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Why 'delinquent dads' flee
By Rinaldo DelGallo
The Berkshire Eagle

Saturday, March 07

PITTSFIELD

Recently, the Massachusetts Department of Revenue issued its "10 Most Wanted" for fathers delinquent in child support arrears who cannot be found. How can a man end up in such a situation?

In the 19th century, not only was divorce so socially stigmatizing that few wanted it, those very few who were sued for divorce had two valuable protections: (1) you had to demonstrate extreme abuse or adultery (for which you were not equally culpable) and (2) you had to convince a jury of this fact. It was believed that marriage constituted a sacred contract, and that the government dissolution of that contract should only be for extreme cause. This was thought morally necessary because the losing party might suffer loss of custody of the child and have the duty to support the other spouse; the idea of imposing financial awards or awarding custody to the spouse at fault was considered immoral.

But today a divorce may be procured by simply requesting it. This is done over the objection of the other spouse, and there is no need to show fault. This process of dumping one's spouse over the objection of the other spouse simply because one wants to leave the marriage without any showing of marital fault is known as "uni-lateral no-fault" and it is available in 49 of the 50 states. (New York is the exception.)

It gets worse. Even though by statute there is neither a presumption for or against joint physical custody, unless there is something profoundly wrong with the mother, the mother is usually automatically granted sole physical custody (if she will not consent to joint custody). So we have a man who committed no marital fault, and who may be a fit, loving, capable and willing parent, who is denied custody of his child. For this reason there are fathers that call this process "state sponsored kidnapping."

Making a fit, noncustodial parent pay for a child that was taken from him was unknown in English common law. The custodial parent (usually the father) paid for the upkeep of the child, no matter how rich the other parent. The "duty to support a child" historically, and in its customary usage, meant the duty to take a child into one's own home and provide the necessaries of life, not to pay someone else to raise your child.

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There are two serious problems with child support awards. The first is their sheer magnitude - child support is multiple times more than the actual incremental cost of having a child.

The second problem is that the income of the father put into the child support formula is often literally made up. If the judge has a suspicious hunch that a father could be making more money, the judge puts an "attributed" income into the child support formula. Often, the judge gets it wrong; when people could be making more, unless subject to a nearly confiscatory taking or bad work conditions, they usually opt to make more.

For the reason that child support awards are based upon projected future earnings and the future is unexpected, it had been the practice for decades to allow for the retroactive modification of child support orders. But then came the "Bradley Amendment," a federal law passed in 1986 to end the retroactive modification of a child support orders, no matter how clear it becomes that it was unreasonable or even impossible to pay the amount demanded. As soon as a child support obligation becomes due, it is impossible to seek modification, even if one is in a coma.

When fathers do timely file for downward modifications of child support, they are routinely denied. According to the Urban Institute, less than one in 20 noncustodial parents who loses his job or suffers a drop in income is able to get the courts to reduce the support obligation. Outside of Berkshire County, fathers are often repeatedly shouted at and not allowed to speak. They are jailed without the benefit of a jury trial, nor do they have the financial means to pay their way out of civil contempt, all of dubious constitutionality.

The usual protections to save debtors from impoverishment and destruction are not available for child support obligors. No matter how extreme the hardship, no matter how impossible it was to keep up with the child support obligation, there is an absolute prohibition of discharging child support debts in bankruptcy. Moreover, the protections against excessive garnishment are nearly non-existent. Under the Consumer Credit Protection Act, while most debtors are only subject to a maximum taking of 25 percent of their after-tax and other mandatory deductions, fathers who owe child support may have up to 65 percent of their after-tax income garnished. Survival is impossible.

There is no exit. You will lose your rent money, your car payment, the ability to pay for groceries. You will go to jail unless you have relatives who pay to keep you out. The judge has yet to listen to you. You are a pariah. You want to just disappear. And then some do and we wonder why.