Deadbeat dads, welfare moms, and Uncle Sam: how the Child Support Recovery Act punishes single-mother families.

• Author: Wimberly, Catherine

Jeff and Mary Ballek lived an unobtrusive, lower-middle-class life for twelve years in Anchorage, Alaska.(2) Mary cared for the couple's four children while Jeff supported the family financially through his work as a general building contractor.

Mary's troubles began in 1988, when the couple underwent an acrimonious divorce. The state court awarded Mary custody of the kids, and ordered Jeff to pay $500 a month in child support and keep up with the monthly mortgage. Mary refused to accept alimony payments from Jeff, who nonetheless immediately defied the court's child support order and informed his ex-wife that he "would never give [her] a red cent for child support."(3) Mary and the children lost the family home shortly thereafter and moved to Mary's home state of Missouri. Over the next nine years, they received only one voluntary child support payment from Jeff in the amount of $200.

The Alaska Child Support Enforcement Division tried to garnish Jeff's wages to enforce his child support obligation. Jeff responded by leaving the general contracting industry and performing a series of menial jobs that the state was unable to trace. Mary, unskilled and uneducated, worked two waitressing jobs to try to make ends meet while she attended college. Too proud to accept welfare subsidies, Mary could only afford homes she described as "rat infested, roach infested, [with] sealed windows, no air conditioning."(4)

Finally, in September of 1997, after Mary had earned her college degree and watched her oldest daughter reach adulthood, a federal district judge convicted Jeff for willfully failing to pay child support under the CSRA. Jeff was sentenced to six months in jail and ordered to pay $56,000 in past due child support as restitution to Mary and the children.

Mary and her children have yet to see this money. The district court's judgement survived a lengthy appeals process; the Ninth Circuit affirmed Jeff's conviction on March 11, 1999. But because Jeff was penniless at the time of his conviction, Mary will not receive any restitution while he serves his six-month prison sentence; Jeff cannot work to repay her while imprisoned. If Jeff still refuses to honor his debt upon release, Mary has no reliable means of ensuring that Jeff meets his payments. At least one court has held that she cannot bring a civil action under federal debt collection statutes to enforce the restitution order.(5)

Abraham Brand and Margrethe Stabell married in 1977 and had three children.(6) During the marriage, Abraham, a successful entrepreneur, supported his wife in luxury while she cared for their children. The family lived in a forty-three-room waterfront mansion on Long Island, complete with a private beach, a private tennis court, live-in nannies and housekeepers, a nine-passenger airplane, a Rolls Royce limousine, and a Ferrari.

The couple separated in 1989, and Margrethe and the children moved to Florida. The Florida Circuit Court tried unsuccessfully to incarcerate Abraham on state law grounds for failing to pay over $13,000 of child support during the couple's separation. In 1992, the same court entered an order dissolving the Brands' marriage, and awarded sole custody of their children to Margrethe. The court concluded that Abraham had assets worth $8,295,679 and awarded Margrethe two of Abraham's condominium units and one of his luxury cars. Abraham was ordered to pay a lump sum of $3,935,000 in "support of the wife and to provide security for the minor children in the style to which they have become accustomed"(7) as well as $2,500 per month for child support alone.

Over the next four years, Margrethe received only $10,000 from Abraham. When Margrethe complained to Abraham, he told her that he was in terrible financial trouble and could not afford to meet his payments. Unbeknownst to Margrethe, Abraham was charging thousands of dollars to his American Express card for travel expenses and hiding his assets in accounts bearing his new girlfriend's name to escape detection.

The enormous sum of money that Abraham owed Margrethe and their children attracted the attention of the FBI, who issued a warrant for Abraham's arrest for violation of the CSRA. State police discovered the warrant during a routine traffic violation in 1996, and he was subsequently convicted under the CSRA of willfully failing to pay the lump sum and monthly support obligations. The court sentenced him to time already served and ordered him to pay restitution to the tune of over $4 million.

Like Mary Ballek, Margrethe had to wait out a lengthy appeals process, and like Mary Ballek, the ultimate result was affirmation of her husband's conviction and the restitution order in its entirety. However, Margrethe is far more likely to receive the past due child support than Mary. Margrethe's ex-husband doesn't need to work to satisfy the restitution order. He simply has to untangle his substantial assets.

INTRODUCTION

The stories of Mary Ballek and Margrethe Stabell have much in common: Both women relied on their husbands for financial support while they cared for their children; neither had the education or skills at the time of divorce to sustain their previous lifestyle independently; both had husbands who refused to pay child support; and both appealed unsuccessfully to state judicial and administrative authorities to collect past due child support obligations. Most important for the purposes of this note is that the CSRA defines both women as `victims' of `deadbeat dads.' There is, however, one critical difference: For Margrethe, the court's order that Abraham untangle his assets and pay restitution will result in the maintenance of Margrethe's luxurious lifestyle--she was by no means impoverished by Abraham's failure to pay child support. In contrast, Mary is one of the few custodial parents vindicated under the CSRA after being impoverished by their ex-spouse's failure to pay child support. But for Mary, the prosecution of Jeff was at best a symbolic vindication of her suffering. Mary's four children will be well past the age of majority before Jeff is likely to pay back even a portion of the restitution order. This difference lays the foundation for the following query: Why is a federal statute designed to shrink the number of single-parent households on welfare, thereby enhancing the emotional and financial well-being of single-mother families, so ineffectual in reaching this goal?

This note examines the plight of single-mother households dependent on child support in light of the recent nationwide trend toward federal criminal prosecution of child support evaders. Part I examines the development of the law of parental child support, with a focus on the changing normative goals underlying the duty of parental support in different historical contexts. Part II details the origins of the CSRA, including a discussion of the sociological data that Congress relied upon to connect the incidence of nonpayment of child support with the number of single-parent households on welfare. It positions the enactment of the CSRA, and the Fathers Count Act (FCA), an analogous piece of proposed legislation, in the contemporaneous movement to reform the country's welfare system. Part III uses sociological data and input from different players in the criminal justice system to uncover the disconnect between the number and kinds of men and women who could be convicted under the CSRA and the narrow band of men who have been convicted under the CSRA.

Part IV discusses some of the analytical difficulties presented by the federal criminal enforcement of state-ordered child support obligations. It analyzes the Equal Protection interests of noncustodial fathers, and the privacy rights and practical needs of custodial mothers and their children. Part V then attempts to reconcile some of the paradoxes inherent in the CSRA and reflect them against the broader context of family values talk. In particular, it examines the conflicting goals of draconian punishment and the repayment of child support obligations. It also discusses the reasons for the disconnect between the law in theory and the law as applied, and why stricter enforcement of the CSRA is unlikely to effectuate Congress' goal of reducing the number of single-mother households on welfare. These findings lead to the normative conclusion that instead of assisting financially strapped single-mother households, the CSRA punishes men and women, and low-income women in particular, for making procreative choices outside the confines of the nuclear family.

1. HISTORY OF STATE AND FEDERAL INVOLVEMENT IN CHILD SUPPORT ENFORCEMENT

   1. The Duty to Pay Child Support

      Beginning in the nineteenth century, state courts acknowledged that parents have a legally enforceable duty to support their children.(8) This acknowledgement was limited, however. Courts enforced the obligation to pay prospective child support only to the extent that fathers were ensured their independence and financial integrity.(9) Neither the mother's independence and financial integrity nor the child's interest in maintaining the standard of living he or she had enjoyed during the parents' marriage entered into the court's calculus when awarding future child support payments. For example, in 1819, a New York judge awarded a custodial mother an extremely low allowance for child support because "some weight ought to be attached to the consideration, that the father may be greatly afflicted by the loss of the presence and guardianship of his son, and the mother will have the most persuasive motives to industry and economy, by the duty and blessing of such a charge."(10)

      Because nineteenth-century courts were keen on protecting the financial interests of noncustodial fathers and enjoyed great discretion in setting paternal support standards, judges often gave downward adjustments on the ground that noncustodial fathers did not have a legal duty to support children whose...