Do child support enforcement agencies have a stake in separating children from their fathers?

It is true that if all children lived with both of their biological parents in the same household, every civil servant who works in a child support enforcement agency would be out of a job, and the workloads of attorneys, magistrates, and judges would be considerably reduced. It is also true that professional associations like the National Child Support Enforcement Association (NCSEA) provide an important venue for education, training, and collaboration among practitioners in child support policy from both the administrative and judicial branches of government. But neither of these observations is sufficient to establish Professor Baskerville's claim that family courts and executive agencies collude in the removal of children from their parents.

Why is there such a close relationship between family law practitioners and administrative agency professionals? The answer is almost embarrassingly simple: they need each other to ensure compliance with federal and state statute and consistency with case law. Legislation, administration, and adjudication are inextricably linked in family policies like child support. This is just as apparent in state-level professional associations as it is at the national level. The child support guidelines project introduced me to the Minnesota Family Support and Recovery Council (MFSRC), “a collaboration of individuals and organizations established to study, develop and recommend common practices and policies for the efficient administration and enforcement of public family support programs” (www.mfsrc.org). Its membership is a testimony not to an anti-family conspiracy among judicial and administrative professionals at the state and local level, but rather to the vast array of participants and the complex connections between legislation, administration, and adjudication in child support policy. MFSRC's membership includes:

Its annual conference also reflects the interdependence of legislative, judicial, and administrative functions, offering legislative updates, overviews of recent developments in case law, and training sessions in program administration. (So far as I know, they have never offered a session on why it is desirable to separate children from their parents or how that is accomplished.) The observation that professionals working in different branches of government collaborate to promote coherent policy, effective administration, and equitable and informed adjudication does not constitute evidence of a conspiracy to force families apart for the sake of continued employment or higher salaries.

The fact is that families are already living apart by the time they reach the child support system. In some cases this is due to marital separation or divorce. But in a surprising number of cases there is no marriage to dissolve. In the case data analysis I supervised as part of Minnesota's guidelines review, MDHS, with advice from the Child Support Guidelines Review Advisory Task Force, collected a representative statewide sample of child support orders from 221 cases disposed in 1997 (the most recent year for which completed orders could be obtained). Since there is no statewide sampling frame for child support orders (they are typically embedded in divorce decrees and paternity adjudications), we employed a stratified systematic sampling procedure, sampling from dissolutions with children and paternity adjudications in the counties selected for analysis. Of the entire population of dissolutions and paternity adjudications from which we sampled, less than half (47%) were dissolutions (Beld 2001a, 6). In the suburban and rural counties from which we sampled, the ratio of dissolutions to paternity cases was approximately 50/50; but in the two largest counties, 57% of the orders for support were embedded in orders for paternity rather than orders for dissolution (5).

This does not mean that there was no family life to disrupt in support cases that arose from paternity adjudications rather than dissolutions. Professor Baskerville is absolutely right to point out that the phrase “unmarried father” is far from synonymous with “absent father.” Probably the best evidence concerning the role of unmarried fathers in the lives of their biological children is available from the Fragile Families and Child Wellbeing study, a five-year panel study of 3,600 unmarried families sponsored by Princeton University's Center for Research on Child Wellbeing and Columbia University's Social Indicators Survey Center (http://crcw.princeton.edu/fragilefamilies.about.html). One of the study's most significant early findings is that unmarried fathers are considerably more involved with their children than the casual observer of non-marital birthrates might expect: “Half of all mothers were living with the father of their child at the time the child was born; another 33 percent were romantically involved, though not cohabiting” (Garfinkel and McLanahan 2002, 94). Furthermore, the vast majority of these unmarried fathers (83% according to the mothers, and 91% according to the fathers) contributed financial, practical, and emotional support during their partners’ pregnancies (Garfinkel and McLanahan, 2002), and more than half affirmed the importance of marriage and expressed an expectation that they would marry in the future (“Expectations about Marriage among Unmarried Parents” 2002, 14). These findings are consistent with the more limited studies Professor Baskerville cites.

But Professor Baskerville provides no evidence to link these findings with his conclusion that child support agencies or family courts interfere with the continued involvement of unmarried fathers with their children. In fact, a closer look at the literature on father involvement in fragile families suggests that such involvement over time appears to have more to do with the strength of the relationship between the parents than with the relationship between parents and the child support/family law system. Although some cohabiting relationships develop into marriage and others continue as cohabitations, cohabiting unions are generally less durable than marital unions. Data from the National Survey of Families and Households and the National Survey of Family Growth suggest that 54% of cohabiting relationships end within five years (Bumpass and Lu 2000, 5–6). These quantitative data are consistent with qualitative data from the Fragile Families study. Follow-up surveys and interviews with a subset of the participating parents one year after the birth of their child showed rapid deterioration in many of the relationships: “The proportion of the sample without any romantic relationship rose from 15 to 40 percent, and the proportion not cohabiting but romantically involved shrank from 35 percent to 7 percent” (“Expectations” 2002, 13). And although this still left half the sample of parents sharing a household, only 7% of the sample had married, despite the high percentage of those who had expected to marry (13). Given the higher likelihood that unmarried cohabiting parents will separate, and given the decline over time in the strength of relationships between unmarried parents who do not live together, it is almost certain that by the time the Fragile Families study is completed, a substantial proportion of the sample of unmarried families will have entered the child support system for the first time. It is also likely that many families in the sample were already in the system, since it is not unusual for unmarried parents (or, for that matter, for married parents) to have financial obligations for children from prior relationships living in other households (“Expectations” 2002, 16; Pate 2002).²

The point is this: the fact that unmarried fathers are more involved with their newborn children than the conventional wisdom would suggest, does not mean that “the governmental institutions that regulate the relationships between parents and their children” are responsible for either the eventual breakup of many cohabiting unions or the barriers to family formation that non-cohabiting unmarried parents face, any more than they are responsible for the marital dissolutions that also make families clients of child support agencies.

Though not responsible for the family circumstances that lead to (or in some cases, continue to maintain) separation between parents and children, family law and child support professionals are keenly aware of the complicated realities and variations in family life described above. Over the course of Minnesota's guidelines review project, these professionals’ first-hand knowledge of their clients’ lives had a major impact on the recommendations they made for improving the state's child support guidelines. In fact, I was surprised that Professor Baskerville did not connect his observations about father involvement with his critique of state child support guidelines. Among scholars and practitioners alike, there is a lively debate about the degree to which child support obligations prevent separated fathers from being meaningfully involved with the children for whom they are not the primary caregivers, whatever the family circumstances that preceded their entry into the child support system. Some research findings suggest that unrealistically high child support orders, in combination with other child support enforcement policies, have a negative effect on contact between noncustodial parents and their children (Sorensen and Turner 1996). Other findings suggest that the causal relationship runs in the other direction: the more involved a noncustodial parent is with his or her children, the more likely he or she is to pay support (Morgan 2000). Despite the ambiguity of the literature, there is growing consensus that policy makers and researchers need to pay attention to the complex relationship between parent involvement and child support obligations, and that child support guidelines should not create barriers to meaningful relationships between noncustodial parents and their children (Reichert 2000).

Although Professor Baskerville did not raise this issue, the family law and child support professionals with whom I worked did. Both their attentiveness to this potential problem with child support guidelines, and their varied recom-mendations for resolving it, were inspired by their transactions with parents and their concern for the emotional well-being of children as well as their economic well-being (Beld 2001c, 4–5). Moreover, this is only one example of the ways in which both the guidelines review agenda and the recommendations for improvement reflect the impact of complicated family lives on public policy and administration. The next section provides a closer examination of state child support guidelines, particularly in relation to the characteristics of separated families.

Are child support guidelines as high as possible?

There are two components of child support guidelines that must be considered in answering this question. One component is the economic research concerning parental expenditures on children that informs state child support guidelines. The other is the adaptation of that economic research to the circumstances of separated families. An analysis of both components of the child support guidelines indicates three things: (1) the guidelines are not “as high as possible,” but (2) they can be improved, and (3) it is the child support community which is leading the way in attempting to do just that.

Professor Baskerville cites the charges of consultant R. Mark Rogers that child support guidelines impose “excessive burdens” on parents who must pay support, as a result of the “flawed economic foundation” of the child support guidelines model upon which most states’ guidelines are based. Professor Baskerville rightly attributes the original model and its influence on state child support guidelines to Dr. Robert Williams, president of Policy Studies Inc. (PSI), a Denver-based consulting firm that is, without question, a national leader in state child support policy development and enforcement. PSI has provided research and technical assistance to all but one of the 50 states, and is currently providing child support enforcement services in 16 states (www.policy-studies.com).

However, Professor Baskerville is quite wrong in his assessment of the economic foundations of Dr. Williams' contribution to state child support guidelines. The empirical question at the heart of state child support guidelines is, “What do parents spend on their children?” But the vast majority of household expenditures—upwards of 90%—are expended on behalf of the whole family, rather than on behalf of individual family members (Barnow 1994, 19). Consequently, the fundamental theoretical problem in estimating parental expenditures on children is how to separate out the children's share of these household-level expenditures. Most economic models estimating parental expenditures on children rely on one of two approaches: a marginal expenditure estimation method, which infers spending on children from comparisons between couples with children and “equally well off” couples without children, and a per capita expenditure estimation method, which divides total observed household expenditures equally among the individual members of the family (Barnow 1994, 19). Neither the original guidelines model developed under Dr. Williams’ leadership of the DHHS Child Support Guidelines Project (William 1987, II-19), nor the subsequent state guidelines developed with the assistance of PSI, has relied on methodologies that yield high estimates of parental spending on children.

Estimates based on marginal expenditure models can vary a great deal, depending on the particular measure of economic well-being that a given model uses to estimate how much more a couple would have to spend to maintain its standard of living once they have children (Betson 1990). The marginal expenditure estimation method advocated by PSI produces estimates of parental spending on children that are consistently lower than both per capita expenditure estimates (such as those produced annually by the Center for Nutrition Policy and Promotion in the U.S. Department of Agriculture; Lino 2001), and estimates yielded by alternative marginal expenditure models (Venohr, Williams, and Price 1999, 11). The difference is especially significant for estimates of parental spending on two or three children. PSI's estimates suggest that, in an average household, expenditures on two children account for 35% of total household spending; the most reliable alternative estimates attribute 41, 42, or 49% of household expenditures to the children. In a three-child household, PSI's estimate is 39%; the alternative estimation methods yield 48, 51, or 59% (Venohr, Williams, and Price, 1999 8–10), In its evaluation of the merits of alternative approaches to estimating parental expenditures on children, the U.S. Department of Health and Human Services concluded that, in comparison to the available alternatives, the methodology advocated by PSI is likely to underestimate what parents spend (Lewin/ICF 1990), a fact that PSI acknowledges in its explanation of its preferred methodology (see, for example, Venohr, Williams, and Price 1999, 11). In short, Professor Baskerville's claim that PSI has helped craft child support guidelines that are “as high is possible” is, quite simply, factually inaccurate.

But this is not the only reason that child support guidelines are not “as high as possible.” The second reason has to do with how the economic research is adjusted for purposes of calculating a child support order. No state bases its guidelines solely on estimates of parental spending on children, because these estimates are derived from data on expenditures by married-couple families in the Consumer Expenditure Surveys (Lino 2001; Betson 1990). The estimates are therefore adjusted to reflect the life circumstances of separated families. In Minnesota's 1998 guidelines review, the economic basis of the guidelines was only one of 24 different issues addressed by the agency project team and its advisory task force in preparing its legislative recommendations (Beld 2001c). Here is just a sampling of those other guidelines issues, all of them raised by the characteristics and experiences of separated families:

• [bull ] As discussed above, how should the guidelines account for the expenses a non-custodial parent incurs during the time the children spend in his or her care, especially in the absence of any systematic data on non-custodial parental spending (Lino 200l)?
• [bull ] How should the guidelines account for prior child support obligations? Should these other obligations be considered only if the parent is actually complying with the order?
• [bull ] How should the guidelines be adjusted to ensure that low-income parents ordered to pay support still have enough income to meet their own basic needs?
• [bull ] What if one of the parents prior to separation was staying home to care for the children? Should that parent have the income he/she could have been earning attributed to him/her in calculating his/her expected economic contribution to the children after separation?
• [bull ] How should the guidelines be adjusted if the children spend roughly equal time with each parent?
• [bull ] What if either parent has other legally-dependent children from a different relationship living with him or her? Should the economic needs of those other children affect the amount of support ordered?
• [bull ] What if either parent is unemployed or underemployed? How should the circumstances of that unemployment or underemployment affect the order for support?
• [bull ] Should the guidelines reduce the expected contribution of poor non-custodial parents to child care and medical expenses, since they typically do not qualify for child care or medical subsidies that they would otherwise receive if they had custody of the children?
• [bull ] What about wealthy parents? Should there be a limit on the amount of support they are ordered to pay, to ensure that all the support dollars are spent for the benefit of the child rather than the other parent?

Many of the provisions of Minnesota's current guidelines that address these family circumstances are designed to reduce the support that would otherwise be ordered (for example, the deduction of prior orders being paid from a parent's income, and the incorporation of a self-support reserve (Minn. Stat. 518.551, Subd. 5(b))). The substantial revisions to those guidelines proposed by MDHS retained most of these provisions and added new ones which would further lower orders in relation to the economic literature on what parents spend on children. Among these features were:

• [bull ] A systematic downward adjustment of the estimates of married-couple spending on children to accommodate the parenting-time expenses of non-custodial parents;
• [bull ] Enhanced provisions to ensure that parents have enough income to meet their own basic needs after paying child support;
• [bull ] An income deduction for the basic needs of other legally-dependent children living with a parent;
• [bull ] An alternative method of calculating support obligations for child care and medical expenses for low-income parents, paralleling the co-payment schedule of state-subsidized child care and medical assistance.

Provisions like these are explicitly intended to ensure that child support orders are not “too high” in relation to the characteristics of the family for whom support is being ordered.

It would be inaccurate to say that the total effect of the MDHS proposal to revise Minnesota's guidelines would be to lower support orders for all families in relation to Minnesota's current guidelines. Outcome projections with a variety of data sets suggested that orders for some kinds of families under the new guidelines would be higher than they would be if the current guidelines were applied. Increased orders would be especially likely for families with two or more children or for non-poor families with high child care or medical costs (Beld 2001d). But even this does not mean that these new orders would be “too high.” As tempting as it is to evaluate new support outcomes against current support outcomes, the appropriate benchmark is not current orders. Rather, the appropriate benchmark is the one specified in the federal regulation mandating guideline reviews: economic literature on the cost of raising children, adapted to the characteristics of separated families to ensure that orders are “appropriate” (45 CFR 302.56 (e)). The review of Minnesota's guidelines revealed that current orders for non-poor families with two or more children do not reflect what other parents at similar income levels spend on their children. For other families, particularly those in which the parent ordered to pay support is low-income, the current guidelines do not adequately reflect that parent's limited ability to pay (Beld 2001c). The agency project team, in collaboration with its advisory task force, sought to remedy both deficiencies. The overall goal of the proposed guidelines revision was to establish orders that fit the family.

What is notable about these features of the Minnesota proposal is that they emerged directly from the child support and family law professionals who participated in the guidelines review, seeking to solve problems for the families they were serving. In developing some provisions, we borrowed and adapted ideas from other states; in developing others, we were inspired by features of related state programs, such as welfare, child care assistance, and medical assistance (Beld 2001c). But it was the family law and child support professionals who kept the review agenda focused on the characteristics of the families in the child support system, and who evaluated the alternatives we considered with a view to the impact of each alternative on these same families.

Minnesota is not alone in its efforts to improve its guidelines, particularly with respect to guidelines for low-income parents ordered to pay support. The U.S. Department of Health and Human Services (July 2000), professional associations such as the National Conference of State Legislatures (Reichert 2000), and consulting firms such as Policy Studies Inc. (Legler 2003) have all weighed in on the need for states to revisit child support policies affecting low-income parents, and have offered specific policy and administrative strategies for doing so. Their recommendations are consistent with those of research institutes such as the Center for Law and Social Policy (Turetsky 2000) and the Center on Budget and Policy Priorities (Primus and Castro 1999). Obviously, these recommendations would not be necessary if child support guidelines were already producing orders that were consistently affordable for low-income parents. What is interesting is that the policy recommendations are coming from the very professionals Professor Baskerville castigates in his article. In short, even though most states' guidelines are already based on an economic model that arguably underestimates parental spending on children, the child support community is actively seeking ways to ensure that guidelines do not exceed what separated parents, particularly poor separated parents, can afford to pay.

There is no question that child support looms large in the lives of millions of children and parents. But there is also no question that the lives of these children and parents shape the content of child support policy and the relationships between the public institutions that administer it. Would that Professor Baskerville had recognized this.