NONMARITAL FATHERS IN FAMILY COURT: JUDGES' AND LAWYERS' PERSPECTIVES.

• Author: Brito, Tonya L.

ABSTRACT

The Article presents findings revealing judges and government attorneys' perspectives regarding nonmarital fathers as parents. The findings are drawn from original empirical data generated in a rigorous and extensive five-year qualitative study investigating the experiences of low-income litigants in family court. Specifically, this Article examines the perspectives of the judges and family court commissions who preside over IV-D child support cases as well the government attorneys who bring actions to enforce child support orders. These legal actors place a primacy on fathers ' role as economic providers and characterize the fathers as disengaged dads because they do not reliably pay child support. When fathers counter in court that they are engaged dads who provide nurturing and caretaking to their children, judges and government attorneys admonish them stating that parental involvement is not relevant in support enforcement cases. Yet, when fathers attempt to affirmatively assert legal claims to gain access to and parenting time with their children, those same legal actors silence them and tell them that the court cannot hear their parenting claims and they must pursue them in a separate proceeding elsewhere.

TABLE OF CONTENTS I. NONMARITAL FAMILIES II. RESEARCH METHODOLOGY IV. PERSPECTIVES ON NONMARITAL FATHERS AS PARENTS 1. Nonmarital Fathers as Disengaged Dads 2. The Primacy of Economic Fatherhood 3. Nonmarital Fathers ' Parenting Claims Undervalued and Unsupported CONCLUSION INTRODUCTION

The child support system's exclusive focus on nonresident fathers' responsibility to provide financially for their children has the effect of diminishing and undermining nonmarital fathers' efforts to be engaged and nurturing fathers. I explore this phenomenon in public child support cases, commonly referred to as IV-D cases, where the state summons fathers, often poor Black nonmarital fathers, to court to answer for their failure to pay court-ordered child support. Fathers experience IV-D child support enforcement hearings as a contested space where they are held to gendered and racialized middle-class norms of economic fatherhood that are often impossible for them to meet. At the same time, both the legal rules and courts minimize or ignore fathers' attempts to raise a claim for access to their children.

The IV-D program, which is authorized under Title IV-D of the Social Security Act, provides child support services to families in the United States through a partnership between the federal government and state, local, and tribal governments. (1) State child support enforcement agencies are responsible for locating absent parents, establishing paternity in cases involving nonmarital births, establishing court orders for child support, and enforcing child support orders. (2) The actors involved in public child support cases include government child support attorneys, judges (or another judicial officer, such as family court commissioners), custodial parents, noncustodial parents, and, to a much lesser extent, defense attorneys. (3) The government attorneys in IV-D cases represent the interests of the State's child support enforcement agency, not the interests of either of the parents in the case. (4) The states' interests in IV-D cases are mixed and often in conflict. (5) The State enforces child support orders against poor fathers to deliver money to custodial mothers and to recoup for itself the costs of public welfare provided to the custodial mother. (6) In many IV-D cases, most or ail of the child support collected is payback to the State, not money provided to the custodial mother and her children. (7)

This Article examines the perspectives of the judges and family court commissions who preside over IV-D child support cases as well the government attorneys who bring actions to enforce child support orders. Specifically, it presents findings revealing legal actors' perspectives regarding nonmarital fathers as parents. Judges and lawyers characterize the fathers in these cases as disengaged dads due to their failure to reliably pay child support. They place a primacy on fathers' role as economic providers, reifying outdated social norms in the process. Legal actors inconsistently treat nonmarital fathers as nurturing, a position often confusing to fathers. When fathers defend child support actions brought on the ground that they are engaged dads who provide nurturing and caretaking to their children, legal actors silence them because parental involvement is not relevant in child support enforcement cases. And when fathers affirmatively assert legal claims to gain access to and parenting time with their children, those same legal actors again silence them and tell them that the child support court cannot hear those claims. Instead, fathers must initiate an entirely separate case in a different court to pursue their parenting claims. (8) And, yet, despite legal actors' insistence that the law requires them to treat support enforcement and parental involvement as separate and unrelated matters, they frequently conflate the two in court proceedings.

The Article's findings are drawn from original empirical data generated in a rigorous and extensive five-year qualitative study investigating the experiences of low-income litigants in family court. With the assistance of my research team, I gathered data across six counties in two midwestern states, focusing on IV-D child support cases where the State is pursuing past-due child support from low- and no-income noncustodial fathers. There is a broad consensus that the child support enforcement system is not working properly in these cases. (9) Child support enforcement cases involving poor families involve low collection rates for mothers and high debt accrual for fathers. (10) The majority of these fathers are "unable nonpayers," meaning they lack the financial resources to pay the support they owe. (11) Yet, the State aggressively pursues enforcement of support in these cases, which far too often affect families living in deep and persistent poverty, pro se fathers in court up against government lawyers, and unjust outcomes for poor fathers. (12) Child support debts entangle poor fathers in repeated court hearings (often relating to the same debt) that become increasingly punitive, sometimes culminating in a finding of civil contempt and incarceration. (13) There has been widespread criticism of the practice of jailing "deadbroke" fathers for unpaid support, with many referring to it as a modern day debtor's prison. (14)

1. NONMARITAL FAMILIES

   Family composition in the United States has undergone tremendous changes over the past fifty years, particularly the rate of nonmarital births. Today, 40% of infants are born to nonmarital couples, more than ten times the number in I960. (15) These figures vary according to race and ethnicity--70% for Black mothers and 52% for Hispanics. (16) Nonmarital births are increasingly likely to occur within cohabiting unions. (17) Research shows that, compared to marital fathers, nonmarital fathers are more vulnerable; they are younger (18) and less educated, may engage in more unhealthy behaviors, have high levels of poverty, (19) and have weaker attachments to the labor force. (20) Nonmarital fathers are also more likely to have complex families, meaning here they have multiple children with different mothers. (21) Finally, they are more likely to have adverse experiences, such as substance abuse problems and earlier incarceration. (22)

   Nonmarital families are also less stable than married couples. Regardless of how committed the unmarried couple may be, it is more likely that their relationship will end within a few years of the birth of their child. (23) Research shows that almost two-thirds of children born to nonmarital parents will not be residing with the father by age five. (24) These relationships end in part because the couple experiences difficulties due to insufficient money and additional childrearing responsibilities from a prior relationship. (25) While Black nonmarital couples are less likely than other racial and ethnic groups to maintain stable cohabiting relationships, (26) research demonstrates that after a breakup Black noncustodial fathers are more likely than other noncustodial fathers to maintain a relationship with their children. (27)

   2. RESEARCH METHODOLOGY

      A detailed and comprehensive description of the research methodology is included in my earlier scholarship produced from this study. (28) Borrowing largely from those earlier writings, I provide here a brief overview of the research plan. My study team collected data in six counties across two Midwestern states, which we refer to as State A and State B. (29) Data collection in ail six counties included exploratory fieldwork, ethnographic observations of child support enforcement hearings, and over 145 in-depth group and individual interviews with lawyers, litigants, and judges who are ail involved in child support proceedings. (30) We also interviewed several institutional actors from various organizations central to the child support process at both the state and federal levels. These individuals included representatives from Jobs Programs, courthouse librarians who provide assistance to unrepresented litigants, and directors of state child support agencies.

      In the ethnography we conducted, the cases typically involved a judicial officer, a child support attorney, and the parents. Judges presided over legal proceedings and rendered decisions in child support cases; however, in State A enforcement actions were initially heard by family court commissioners. As noted previously, government child support attorneys represent the interests of state child support enforcement agencies. The custodial parents owed support are the petitioners and the noncustodial parents owing support are the obligors (i.e., defendants) in these cases. In the...