Making parents pay: interstate child support enforcement after United States v. Lopez.

• Author: Burdette, Kathleen A.

When Jeffrey Nichols, a wealthy consultant, decided to divorce his wife of sixteen years in order to marry a younger woman, he was ordered to pay $9000 a month in support for his three children.(1) Believing that the children's grandfather would support them, Nichols ignored his child support obligations and, instead, lived in luxury with his second wife for over five years.(2) After cleaning out his accounts in New York, where the children and his ex-wife still reside, he moved to Toronto.(3) In an attempt to evade law enforcement officials who make it their business to search for "deadbeat dads," Nichols then moved to Boca Raton, Florida and later to Vermont.(4) He also attempted to conceal some of his assets by placing them in his second wife's name and in offshore accounts that could not be traced.(5) The law finally caught up with Nichols when his second wife, in the process of filing for divorce, signed an affidavit stating that Nichols had been avoiding child support payments for five years.(6)

Nichols, who spent four months in a New York jail,(7) owes more than half a million dollars in overdue child support payments that he contends he is unable to pay.(8) While Nichols was "living to the hilt," his ex-wife says that there were "days she didn't know if she'd make it, with 3 kids."(9) Federal prosecutors, acting under the Child Support Recovery Act of 1992,(10) eventually indicted Nichols.(11) State prosecutors asked for, and received, a contempt ruling that was to keep Nichols, who is believed to be the nation's largest child support debtor, in jail until he paid at least $68,000 of the support money he owes.(12) Nichols was released after four months, however, because he convinced the judge that he could not liquidate his assets while he was in jail.(13) Unfortunately, commented Suzanne Colt, a lawyer for New York City who finds deadbeat parents, results like those in the Nichols case, where the delinquent parent is indicted and imprisoned, are still the exception to the rule.(14)

A Michigan judge sentenced another deadbeat dad to serve two to three years in prison for failing to pay a child support obligation that has accumulated to $140,000 over the last sixteen years.(15) Just as Jeffrey Nichols fled the state where his children lived in order to avoid his support obligation, Patrick Law left Michigan less than a month after a support order was entered against him.(16) Law may also face similar charges in Arizona, "where he abandoned a second wife two years ago."(17)

The length of time that Nichols, Law, and many others like them have avoided paying child support illustrates the ease with which obligations may be avoided by leaving the state that issued the child support order. Because states are primarily responsible for the enforcement of support orders,(18) and states' coercive powers are limited to those within their jurisdictions,(19) additional time-consuming procedures are required whenever a child support order is sought to be enforced against a nonresident of the issuing state.(20) There are also great disparities in the rates of collection and in the success of locating missing obligors among different states; in cases where the custodial parent was receiving Aid to Families with Dependent Children ("AFDC"),(21) the ten most successful states collected support from only twenty-five percent of nonresident parents, while the least successful states collected support from only 4.1% of nonresident parents.(22) Moreover, when custodial parents seek to enforce child support orders in other states, as when they seek to enforce child custody orders, there is a tendency for states with different substantive child support or custody laws to act parochially and modify the orders in accordance with their own laws, thus weakening the finality and certainty of support orders.(23)

As the number of children who live in nontraditional households(24) increases,(25) so does the number of children who live in poverty.(26) In America today, a significant percentage of the poor are children,(27) especially children who live in single-mother-headed households.(28) What is most disturbing about these statistics is that many of these children have been awarded child support by courts as a result of paternity or divorce proceedings.(29) Because of the unwillingness of many noncustodial parents to pay support obligations, particularly when they are denied visitation rights,(30) and because of the difficulties involved in collecting child support judgments when the noncustodial parents and the children live in different states, many of these judgments remain uncollected.(31)

Child support awards are made by state courts, which have jurisdiction over family law issues.(32) Although there have been several attempts in the past century to enact uniform state laws, which would solve the problems that arise in attempting to enforce one state's judgment in another state's courts, none of these laws has been very successful.(33) Beginning in the 1970s, the federal government began to take a more active role in the collection of child support debt. That action was a response to the myriad difficulties experienced by custodial parents as a result of the differences among state laws and from the low priority attached by law enforcement officials to interstate support obligations.(34) In 1975, Title IV-D was added to the Social Security Act,(35) which required states, as a condition of receiving federal AFDC funding, to provide free child support enforcement services to both AFDC recipients and other custodial parents.(36)

Several other federal laws since that time have provided additional collection mechanisms for parents.(37) One of the more recent federal acts is the Child Support Recovery Act of 1992 (the "CSRA"),(38) which provides criminal penalties for failure to pay overdue support obligations,(39) provisions allowing the federal courts to make probation in federal criminal cases dependent on compliance with child support obligations,(40) and provisions for a program of state grants to aid in developing and enforcing criminal laws to punish those who refuse to pay child support when the parents and the children live in different states.(41)

The passage of the CSRA was motivated by the federal government's interest in reducing the amount of money it spent on federal benefits, such as AFDC, when the children could receive money from other sources.(42) The House Committee on the Judiciary, which recommended passing the bill, noted that "in 1988, 6.4 million children from homes in which the father was absent were enrolled in ... [AFDC], and that number has steadily increased since that time."(43) Although the House Report does not specifically address what percentage of those children receiving AFDC are also the beneficiaries of enforceable child support judgments, it assumes that improved collection methods for child support will reduce the number of children who will be eligible to receive AFDC benefits.(44) Statistics released by the General Accounting Office support this conclusion because only one-fifth of families who received welfare benefits also received child support in 1992.(45) Health and Human Services Department ("HHS") officials estimated that more effective child support collection devices could easily reduce the total expenditure on AFDC entitlements by up to twenty-five percent on an annual budget of approximately 22 billion dollars.(46)

Recently, congressional involvement in the interstate child support arena has come under constitutional attack from fathers who challenge the legality of the criminal provisions of the CSRA.(47) This Comment analyzes the constitutionality of the CSRA's criminal provisions and explores the consequences of that analysis. If the challenged provisions are found to be unconstitutional, the federal government will be required to cease its involvement in the criminal aspects of child support enforcement, leaving the states to their own devices. Part I discusses the Commerce Clause theory articulated by United States v. Lopez(48) and the federal district courts' dissention over the application of this theory to the criminal provisions of the CSRA. Part II provides a picture of the states' performances in child support collection in the past and describes the beneficial effects produced by other federal laws in the area of child support enforcement. Part III addresses the various constitutional issues raised by federal involvement in the collection of child support debt and the special problems raised by the invocation of federal criminal penalties to deter and punish child support debtors. This Comment concludes that the criminal provisions of the CSRA should be found to be constitutional, both as a matter of law and as a matter of social policy.

1. The Constitutional Challenge

   In United States v. Schroeder,(49) the federal district court in Arizona held that a criminal provision of the CSRA was unconstitutional because Congress did not have the authority under the Commerce Clause to implement it.(50) The same court expanded its reasoning in United States v. Mussari,(51) which also found the provision to be unconstitutional.(52) Attorneys for Jeffrey Nichols hope to invoke these rulings in their favor because FBI agents arrested Nichols under the same provision.(53) The political response to the Arizona decisions from President Clinton, who disagreed with the rulings, was quick. Clinton released a statement emphasizing that federal action is necessary because "[t]he states cannot bring these criminals to justice - especially the `hard core' group of parents who flagrantly move from state to state to evade their obligations."(54) He added that "[p]arental responsibility does not end at the state line. The taxpayers of America should be able to expect that the burden of caring for these children will be placed on the shoulders of the parents - where it rightfully...