The Armed Forces as a Model Employer in Child Support Enforcement: A Proposal to Improve Service of Process on Military Members

• Author: Major Alan L. Cook
• Pages: 02

1998] CHILD SUPPORT ENFORCEMENT 153

THE ARMED FORCES AS A MODEL EMPLOYER IN CHILD SUPPORT ENFORCEMENT: A PROPOSAL TO IMPROVE SERVICE OF PROCESS ON

MILITARY MEMBERS

MAJOR ALAN L. COOK1

Any parent who is avoiding his or her child support should listen carefully: We will find you, we will catch you, we will make you pay . . . . People who bear children . . . have an absolute responsibility to take care of them . . . . 2

I. Introduction

With these words, the President of the United States signaled a crack-down on federal employees, including military personnel, who dodge their child support obligations.3 Prior to this action, several news releases proclaimed that there were more than 100,0004 nonpaying parents5 on the federal payroll, most of whom work for the DOD.6 These numbers were potentially embarrassing to President Clinton. The President had promised tougher child support enforcement during his campaign, made it a central part of his welfare reform plan, and discussed it during his first

State of the Union address.7 To avoid embarrassment, the President had little choice but to respond swiftly.8

President Clinton answered by issuing Executive Order 12,953, "Actions Required of all Executive Agencies To Facilitate Payment of Child Support."9 The order is designed to make federal agencies "model employers" for child support enforcement.10 To become a model employer, the order identified immediate actions required of all federal agencies.11 The order also tasked the DOD, as well as the Office of Personnel Management (OPM) and the HHS (hereinafter "other federal agencies"), to review,12 study,13 and provide recommendations14 on issues related to child support enforcement, which placed these agencies in a lead role for "enhanc[ing] the Federal Government's commitment to ensuring parental support for all children."15

President Clinton included service of legal process16 as one of the issues for review by the DOD,17 and other federal agencies.18 While there

are several problems associated with child support enforcement, service of process to gain jurisdiction over the deadbeat parent is the first critical step in the entire process. Without proper service and notice to defendants, courts lack jurisdiction to issue support orders for child support.19 In the absence of a court order, many noncustodial parents refuse to pay financial support for their children.

Status as a member of the armed forces complicates the service of process issue and, in some cases, frustrates child support enforcement efforts. Within the United States, military policies on providing assistance vary depending on the type of federal jurisdiction,20 the location of an installation, and restrictions imposed by the Posse Comitatus Act.21 Furthermore, the individual military services have different policies on how much assistance they will give to parties seeking to serve process.22 Outside the United States, the internal laws of host nations23 or international treaties24 limit military assistance regarding service of process. These laws and policies increase costs and prolong the time necessary to resolve support obligations, thereby creating barriers to effective child support enforcement.

Prior to the President's executive order, Congress examined child support enforcement issues and proposed legislation attacking obstacles to support, including service of process.25 Congress included in its proposals language requiring federal agencies to designate agents for receipt of service of process on employees or military members26 stationed overseas.27

This approach benefits plaintiffs by providing a central location within each federal agency for service of process. It also reduces the costs and delays associated with service overseas and eliminates requirements for serving process under the internal laws of foreign nations and international treaties. To date, Congress has not passed legislation mandating that federal agencies appoint designated agents for receipt of service of process in actions to establish child support or paternity.

The Executive branch also considered including language within Executive Order 12,953 to direct federal agencies to designate agents for receipt of service of process that would have the same effect and bind employees to the same extent as actual service on them.28 The Office of Management and Budget (OMB), after consultation with the DOD about the propriety of designated agents,29 amended the draft of Executive Order 12,953 before the President signed it. The change removed the requirement for federal agencies to designate an agent for receipt of service of process.30 In its place, the OMB inserted language directing federal age

cies to appoint responsible officials to facilitate service of process.31

Although the President adopted the amended language in the executive order, he directed further study of the designated agent approach.32

The designated agent approach offers appealing benefits to child support enforcement agencies, their caseworkers, and custodial parents confronted with the hurdles of serving process on DOD employees and military members stationed overseas.33 However, for policy makers and lawyers, there is a genuine concern that the proposal will prejudice due process rights and unwittingly affect compliance with international law obligations.

It is time to get to the heart of the child support enforcement problem. The first step in correcting the problem is simplifying ways to effect service of process on deadbeat parents, especially those within the DOD. For the DOD to become the model employer envisioned by President Clinton, solutions must be devised to overcome the procedural hurdles associated with due process rights, judicial jurisdiction, and international law. The DOD cannot overcome these hurdles alone. The DOD and other federal agencies must work together to develop a unified approach to solve service of process issues. This article recommends such an approach. Specifically, this article examines current DOD policies related to service of process for child support enforcement, and makes recommendations to improve them. These recommendations are then embodied into a proposed unified approach for improving service of process on military members.34 The purpose of the unified approach is to enhance the DOD's commitment to child support enforcement by placing the armed forces in the forefront of other federal agencies by becoming a model employer. This goal is consistent with the past proactive practices of the armed forces to promote child support enforcement.35

Part One of this article defines the scope of the child support enforcement problem, both nationally and within the DOD. It also explains why the public perceives that service of process is the main obstacle in the child support enforcement process when a service member is ignoring a child support obligation. Part Two discusses Executive Order 12,953 in detail, focusing on the tasks that federal agencies must perform to achieve model employer status. Part Three overviews military service policies on child support and identifies specific policies related to service of process. It addresses military assistance with service of process both within and outside the United States, including a discussion of how the Posse Comitatus Act36 limits military assistance. Part Four surveys other laws and procedures related to service of process. It encompasses a review of jurisdictional prerequisites necessary for valid service of process, as well as foreign laws and international agreements that affect service overseas. A fundamental understanding of these rules is critical before proceeding to the analysis of the DOD's response to the executive order located in Part Five. Finally, Part Six proposes a unified approach to improving service of process for child support enforcement. It includes recommendations for federal agency actions and changes in law that would improve service of process in child support enforcement cases.

II. Part One: Scope of the Problem

A. Nationwide

During the 1970s, Congress found that nonpayment of child support contributed to childhood poverty and increased the number of families receiving government support.37 Based on these findings, Congress created a federal child support enforcement program.38 Congress designed the program to strengthen state and local efforts to obtain child support from noncustodial parents who failed to provide financial support.39 Congress later amended this program to apply to all families, not just those participating in federally funded programs.40 By extending this assistance, Congress intended to help those families not requiring federal or state aid to stay off the welfare rolls.41

By 1994, there were fifteen million support cases nationwide and approximately $34 billion in unpaid child support.42 Only about twenty percent of children and families relying on government assistance programs receive full or partial child support from their noncustodial parent.43

In those cases where there is a child support enforcement order, the nationwide default rate is nearly fifty percent.44 This is an incredible statistic when one considers that the default rate on used car loans is three percent.45

B. Within the DOD

In addition to the adverse press releases on the alleged number of deadbeat parents employed by the DOD, a formal study by the HHS found 42,000 military personnel46 in arrears on child support payments in 1989.47 Based on a sampling of military cases, the study estimated that states do not collect child support payments in more than half of the military cases sampled.48 Out of those cases, about twenty-five percent had court orders for support that military members had failed to honor.49 There were no court orders in the remaining seventy-five percent of cases.50 The three most common reasons cited in the report that contributed to the lack of a court order were: (1) failure...