Resolwng Chlld Support Issues Beyond the Scope of AR 608-99

• Author: by Major Mark J. Connor*
• Pages: 04

1. INTRODUCTION

   According to a Ford Foundation study cited m recent con5esaonal hearings, forty-tho percent of white babies barn in America w~ll live

   with a single parent b) the time they reach eight years old and ex-perience a major speii of poverty during that time? Eighty-six percent of black babies born in America will live with a single parent before they reach eight years old; these children will live in poverty most of that time.2 Meanwhile, only ten percent of the custodial parents recewing welfare assistance also receive financial support from the noncustodial parent.3 The problem of inadequate support of children by their noncustodial parents therefore has become a matter of national concern.

   In a typical military legal assistance practice. child support issues have their genesis in a rariety of circumstances Often. they must be addressed dunng the drafting of separation agreements They arise after a soldier admits or LS proven to be the father of an illegitimate child. Finally, they arise when a custodial parent seeks to establish or enforce a child support order against the noncustodial parent In these snuations. legal assistance attorneys can expect to represent soldiers. retirees. or civilian custodial parents *

   'Judge Ad~oeate Generavs Corps. U S Army Currenrl) assigned as lnifm~mr, the

   Admlrualratne and Cwil Law Dnmon The Judge Adioesre GeneWs School. Chariot tesvllle Vlrgmla, 1890 to present mrmerl? assigned as lhal Counsel, Zd Armored Division (Fornard). 1983-198E. and az Litigation Atforne). Department of the Arm) Envlronment%ILa% Diviiian, 1906-1989 B A , Teesrmmorer College 1878. J D Cnluer-~ltyof Mirroun Columbia 1982. and LL 31 The Judge Ad\acafe General's School 1990 klember of the \Ilalaun Stare Bar

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   MILITARY L.4W REVIEW [VOl 1 s

   Army attorneys confronted with a child support issue mvolving a soldier lust should Consult Army Regulation (.4R) 608-99. Family Suppon Child Custody, and Paternity.i AR 608-99 requires that soldiers provide 'family members"O with "adequate and cont~nuous wp-port."' In the absence of a court order or a written support agree-ment, AR 608-99 mandates "mimmum support requirements for support of a soldier's family memben. including legmmate children Failure to satisfy these obligations constitutes a violation of a lawful general regulation and requres commanders to take appropriate adverse admmistratwe. noqudmal. or judicial action against the soldier.@

   Many child Support ISSUBS, howeter. Cannot be resolved through application of AR 608-99 Outside the mihtary'i confines. a client's concerns regarding child support obligalions are addressed campetently only by attorneys with at least a basic understanding of I) the "lV-.4 and IV-D programs,"'0 2) state child support guidelmes. 3) the Uniform Reciprocal Enforcement of Support Act and Retised Uniform Reciprocal Enforcement of Support Act, and 4) available child support enforcement mechanisms

   $Arm> Reg 608 89 Famill Suppon Child Cuilad) and Farernr) (22 Mas 19Ri) [hereinafter AR 608-OBI

   '.4 ' fanilly member is defined IO include a soldiers I11 pre~entspouse. lz! former

   ipouse (if coun ordered) Id! natural and adapted minor children (4) illeplimare children of woman ioldierr and illegitimate children of male saldien if support ISordered by a court and (51 ani other pemn the soldier har m obligation to support underthe lai%rofthesoldiers msupponed pemnr domicile See AR608-08 Glosnan Fer+,"" IT._

   _.

   ... ..'Id para 15all)%Id para 2-4 These suppan requirement3 are summarized as fall or^

   I Single famil) unit Ilwng on post IcIvllian ~pousel the difference belieen BAQ at the with-dependents and the aithauf-dependents rate for the soldier', pa) gradeSingle family "mi living off-paif (el~ilimspauiei rhe full amount of B.%Q 8t

   the ~ i t h dependents rate for the soldiers p85 grade

   Mulflpie family umts (not rncludlng B spouse I" the .Armed Forces) each family

   memberisenfitled raaprorafashareof fherith dependenf BAQratpfarrhe mldiers pay sadeBoth PDUU?~~in the 4nned Force5

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   4 \d children of rhe marnage-no support obligation. regardless of anid3spanrler I" pay grad?

   All the children of rhe marriage I" the curtad) of one rpoure-the dlf ference befueen BAQ 'with and 8*Q

   ' ilIhoUt ' io1 the noncustodial parent 0 pay gradeCuifodi of childrenaf themamage .phfbetieentheriaparenri~neirher parent o ~ e i a support obligation to the othercCommanden can require soldien ta pa) more than there guidelines in excep

   5 llonal e m s .A commander cannor harever excuse wvment af lesser mount^ *Id para L 4e(8)'"42 CSC 55 651-660 (lY88168

   19911 CHILD SL'FFORT

   This articie focuses an these four subject areas. It should provide legal assistance attorneys with a basic understanding of how the statiites, regulations, and guidelines in these areas can be used to help clients collect and provide support an behalf of a minor child. Conversely. it also should provide legal assistance attorneys with insight into how noncustodiai clients are affected by federal and state laws and regulations

   11. UNDERSTANDING THE IV-A AND IV-D PROGRAMS

   1. THE IV-A PROGRAM

      Resolution of child Support issues historically has been a state-not federal-concern." Congress did not introduce the federal government into the child support arena until 1936 when It passed Title IV-A of the Social Security Act?2 which created the Aid to Families with Dependant Children (AFDC) program. AFDC originally \\-as intended to provide support to famihes with children when the primary wage earner was dead. Over Time, howe>er, the program has been used most frequently when the father deserted the famdy or uzas otherwise hvmg separate from the family and not proriding support. By the rnid~lY80's nearly nine out of ten children receiving AFDC assistance had a living parent who was absent from the

      Under the AFDC program. each state determines Its own eligibilit? cntena, subject to certain federally imposed requirements!? Each state also establishes its own monthly grant scale These grants are typsall? at a minimal subsmence ie\ell6 Generosity 1s discouraged bg a per capita cap on federal contributions to rhe state's program l6

      in return for receiring AFDC assistance. grant recipients are re- "In 1858 the Supreme Court held that federal court5 haie no poxer f~ determine ~pouial iuppon Barber \ Barber B2 C S 562 (1859) 85 inference this holding extended IO other family iuppon requiremenl~l*J2 I SC 89 601-615 (1888)

      "US Dept of Health and Human Senlees Office of Child Suppan Enforcement "See 45 C FR 5 233 20 LlBSR)

      "In 1886 far example, California wm arardmg an lFDC eligible parent and child ulth no other income a grant of 3486 per manrh The federal poieny lei,el for a two perran houiehold m 1886 hauerer RW $603 per month Ser hl Greenberg, Prorec ling Rights Lo Public Benefits for Parents and Children (1987)

      Hinton and Fundamentals ai Child Support Enforcement l(2d ed 1886)

      IbBr 42 C S C 9 603 (1886)

      MZILIT.4RY LAW REVIEW [Vol 132

      quired to assign the state then rights to collect support from the non-custodial parent li Grant recipients also must assign any arrearage5 that hate accrued under an existing support orderl6Thereafter any support paid by the noncustodial parent must be paid directl) to thp state as lona as the custodial Darent remains enralied in the AFDC programLo

      The first fiftk dollars collected by a state from a noncustodial parent IS paid directly to the AFDC recipient together with the reg" lar AFDC payment.20This "pass through' does not affect the custodial parents entitlement to further AFDC paymeats'- Amounts re^

      cened from an obligor bi the state m excess of fifty dollars are distributed according to the fallowing priority scheme 1) the stare and federal garernment are reimbursed for their portion of AFDC paid that month 2 2 2) the family receii-es any remammg mone) up to the amount of the current court ordered month11 support obligation.2A 3) the state 1s reimburspd for any arrearages owed it for prior AFDC payment,z4 4) the custodial parent 1s entitled to the remainder to satisfy any arrearages awed by the support When AFDC payments stop. the assignment of support also terminates except with respect to the amount of the accrued unpaid support obligation that has been paid out in AFDC 26

      Children of soldiers can qualify far AFDC. Bmce 1982, howeLer AFDC assistance has not been available to children deprived OS sup^

      port whose parent's continued absence from home IS 'occasioned solely b? reason of the performance of actiie dut? in the uniformed services of the United States ' 9 - As a resuit cuitodial parents stlll married to soldierr have the burden of proving that thq would be separated from the soldier even d military service was nor a Sactor prior to receiving AFDC benefits for their children

      '..Tee 45 C FR § 232 I1 (18801

      "Id When arreamger are subrfanfial and B realistic chance ai collecting t the obligor exiili ariarneyi should con31defer making ail LFDC application until

      obo 45 C FR §$ 302

      19911 CHILD SUPPORT

   2. THE IV-D PROGRAM

      By fiscal year 1973, the federal government wai spending S'i 6

      As congressional dissatisfaction with the billion yearly on AFDCcost of the IV~A program grew. so did calls for reform.

      Should our welfare sysrem be made to support the children whose father cavalierly abandons them or chooses not to marry the mother in the first place? Is it fair to ask the American taxpayer who works hard to suppon his own family and to carry his own burden to carry the burden of the deserting father as well9 Perhaps we cannot stop the father from abandoning his children, but we can certainly improve the system by obtammg child support from him and thereby place the burden of carmg far his children on his own shoulders where II belongs We can. and u e must. take the fmancial reuard out of

      Ultimately, this...