• Aaron Thorup, National Conference of State Legislatures
    Family

    The disconnect between how we view child support laws and how they actually work

    The public views court-ordered formulas calculating child support in the United States and England to be unfair, according to a study released Monday that researchers hope will be valuable information for policymakers dealing with family law issues.

    Although child support laws in the two nations differ, the study, published by the Child and Family Blog, found that respondents from the U.S. and England have similar personal views on what is fair in calculating child support paid by noncustodial parents.

    "What it tells you is that the existing child support law is not consistent with the basic application of fairness that most people have," said Ira Ellman, an author of the study and professor of psychology and law at Arizona State University.

    For more than a decade, Ellman and professor emeritus Sanford Braver, also of ASU, examined public responses to the application of child support laws, along with other similar topics such as alimony and child custody.

    The research ultimately found that the public believes child support should be adjusted higher or lower based on the mother's income (assuming she is the custodial parent caring for the children). In some states, child support is based solely on the noncustodial parent's income, while in others both incomes are used in the calculation with an emphasis on the noncustodial parent's income. Each state has a set formula for judges to use in child support cases.

    Braver and Ellman both felt there wasn't enough information on the public's view in these areas of family law, and even if their findings don't result in changes they will at least give policymakers the knowledge and ability to take into account what the public finds fair, Braver said.

    "In almost every other area of law we have polling all the time and lots of information as to what the public basically thinks — that's input that policymakers can use," Braver said. "They don't have to slavishly do what the public thinks is right, but I think they ought to know what the public thinks is right."

    Law and public opinion

    Methodology for the study was unique, Ellman said. He and Braver wanted the survey to be more than asking abstract questions of people, so respondents were instead asked questions about specific cases.

    The team randomly selected prospective jurors in Tucson, Arizona — people who had been notified and were waiting for jury duty, Ellman said. Later, Ellman replicated much of the Arizona study in England, interviewing 3,000 people face-to-face.

    "We gave people cases, and said 'Imagine you are a judge and you are asked to set the amount for this case,'" Ellman said. "We would ask the question over and over, changing the incomes of the mother and father. If you ask them 'How much child support do you think people should pay?' you're asking them for all these different income combinations. It gave better insight into what their actual views were."

    Respondents were found to be three times as responsive than the law when it came to adjusting child support based on income changes of the noncustodial parent. In one hypothetical scenario, if the noncustodial parent made less than a custodial parent, the amount of child support would be lowered, by $100. In that case, the respondents reported they would actually lower the amount by $300.

    Although the study found that people believe it's fair to change the amount of child support paid if the mother's income goes up or down, the study also found that once a father was ordered to pay a certain amount, that percentage of his income should remain the same even if his income increased or decreased, Ellman said.

    "(Respondents) did not mirror the law in the way they responded to changes in either dad's or mom's income," Ellman said. "They put much more weight on mom's income; if her income went up or down, that would affect how much child support would be paid, versus what the law would require."

    Another area impacting child support that was explored in the study was reaction to the custodial parents getting remarried, and whether that might change the amount of child support paid.

    "The law doesn't pay any attention to remarriage of the custodial parent, but our respondents wanted to take into account the stepparent's income," Braver said. "That changes the resources for the child, that changes the hardship on the custodial parent, they now have the income from a new spouse to rely on. To me, that makes imminent sense that that is what is fair and just and proper."

    Practical perspectives

    However, those involved in family law have a different perspective on the hows and whys of child support calculations, including Richard McKendrick, a divorce and child custody lawyer who has been a member of the Family Law Section of the Florida Bar since 1998.

    Remarriage doesn't change anything in child support cases "simply because the new stepparent is not the parent of the child and doesn't have the legal responsibility. The parent still has the responsibility," McKendrick said.

    Child support in Florida is based on the incomes of both parties, as well as the overnights that the child or children spend at each parent's house.

    Because many individuals in the public are not in the middle of child support cases, it's hard to have a complete understanding of all of the circumstances and what's involved in figuring out what child support should be, McKendrick said.

    "You have to have a system that is pretty universal, so that there's a certain fairness in making that decision," he said.

    In most cases both parties don't believe that the law is treating them fairly — the side being paid child support doesn't think it is enough, the side paying thinks it is too much, McKendrick said.

    There may be a father who has to keep paying the mother more child support due to his rising income but is still having a difficult time making ends meet, McKendrick explained. However, he hasn't had to pay any medical bills for the children for years, and that may not be something people know.

    "The public might be a little naive as to the cost of making it as fair as possible," he said.

    However, there are some who see inequities and want changes in a system that affects many families, said Robert Franklin, who is on the board of directors for the National Parents Organization. NPO usually works with noncustodial parents in child support and custody disputes.

    "Child support is routinely established at levels higher than the noncustodial parent can pay," Franklin said.

    Child support is determined by judges who refer to an income table and set of guidelines. Judges do have the authority to depart from those guidelines and modify amounts depending on certain circumstances, but they must justify in writing why a case needed different treatment, Franklin said.

    The difficulty of modifying court-ordered child support in situations where noncustodial parents have lost their job or had a pay cut is another shortcoming Franklin would like to see changed. The system requires them to hire a lawyer to prove their inability to pay the required amount, he said.

    "Child support is something that is, unfortunately, necessary, because we do have a high rate of divorce and there are children that need support from both parents, but we can do a much better job than we do, we can do a much fairer job than we do," Franklin said.

    Consistent opinions

    When Ellman and another team later replicated the study in England, the questions that were focused on pertained solely to child support and the public's decisions if they were the judges deciding.

    "What was, I think, very interesting they gave exactly the same results on mothers' income, they did it even though in the U.K. mothers' income doesn't matter at all, they apply the father's income and use that," Ellman said. "What people thought was right and fair was very different from English law."

    There are nine states in the U.S. and the District of Columbia that have the same law as the U.K. and don't take the custodial parent's income into account with child support cases. However, in all cases, the law counts this parent's income much less than the respondents counted it, Ellman said.

    Though the many studies were only conducted with groups in Arizona and England, the demographics were all across the board, and were purposely put into the study overviews, to show that responses were similar from all different people, Braver said.

    "You get that same result no matter what — if it's about women and men, there's no difference. High-income people and low-income people are the same, same pattern. If they're Democrats and Republicans, no difference," Ellman said. "You get this result over and over again, it's true in the U.K. also, so that's a powerful result, I think."

    Email: mmorgan@deseretnews.com, Twitter: mandy_morg