barons. Unlike the robber-barons that built the railroads, this new breed is producing nothing of economic or social value.
What should fathers pay?
Project for the Improvement of Child Support Litigation Technology began in 1989 to work on the scientific and technical details involved in development of better child support guidelines.  One of the key activities in the project has been a review of traditional child support law and its correspondence with realistic ideas about sharing the obligation to support children. A key finding of the project is the minimum statement of principles required for making a just and appropriate child support award.
Three fundamental principles are considered to be necessary and sufficient.
1. Child support is for the care and maintenance of children.
2. Both parents have an equal duty to support their children.
3. All relevant circumstantial information may effect the amount of the award.
The official position taken as a result of this finding is that all three principles must be explicitly stated in each state's child support statute. They must be stated in such a way that each child support award is based on the three principles. To accomplish this, they must be stated in statute in such a way that individual parents can appeal directly on the basis of these principles when attempting to show that the guideline result is unjust or inappropriate. Without such principles, neither a parent nor a judge has a legal foundation for explaining what "just" or "appropriate" means. 
With these principles as a guide, we can now look back at Haskins' claim that traditional child support awards could be increased two and a half times. We can do so especially well in hindsight because of the use of the idea in the "technical advice" provided to states by collection entrepreneur Robert Williams.  Every state has followed Williams' advice to a great extent, arbitrarily increasing child support awards throughout the country. We can therefore rely on actual current child support law in the states to fill in details not covered in Haskins' or Williams' reports.
Unfortunately, most states do not state the principles above. In fact, many states use none of the three principles either in statute or in the design of their child support guidelines. The first principle merely states a basic definition of "child support." It says that child support is for support of children. In a previous article, it was shown that much of what is currently awarded as "child support" is not actually child support. 
States do not apply the second principle, known as the equal duty principle, in child support award decisions even though some legal experts believe that it is Constitutionally mandated.  Given all the emphasis on a father's obligation to support his children and all the billions of dollars spent on enforcement, this is an important observation. The reforms were planned and executed in recognition of the obligation of only one half of all parents to support their children - fathers.
What does that say about Haskins' estimate that child support awards could be increased by two and a half times? Although there is some difference in income between custodial and non-custodial parents, the inclusion of twice as many parents supporting the same number of children would show that only somewhat more than half the child support money is actually needed from those who make child support payments.
The third principle tells us that just and appropriate child support awards can only be made if we take the details of the circumstances of parents and children into consideration. One of the most important details which is not adequately dealt with in current guidelines is the financial contribution made by non-custodial parents during visitation and by co-parents carrying out shared parenting arrangements.
PICSLT produced two reports on credits for visitation and shared parenting during 1999.  It was found in earlier studies that fair share credits for typical visitation periods of up to 25 percent of the year should result in reduction of the child support award from 25 to 50 percent. 
Let's use an imaginary high end for what effect the application of the principles above would have on Haskins' estimate and Williams' Income Shares guidelines. Let us say that we have a case dealing with a custodial and a non-custodial parent who have equal income, and that each is more than capable of supporting a home on their own. Their equal ability to pay implies that each should contribute half the amount needed to support their children. If we had only recognized the obligation of one parent as opposed to two, then we would end up thinking that the award needs to be twice as much as it should be.
But let us also say that the children exercise a somewhat typical visitation schedule totaling 25 percent of the year. By applying a traditional cross-credit for visitation, the non-custodial parent is eligible for as much as a 50 percent reduction in child support. 
In this high-end example, it can easily be estimated that the award made without application of the three principles has the potential of being four times what it should be.  (Divide by two in order to include both parents and then divide by two again for the visitation credit.)
Custodial and non-custodial parent income is not always equal. Conditions are not always right for a full 50 percent reduction in recognition of normal visitation. There is obviously however a great deal of potential for reductions in child support awards to bring them to a reasonable level. And in this article, we have only looked at two of the errors that exist in current guidelines.
In conclusion then, we should recognize that fathers rights groups have been right all along. Credible research showing that child support awards needed to be increased has never existed. (Nor has it ever been shown that increased enforcement would be beneficial, and it has for the most part not been.) States need to reform their laws in order to meet the federal requirement to assure a just and appropriate child support award in each case.
For an additional list of researchers who have contributed unsupported and unsupportable claims related to major domestic relations issues, see Divorced Dads: Shattering the Myths, by Sanford Braver; (New York: Jeremy P. Tarcher/Putnam, 1998) Reviewed in Fathering Magazine http://www.fathermag.com/news/3786-DDads.shtml )
1. Haskins, Ronald, Andrew W. Dobelstein, John S. Akin, and J. Brad Schwartz, Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families, Final Report, Grant #18-P-00259-4-01, Office of Child Support Enforcement, April 1, 1985. (April Fool's Day)
2. Technical assistance to the states in developing child support guidelines was mandated by Congress in the Child Support Enforcement Amendments of 1984.
3. Johnston, James, Child Support Policy and Robert Williams, Fathering Magazine http://www.fathermag.com/907/child-support/
4. Sorenson, Elaine, Non-custodial fathers: Can they afford to pay more child support?, The Urban Institute, February 1995. 5. Project for the Improvement of Child Support Litigation Technology http://www.geocities.com/CapitolHill/5910/index.html
6. Fitzgerald v. Fitzgerald, 566 A 2d 719 (D.C. App. 1990) Note that a state's child support guideline review committee also has no basis for determining that a state's guideline produces appropriate child support awards. Review to assure appropriateness of guideline results is required by federal law to be carried out in each state at least once every four years.
7. Robert G. Williams, Development of Guidelines for Child Support Orders: Final Report, U.S. Department of Health and Human Services, Office of Child Support Enforcement, March 1987.
8. Gay, Roger F., The Alimony Hidden in Child Support, Fathering Magazine, http://www.fathermag.com/906/alimony/
9. Both Haskins and Williams' "Income Shares model" use both parents' incomes in the calculation. Note however that the decrease in the payment resulting from this procedure is offset by an arbitrarily high numeric table value claimed to represent an amount spent on children by intact families. In his report (reference 5 above) Williams says that using both parents' incomes in the calculation can have a psychological effect; leading the parents to believe that they are sharing the cost of raising their children.
10. How to adjust for visitation and shared parenting, September 1999 and design study; Will fair share adjustment for shared parenting and visitation lead to more intense argument over the amount of parenting time granted to the non-primary parent?, November, 1999. Both are available at the PICSLT web site, reference 3 above.
11. This is not a rough bounded estimate of the total aggregate reduction in child support nationwide. Depending on individual circumstances, including the custodial parents ability to support herself in a home, reductions in individual cases should range from about 25 to 50 percent; based on traditional cross-crediting principles.
12. Cross-crediting also accounts for the custodial parent's obligation to continued financial support during visitation. Thus, the reduction is 25 + 25 percent. As a reality check, note that the ncp pays 100% support during visitation, which is 25% of the total support needed if visitation amounts to 25% of the year. If his obligation is for 50% of the total, he sends 25% to the custodial parent in child support payments. Therefore, 25% visitation would reduce his child support payments by half. (25% of the total rather than 50%)
13. Actually, without basic rational principles as a basis for awards and the design of child support guidelines there is no limit to what the award can be.
Copyright 2000 Roger F. Gay.