A $1.2 million penalty for child support denial

On Nov. 29, 2007, the Supreme Court of Illinois upheld a failure to pay child support penalty in the amount of $1.2 million. If you think this was an outrageous penalty that had no relation to the amount of actual child support owed, you are right. If you think the Illinois Supreme Court probably got this one wrong, you are probably right. However, any employer responsible for remitting child support payments on behalf of an employee certainly won't be remitting those child support payments late anymore.

Here are the facts: Lenora's former husband, Harold, was ordered to pay Lenora child support in the amount of $82 per week. Harold worked for his father in his father's architecture firm. Harold's father properly received a notice from Lenora's attorney requiring Harold's father, and his architecture firm, to withhold $82 per week from Harold's pay, and remit this child support payment to Lenora on a weekly basis. The facts are as plain and simple as that.

As of Jan. 1, 1999, the Illinois Legislature enacted a child support statute which provides for a $100 per day penalty for each child support payment not made in a timely fashion. For example, if an employer pays his employee a salary each week, the employer is required to withhold child support from his employee's pay check on a weekly basis.

If the employer does not withhold the requisite child support and send the money to the custodial parent each week, then the penalty applies. If the employer does not remit child support payments for 130 weeks, as Harold's father failed to do, each of the weekly child support payments continue to incur a $100 per day penalty for each day the child support payments remain unpaid.

In the Miller case, Harold's father (and employer) accumulated 11,721 penalty days at the rate of $100 per penalty, for a total of $1,172,100 in penalties. As an aside, the unpaid child support totaled a mere $12,382.

As you might expect, the Illinois Legislature has broad discretion and authority to impose fines and penalties for violations of its statutes. Indeed, such governmental authority has existed for years.

The Illinois Supreme Court made several statements about this child support penalty, including the statement that, "It is difficult to imagine a more compelling state interest than the support of children."

The Illinois Supreme Court also noted that it is impossible to quantify the harm suffered by custodial parents when they do not receive child support on a timely basis, which may prevent a custodial parent from purchasing essentials such as food and medicine for a child.

It is doubtful that the entire penalty will ever be paid; however, obligations to pay unpaid child support are non-dischargeable in bankruptcy, and therefore, will probably never be removed from the employer's record.

In conclusion, it may well be that the penalty imposed on Harold Miller's father/employer was excessive, unreasonable, harsh and oppressive. The penalty was nevertheless legal, enforceable and will most certainly deter employers in the future from failing to withhold child support payments from employee pay checks, and remitting these child support payments to the appropriate party.

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Sperm Donor Wins Case Over Child Support

The Associated Press: Sperm Donor Wins Case Over Child Support

HARRISBURG, Pa. (AP) — The Pennsylvania Supreme Court ruled that a woman who promised a sperm donor he would not have to pay child support cannot renege on the deal.

The 3-2 decision overturns lower court rulings under which Joel L. McKiernan had been paying up to $1,500 a month to support twin boys born in August 1994 to Ivonne V. Ferguson, his former girlfriend and co-worker.


"Where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting a would-be mother's reproductive prerogatives," Justice Max Baer wrote in the majority opinion issued last week.


Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, said the decision runs counter to the pattern established by similar cases, where the interests of the progeny have generally been given great weight.


"It sounds like the Pennsylvania court is trying to push a little harder into the brave new world of sperm, egg and embryo donation as it's evolving," Caplan said.


McKiernan's lawyer, John W. Purcell Jr., said Wednesday an adverse decision against his client would have jeopardized the entire system of sperm donation.


"That wouldn't just include Pennsylvania, because we found out in the course of this trial that many doctors order their sperm for their artificial inseminations out of state," he said.


Ferguson and McKiernan met while working together at Pennsylvania Blue Shield in Harrisburg and had a sexual relationship that waned before Ferguson persuaded him to donate sperm for her.


Courts found that the two agreed McKiernan would not have to pay child support and would not have visitation rights, but Ferguson later changed her mind and sued.


A county judge said it was in the twins' best interests that McKiernan be required to support them. In addition to monthly payments, McKiernan also was ordered to come up with $66,000 in back support. The appeal reverses that order.


Elizabeth Hoffman, Ferguson's lawyer, did not immediately return a phone message seeking comment left at her office Wednesday.


Justice J. Michael Eakin, in a dissent, said a parent cannot bargain away a child's right to support. "The children point and say, 'That is our father. He should support us,'" Eakin wrote. "What are we to reply? 'No! He made a contract to conceive you through a clinic, so your father need not support you.' I find this unreasonable at best."


On the Net:

* Majority opinion:here

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Even without DNA match, child support may be enforced

Yes but I don't think the courts would see it the same way if this men filed for custody, would they.

today - News - Missouri State News

KANSAS CITY — David Salazar and his estranged wife agree the daughter she gave birth to 14 months after the couple separated is not his. But Salazar narrowly avoided being jailed for 28 days in Buchanan County for failing to pay child support. Now Sen. Chris Koster, a Harrisonville Democrat, plans to try again to change how Missouri law deals with child-support cases involving men who deny paternity. The measure he introduced in the 2007 legislative session failed. Backers of the proposal say cases such as Salazar's show the state's paternity laws are outdated now that DNA testing is available. Critics say changing the law could hurt children caught in the middle. Advertisement Several other states have passed laws that allow men to introduce DNA evidence even after state-set deadlines for contesting paternity have passed. In Salazar's case, his estranged wife, Shannon McClure, asked the hospital not to list a father on the birth certificate in November 2001. But court records said the hospital listed Salazar as the father anyway. The Missouri Division of Child Support Enforcement named Salazar the father without DNA testing and served him with notice that he had a duty to support the girl. When Salazar did not appear at a hearing to determine his financial responsibility, the child-support division entered a default order requiring Salazar to pay child support. That default order was docketed with the circuit court, but the court did not hold a hearing or give any notice to Salazar. Salazar was charged with failing to pay child support after he didn't contest paternity by a state deadline. The only two witnesses at his trial were Salazar and McClure, both of whom testified that the child was not Salazar's. But a Buchanan County judge found him guilty of not paying $278 a month in child support, ruling that the Division of Child Support Enforcement's order was enough to make Salazar the legal father of the girl. Salazar was sentenced to 28 days in jail, but the Missouri Supreme Court in October overturned the jail term. The court found that Salazar can't be jailed without a hearing before a judge and a chance to prove that he is not the father. Regardless of the judge's ruling on the issue of paternity, Salazar will have to continue to pay child support. "He's not over this deal," his attorney, Merle Turner, said. "It is a can of worms." The Supreme Court's ruling affects only men who are married at the time their wives have children. Under state law that ties back to English Common Law, a married man is presumed to be the father of his wife's child and the Division of Child Support Enforcement had been able to declare such men fathers without a hearing. Larry Swall, a Liberty lawyer who is chairman of the Family Law Committee of the Missouri Bar, said the state treats men harshly from the start. spacer

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Contempt motion on support issue must be signed by a lawyer

For those in VA that might have been following the Briggman case over the years. I can only wonder how this decision will play out over time in Virginia

 

Judge: Contempt motion on support issue must be signed by a lawyer
By Alan Cooper

Staff members of the Virginia Division of Child Support Enforcement no longer are signing motions to hold in contempt parents who are delinquent in their support obligations.

The decision to abandon the practice was made after Kimberly J. Daniel, a juvenile and domestic relations district judge in Fairfax County, ruled that Virginia Code Sect. 8.01.271.1 requires such pleadings to be signed by an attorney.

The absence of a lawyer's signature makes such pleadings void ab initio, Daniel ruled on Oct. 30.

Craig M. Burshem, a senior assistant attorney general who represents DCSE, said he disagrees with Daniel but does not want to run the risk that a DCSE employee could be charged criminally with the misdemeanor of practicing law without a license. One of the 45 attorneys who routinely represents the division will sign such motions, he said.

John L. Bauserman Jr., the attorney who represented the father, and David B. Briggman, a father who believes he has been abused by the failure of DCSE to follow what he views as the law, contend that Burshem's change of position comes 20 years too late.

And they argue that the logical extension of their position has truly staggering consequences. They contend that the absence of a signature by an attorney on motions to establish child support, modification of existing orders and the enforcement of existing orders means that those pleadings are a legal nullity.

As a result, they contend, courts lack the authority to enforce tens of thousands of orders ostensibly obtained by DCSE over the past 20 years.

Briggman has filed a pro se complaint in U.S. District Court in Harrisonburg asking a federal judge to make such a ruling. Judge Glen A. Conrad heard arguments last month on the Virginia attorney general's office's motion to dismiss Briggman's suit.

He had asked the judge to bar non-lawyers from filing such pleadings, but an assistant attorney general told Conrad that they would no longer do so.

The AG's office contends that Code Sect. 16.1-260(A)(ii) authorizes non-lawyers to file such pleadings. A formal attorney general's opinion in 1988 reached that conclusion, but Bauserman and Briggman emphasize a significant qualification in the opinion. Filing such pleading is not the practice of law only "to the extent that the information provided by such employees is limited to facts, figures or factual conclusions and does not include legal arguments or legal conclusions."

Any motion to hold a parent in contempt is making a legal argument and asserts a legal conclusion that the parent is delinquent in his support obligations, Bauserman said.

Briggman filed a complaint with the Virginia State Bar's Standing Committee on the Unauthorized Practice of Law, which agreed with Briggman that completing and filing form pleadings by lay employees is the unauthorized practice of law.

But the committee found in February 2006 that Code Sect. 16.1-260(A)(ii) "authorizes the DCSE to file such pleadings on its behalf, through its lay employees and, therefore, that the conduct complained of is the authorized practice of law by such employees."

Bauserman contends that is an erroneous reading of the statute. The law requires most proceedings in juvenile court to go through an intake officer and lists three specific exceptions in which pleadings can be filed directly with the clerk: petitions from the commonwealth's attorney or county attorney, petitions by an attorney on behalf of a client, and support petitions by the Department of Social Services on its own motion.

Allowing the department to file motions with the clerk does not mean that an employee rather than a lawyer can do so, Bauserman said.

One case permitting

In what is apparently the only circuit court ruling on the point; Judge William D. Broadhurst of Roanoke interpreted the statute in September 2006 to allow employees to file pleadings on behalf of the department. Because an attorney can file pleadings under the exception that allows any attorney to file directly with the clerk, the special provision for the department would be superfluous if it needed an attorney as well, Broadhurst wrote in Commonwealth ex rel. Brazell v. Doss (VLW 007-8-274).

Bauserman is unpersuaded and says having laymen rather than lawyers investigate the basis for a pleading can have real consequences.

He cited as an example the year-long incarceration of a father on what he contends was an outdated administrative order from the department. After the mother obtained an administrative support order, the father went to court and won custody of the child. The father then obtained an amended administrative order eliminating any future support obligation and noting arrearages of less than 12 weeks.

A few months later, the mother regained custody but Bauserman contends that the amended support order was never withdrawn nor changed. Nevertheless, years later, DCSE sought and obtained a contempt citation based on the original order. Bauserman contends that a lawyer was more likely to have caught that error than a layman.

The father's attorney did not raise the issue at the contempt proceeding, and the judge ordered him to jail. The father could not appeal because he could not post a bond to cover the arrearages that the judge found to have accrued.

"On the face of it, this is not a popular group of litigants," Bauserman acknowledges.

But the law specifies that the signature of an attorney on a pleading certifies that he believes its contents to be well-ground in law and fact. When a non-lawyer is allowed to sign a pleading, no one is accountable—ethically or otherwise—for an inadequate investigation, he said.

Burshem, the DCSE attorney, said Bauserman's position is "strictly an ethical argument. … Nobody is making an allegation that the substantive law has been violated."

Bauserman responds that the law still is being violated, and "we don't get to pick and choose which laws we can follow."

Burshem said DCSE has several options to address the complaints of Bauserman and Briggman, including seeking legislation or a Supreme Court rule change to allow staff members to sign such pleadings. No decision has been made on what approach to take, he said.

 

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Contempt motion on support issue must be signed by a lawyer

Judge: Contempt motion on support issue must be signed by a lawyer
Staff members of the Virginia Division of Child Support Enforcement no longer are signing motions to hold in contempt parents who are delinquent in their support obligations. The decision to abandon the practice was made after a juvenile and domestic relations district judge in Fairfax County ruled that Virginia Code Sect. 8.01.271.1 requires such pleadings to be signed by an attorney.
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Plundering fatherhood

By Stephen Baskerville

Fatherhood is all the rage. President Bush unveils a $315 million plan "to promote responsible fatherhood." Sen. Evan Bayh, head of the Democratic Leadership Council, hosts a televised conference on "Connecting Fathers and Families" and promises to make fatherhood a top issue. Both houses of Congress, plus the governors and mayors, create bipartisan taskforces on "fatherhood promotion" and issue resolutions affirming the importance of fathers. The National Fatherhood Initiative holds a Fatherhood Summit in Washington on June 7-8.

How, precisely, the state can promote something as personal and private as a parent's relationship with his own children (let alone whether it should) is seldom explained. But if government fatherhood programs sound somewhat nebulous, there is a more concrete side to our leaders' discovery of fatherhood. In 1998, President Clinton signed the ominously-named "Deadbeat Parents Punishment Act" and announced a "new child support crackdown ... to identify, analyze, and investigate [parents] for criminal prosecution." On the campaign trail Al Gore called for jailing more fathers.

In Virginia, a commission dominated by lawyers, judges and feminists moves to increase child-support obligations. In Alabama the government calls fathers "dogs" and announces increased measures to hunt them down.

That a crisis of fatherhood exists can hardly be denied. Forty percent of American children and 60 percent of African-American children now live without their fathers. Moreover, the social and personal pathologies directly attributable to father absence – crime, unwed motherhood, truancy, drugs and alcohol – are now too well known to belabor.

But what may be at work here is government, once again, creating a problem for itself to solve. Certainly policymakers are so intent on registering their concern that they never stop to tell us where the problem comes from in the first place. The often unspoken assumption is that these fathers have, in Clinton's words, "chosen to abandon their children." Yet there is no evidence this is true.

No academic or government study has ever demonstrated that large numbers of fathers are voluntarily abandoning their children. On the other hand, no knowledgeable policymaker or scholar denies that millions of fathers are involuntarily separated from their children by government officials.

Of the almost 1 million divorces each year involving children, at least two-thirds to three-fourths are initiated by mothers, according to Sanford Braver of Arizona State University and other scholars. In the largest federally-funded study ever undertaken on the subject, Braver confirmed previous studies showing that overwhelmingly it is mothers, not fathers, who are walking away from marriages without legal grounds. These divorcing mothers have virtual certainty of getting the children and a large portion of the father's income, regardless of any fault on their part.

What is happening in divorce courts is much more serious than gender bias against fathers. A massive divorce industry is finding it increasingly easy – and lucrative – to simply eliminate fathers from their families with no show of wrongdoing and seize control of their children. The industry consists of judges, lawyers, psychotherapists, social workers, bureaucratic police and women's groups – all of whom have one interest in common: separating as many children from their fathers as possible. A father can then be plundered for almost any amount in coerced attorneys' fees, involuntary psychotherapy, and "child support" which his children may never see. Failure to pay frequently results in incarceration without trial.

"The only power any government has is the power to crack down on criminals," wrote Ayn Rand. "When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."

What we are seeing today is nothing less than the criminalization of fatherhood itself: criminal penalties imposed on parents who have committed no act but are made outlaws through the actions of others in ways they are powerless to avoid. Once the father is stripped of custody, his contact with his own children outside government-approved times and locations becomes a criminal act. His criminalization is further consolidated through forced legal fees and impossible child-support burdens.

Child support obligations are determined by the same enforcement personnel who collect them. Such legislating by courts and enforcement agencies raises serious questions about the separation of powers and the constitutionality of the process. Where government officials develop an interest in hunting "delinquents," it is predictable that they will create delinquents to hunt. The more onerous the child-support levels, and the more defaults and arrearages, the more demand for coercive enforcement and for the personnel and powers required.

Private collection firms, such as Policy Studies, Inc., of Denver, are also involved in setting the levels of what they collect. Not only does an obvious conflict-of-interest arise in terms of the amount to be collected, but the firms can create precisely the "delinquents" and "deadbeats" they are hired to pursue and on which their business depends.

A presumption of guilt pervades the courts themselves, where "the burden of proof may be shifted to the defendant" according to a legal analysis by the National Council of State Legislatures. In clear violation of the Constitution, courts have held that "not all child support contempt proceedings classified as criminal are entitled to a jury trial," and "even indigent obligors are not necessarily entitled to a lawyer." Thus impoverished parents who lose their children through literally "no fault" of their own are the only citizens who – when they are fortunate enough to be formally charged and tried at all, before being incarcerated – must prove their innocence without counsel and without a jury of their peers.

Rather than confronting this appalling violation of both family integrity and constitutional rights, our elected leaders are cooking up fatherhood programs that may do more harm than good. In Massachusetts, state officials have used federal money to draw up a list of "Five Principles of Fatherhood," including: "give affection to my children" and "demonstrate respect at all times to the mother of my children." One cannot help but wonder what penalties the state will bring to bear on fathers who fail to show sufficient "affection" and "respect."

In an attempt to soften its image, the National Child Support Enforcement Association declares, "Child support is more than money. Child support also is love, emotional support and responsibility." Yet there is something troubling about bureaucratic police taking it upon themselves to define and enforce a parent's love and emotional support of his own children. Is the state, with its armed agents and penal apparatus, mandated to punish fathers deemed to be delinquent on this as well?

There is nothing mutually exclusive about protecting the rights of parents and their children not to be separated without cause and enforcing child support collection on those men who truly abandon the offspring they have sired. Requiring men to accept financial responsibility for their progeny has been a matter of public policy for centuries. Forcing fathers to "finance the filching of their own children," as attorney and author Jed Abraham puts it, is a prescription for social and political destruction. Yet this is the experiment on which we are now embarked.

It might not be necessary for government to promote fatherhood if only government would stop destroying it.

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Stephen Baskerville teaches political science at Howard University in Washington, D.C.

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Give gift of child support at holidays

Story Link here

You might believe that parents separated from their kids might do a little extra during the holidays. They'd want their offspring well fed, in warm clothes against the cold. And that either because of parental love or guilt that they're absent, the child would have plenty under the tree on Christmas.

In many cases you would be 100 percent wrong.

Instead, according to the Virginia Department of Social Services, some folks purposely skip paying child support in November and December. They know the state will intercept their tax refunds early next year. So in their selfish little minds, parents count on children getting the support. Just not now.

Merry Christmas, kid.

Veteran child support employees are familiar with the trend.

"It's a phenomenon that repeats itself every year," said Nick Young, director of child support enforcement for the DSS.

Young has heard it all: Parents get distracted. They've moved on to the second or third families and forgotten about the first.

But more than likely, the parent who has custody of the child is counting on the support to go holiday shopping.

"What are they going to do?" Young asked, "Buy them Christmas gifts in February?"

Last month, Young sent 150,434 Social Security numbers to the Internal Revenue Service and the Virginia Department of the Treasury. Updated biweekly, the numbers belong to parents who are $500 or more behind on their child support.

"If they have money coming back, we'll get it," Young said.

In 2006, "tax intercepts" collected $33 million from federal returns and $2 million from the state. The money was forwarded to the children to whom it was owed.

In a state where 484,000 children receive child support, DSS has implemented new programs and is rethinking old ones in their effort to snare support scofflaws.

Good. The state needs to use all its resources to fight for Virginia's children. If it doesn't, the debt falls to us. One-third of parents who do not receive child support end up on public assistance to meet their families' basic needs.

In the year ended June 30, Virginia collected more than $608 million in child support, a nearly 4 percent increase from the previous year. In Virginia, 88 percent of adults paying child support are men; 12 percent are women.

That sounds like a lot of money. But it's a small proportion of the total due: About 268,000 delinquent Virginia parents owe $2.4 billion in child support.

Last month, Virginia received a southern regional award for implementing a first-in-the-nation program that targets scofflaws through their cellphones. Since the state created the program two years ago, more than a dozen states have established it.

Young and his staff came up with the idea after realizing that cell-phones, which about 70 percent of Americans possess, could be a useful collections tool.

After exhausting every other method of locating a delinquent parent, the state subpoenas cell-phone companies to determine if the parent is a customer and has a billing address.

Twice a year, social services sends a list of names to the largest cell-phone companies that operate in Virginia. Officials request only an address, but some companies send the address and the person's cell-phone number. Companies do not send a list of phone numbers the person has called.

The practice has drawn rumblings in a state where people celebrate privacy. The idea of companies' releasing information for government use leaves me queasy, too.

But the idea of a parent refusing to take care of his or her child leaves me even queasier. In this case, I'm willing to ask the cell-phone company to give up the digits.

"Look, we're going to use all available means to find them," Young said last week. "I just want the address. ... I'm into, 'Where are you?' "

In addition to the cell-phone initiative, DSS began its "Early Intervention" program. That program meets with parents as soon as they receive an order to pay.

Case workers emphasize parents' responsibilities and ask if they face any issues that might hinder them from paying. For instance, if the person is jobless or underemployed, officials direct them to existing agencies in the community to help.

As young employees join the staff, child enforcement increasingly has gone high-tech. Caseworkers scope out MySpace and Facebook pages to track scofflaws.

"We've had people who say, 'I can't believe you found me off my blog,' " Young said.

Many people are familiar with the infamous "Most Wanted" deadbeat parent lists.

Just last week, Young and his staff discussed whether they will continue to use it as a poster or scrap the paper version after 19 years in favor of an online-only version.

Using the posters, the state has found 140 people, Young said.

As technology changes, Young said the state is willing to consider different ways of tracking delinquent parents.

"What we're trying to do is convince people to modify their behavior," Young said. "If you're going to live in the great state of Virginia ... we need you to take care of your kids."

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