The American invention of child support: dependency and punishment in early American child support law.

• Author: Hansen, Drew D.

In modern American politics, "child support" is almost always mentioned in the same sentence as "welfare reform." When the Clinton Administration dramatically overhauled the nation's welfare system during the summer of 1996,(1) politicians from both parties praised the new law's child support provisions. President Clinton hailed the possibility that child support enforcement might shrink welfare rolls. "If every parent paid the child support they should," he said at the news conference following the signing of the bill, "we could move 800,000 women and children off welfare immediately."(2) At the parallel Republican press conference, Representative Jennifer Dunn pointed out that nonpayment of child support was a major cause of welfare dependency. Reminding her audience that over thirty billion dollars in court-ordered child support payments goes uncollected, she asked: "What happens when that money is not paid? The children and the mother go on welfare. And so the taxpayer becomes in effect the parent of those children."(3)

The villain in the child support reform story is the "deadbeat dad" who does not pay child support. In a speech in Denver one week before he signed the welfare bill, President Clinton assured his audience that nonpayment of child support was a serious crime, comparing it to robbing a bank or a 7-Eleven store.(4) In a final cascade of warnings to "deadbeat dads," the President said: "[I]f you owe child support, you better pay it. If you deliberately refuse to pay it, you can find your face posted in the Post Office. We'll track you down with computers.... We'll track you down with law enforcement. We'll find you through the Internet."(5)

These remarks by President Clinton and Representative Dunn illustrate two aspects of the modern American political discourse about child support. First, child support enforcement is an anti-dependency measure.(6) Politicians want to enforce child support orders because they are worried that the country is spending too much money on welfare and because they think that increasing child support collections will lower poverty rates among single mothers. Second, nonpayment of child support is a serious crime that should be punished by the criminal law. Americans today conceptualize child support in terms of preventing dependency and in terms of punishing those who "cause" dependency.

These preoccupations have important practical consequences for the functioning of the American child support system. Consistent with a focus on preventing dependency, child support awards in America are often just high enough to enable a single mother to avoid welfare, but not high enough to ensure that her children obtain an adequate standard of living.(7) However, one need not think about child support solely in terms of preventing dependency. One could imagine, for example, a child support system with a stated goal of providing an adequate standard of living for children of any economic status. The practical consequences of this shift in mindset might be the institution of higher child support awards and the expansion of governmental supports for all parents with young children--perhaps something along the lines of the $500 per child tax credit enacted in 1997.(8)

Similarly, a focus on punishing "deadbeat dads" need not drive the American understanding of how to make it easier for single mothers to raise their children. Certainly, fathers should be made to contribute to their children's upbringing; but some fathers do not have the financial ability to pay more than trivial amounts of child support.(9) A narrow focus on punishing nonsupporting fathers without any measures to make it easier for poor fathers to make regular child support payments might be an appealing symbolic way to enforce personal responsibility, but it does little to promote the welfare of American children.

This dependency-punishment framework is not the only way that we could think about child support. We could, for instance, take national responsibility for child support in the way that we take national responsibility for the care of the elderly through programs such as Social Security and Medicare.(10) But while the United States government assists families with childrearing costs in a variety of ways--through the tax exemption for dependents,(11) for example, and through the Earned Income Tax Credit(12)--America lacks a serious national commitment to ensuring that all children receive adequate economic support.(13)

Why do Americans think that child support should be governed by concerns about dependency and punishment? In this Note, I argue that our current dependency-punishment framework for understanding child support is rooted in the invention of a legally enforceable child support obligation by American courts in the nineteenth century.(14) Early American child support law developed in two phases. In the first phase, nineteenth-century American judges invented a civil child support obligation because of their concerns about dependency among single mothers and their children. The judges who created a child support obligation were motivated both by a desire to help needy single mothers and by a belief in conserving the poor-relief system's resources by shifting the responsibility for aiding these families onto nonsupporting fathers. In the second phase, many states in the late nineteenth century enacted criminal nonsupport statutes to force fathers to provide for their wives and children. The twin discourses of dependency and punishment drove both the civil and criminal regimes, and they eventually came to dominate modern understandings of child support. In fact, one of the most significant differences between the nineteenth-century child support system and the modern one is not the general framework of dependency and punishment, but the modern addition of a racially inflected blaming of African-American fathers and mothers for welfare dependency.(15)

In Part I of the Note, I situate the American invention of child support in the socio-legal context of the emergence of economically vulnerable single-mother households and the growing inability of the traditional poor-relief system to cope with these families' needs.

In Part II, I analyze the American invention of child support. I trace the development of this body of law from its antecedents in the "natural duty" of child support at English common law to the self-conscious legal creativity of the American courts that invented a child support obligation in response to dependency among female-headed households. I end Part II with a consideration of the child support issues faced by black families, noting how both limitations on marriage among blacks and white Americans' racist views of black children contributed to the emergence of distinct child support issues in the nineteenth-century black community.

In Part III, I outline the beginnings of criminal sanctions for nonpayment of child support. I trace the origins of these laws to the English Poor Law of 1601 and its American counterparts. The failures of the poor laws in America, largely caused by the social changes outlined in Part I, helped motivate reformers to enact criminal nonsupport statutes in the 1870s and 1880s. These statutes completed the move toward the current paradigm of thinking about child support by adding a punitive edge to concerns about causing dependency. In the Conclusion, I critique some of the modern consequences of the dependency-punishment paradigm of child support. I specifically consider how the dependency-punishment paradigm has remained constant from the nineteenth century to the twentieth century, while noting how the twentieth-century application of this paradigm focuses particularly on blaming African-American mothers and fathers for welfare dependency. I end the Note by presenting some thoughts on how the nineteenth-century child support obligation might have played some role in diminishing pressure for family allowances in early twentieth-century America.

1. THE SOCIAL CONTEXT OF EARLY AMERICAN CHILD SUPPORT LAW

   Several social and legal transformations during the nineteenth century led to an increase in single motherhood. In this Part, I outline how changes in the legal regime surrounding divorce and child custody interacted with social changes in the meaning of childhood to cause a rise in the number of divorced mothers who were expected to nurture and care for their children. During the same period, family desertion emerged as a major social problem, as wage-earning men who could not access the courts to obtain divorces simply left their wives. The colonial poor-relief system was breaking down at the same time, making it difficult for towns to cope with the demands for relief posed by this new class of single mothers and their children.

   1. Transformations in Divorce and Child Custody in Nineteenth-Century America

      During the nineteenth century, American society witnessed a sharp rise in the number of single mothers with young children. The rise in the divorce rate, the emergence of maternal preference in child custody, and the new value placed on childrearing combined to make it difficult for single mothers to support their children without relying on local poor-relief.

      1. Transformations in Divorce Law

         Divorce was relatively rare in colonial America.(16) The divorce rate increased steadily during the nineteenth century,(17) however, in response to the liberalization of divorce laws in most states,(18) the transfer of jurisdiction over divorce from the legislatures to the courts,(19) and social changes such as industrialization and rising expectations of marriage that led more Americans to take advantage of those laws.(20) The pace of the rise in divorce varied by region, but by 1850 there was a clearly observable national trend toward marital breakdown.(21)

         Women often successfully sued for divorce in the nineteenth century by charging their husbands with...