Antiquated child support laws are trapping divorced co-parenting dads in a devastating financial bind.
More and more dads and moms are committing to co-parenting their children following their decision to divorce. Their marriage may not have lasted but they often realize that their family still exists and is in need of their continued care and support.
Many fathers who do go through divorce are asking the court for shared parenting arrangements that allow them to be with their children up to 50% (and sometimes more) of the time. And yet, these same dads are often ordered by the courts to pay 100% of the child support into their former spouse’s bank account for the purpose of raising the child. It is as if the courts consider real and daily co-parenting by the father to be somehow financially invisible.
Instead, co-parenting couples should be able to set up and share an account where the child’s support funds are deposited and spent from. Under such an arrangement, both households would be able to access court ordered funds for the child. This assumes the existence of a working co-parenting partnership vs. an acrimonious relationship. But institutions that assume the possibility of positive co-parenting relationships will grow that outcome. Sadly, positive co-parenting arrangements are the least likely outcome when couples with children seek a divorce.
This is due to the courts’ structural inability to manifest equitable shared parenting arrangements. Arrangements which, in all fairness, should require that the child’s money travel with the child to each of their households, to be accessed by both parents in the care of the child. Why can’t the courts manage this? Because the courts’ processes and legal history aligns itself with the idea that divorce is acrimonious and fathers absentee. We can only hope the hard work being done by collaborative divorce advocates will overturn this long standing combative model for divorce, creating new and better case law. But in the mean time, committed co-parenting fathers are getting the worst of it.
All of this is rooted in antiquated divorce and child support laws which seek to insure that “deadbeat dads” pay. Sadly, deadbeat dads, a biased and stereotyping term has, in the eyes of the law, come to typify all divorced dads until they prove themselves otherwise. But these laws which focus on getting negligent dads to pay have created a default legal structure that punishes fully engaged co-parenting dads and offers no simple legal path forward for men and women who want to create an equitable co-parenting relationship.
As Clayton Craddock noted in his recent article, Stop Paying Child Support by Supporting Your Child, parents can opt out of child support in New York State, but only if both agree to allow it. This is backwards. The default should be a co-parenting position with the onus on the divorce process to ferret out potentially irresponsible dads or moms. But if both parents can prove they intend to stay engaged, they should be encouraged to do so without one being financially punished simply because of his gender.
Hundreds of thousands of American men are curbing their professional goals and choosing instead to raise their children, in partnership with their wives and sometimes in leu of them, giving mothers a chance to chase their professional dreams. The New York Times recently reported US Census Bureau estimates that put the number of dads who are primary care givers at 626,000. This does not take into account the millions more men who are half-time parents. Often, women are making more money than the men in these families, as dads take a financial hit to become the primary care givers.
But should these marriages end, the courts default to imposing child support arrangements designed to punish deadbeat dads, arrangements that make no provisions for equitable co-parenting. If a couple, in the midst of the challenges of divorce, wants to craft a co-parenting arrangement, archaic divorce case law often reinforces mechanisms that encourage combative outcomes instead of collaborative solutions.
In New York State, for example, the law governing child custody payments is maddeningly inflexible. Even in the case where both parents seek shared custody, the State of New York insists on designating one parent custodial and one noncustodial for the purpose of child support payments. Have a look at this page on the New York Division of Child Support Enforcement’s web site, if you’d like to see the baseline assumptions in New York State’s circa 1970’s Child Support Standards Act. Scroll down about halfway to the section titled Am I the Legal Father of My Child? That should make it pretty clear where the bias lies.
Under the New York Child Support Standards Act, the noncustodial parent pays child support to the custodial parent – always. The base payment is calculated by a formula applied to the parents’ incomes, and on top of that the noncustodial parent will contribute to the custodial parent’s childcare expenses, as well as certain other expenses.
For example, if the custodial parent earns 75k while the noncustodial parent earns 25k, by default, the noncustodial parent would have to pay the custodial parent $4,250 per year. If the custodial parent pays $10,000 per year in child care, the noncustodial parent would have to send them an additional $2,500 per year.
That might make sense if the noncustodial parent has the child every other weekend plus two weeks in the summer. But what if the custody arrangement is split 60%/40%? Or even 51%/49%? In that case, the noncustodial parent is almost certainly paying child-related expenses, including childcare, out of pocket. Their childcare expenses alone may be nearly as high as the custodial parent’s. Under the default CSSA calculation, a poorer parent with 49% custody would end up being responsible for paying the entirety of her own childcare costs while also being obliged to contribute to the childcare costs of the richer parent with 51% custody.
By insisting on designating a single custodial parent where child support is concerned, the New York Child Support Standards Act sets the stage for family courts to arrive at unfair and often gender-biased divorce settlements. Someone is ALWAYS going to get stuck handing the other parent 100% of the child support bill, regardless of how much time they care for their child. And typically,when push comes to shove, mothers have an easier time getting designated as custodial parents. This lingering pro-mother bias which permeates the courts can leave engaged, committed fathers having to pay twice for the right to co-parent their own children.
Rich Man Poor Man
Tens of thousands of post-divorce dads make half time or even full time homes for their children, taking their kids to school and doctor’s appointments, attending to their homework, cooking them three meals a day, putting them to bed and getting them up day after day, week after week, year after year. They do it for one simple reason. Because they love their children. And yet, culturally, the courts’ default position is to have dads write a child support check to their former spouses, as if men, by virtue of their gender, should pay support to the “real parent”. Ultimately, these dads would continue to raise their kids regardless of the challenges it can create, financial or otherwise. But at a price that can financially cripple them over the long term.
Courts typically determine child support based on a percentage of the family’s income. I have no quarrel with this. It is a helpful way to determine what percentage of the family’s resources can and should be directed to meeting the needs of the child.
But in a legal system that first and foremost defaults to ordering child support payments, the core concept of fairness in co-parenting arrangements is tossed out on day one. Ordering one co-parent to hand full time child support funds to the other, even while taking on a sizable role in daily parenting, forces said parent to abdicate control over how those full time parenting funds are spent. It would make much more sense legally for both parents to contribute to a single account and then split the funds based on the percentage of time each parent is scheduled to spend with the child. And this should be flexible over time, making space for changes as they occur over the years. Child support funding should be reviewed annually depending on changes in either parent’s income through such things as employment, job loss, inheritances or getting re-married.
As it is, one parent’s court-ordered child support payment will simply disappear behind the firewall of the other household. Then, unless said parent returns some of those funds voluntarily, the noncustodial co-parent (typically the dads) will pay the costs for his kids at his house as well, costs which the court seems to think are somehow invisible. Instead of the, say, 17% of the family income being used to calculate child support, a co-parenting dad will spend as much as 25% of his income funding his child’s needs twice, the second time being at his house, because the court has refused him any of the funds designated for raising that child. It is an end-of-marriage penalty that specifically hits fully engaged co-parenting dads. Leaving lower income co-parenting dads with no choice but to work more and raise their children less. A heartbreaking choice for any committed father to face.
And Don’t Get Me Started on the IRS
In balanced co-parenting relationships, where both parties are actively contributing to the child’s welfare, the IRS should designate a way for each co-parent to take half the dependent deduction. As it is, you can only trade off every other year for the deduction or the deduction goes to the party paying the child support which allows no flexibility for acknowledging funds spent by the other co-parent. Summer camp, health care and other expenses can not be deducted unless the child is your dependent. So any house hold that is not so designated looses out on these significant tax deductions. Which, in turn creates pressure not to contribute.
In fair co-parenting relationships, both parties can voluntarily realign the financial arrangements without regard to what the court has ordered. But its is grossly unreasonable to assume that women or men in the heat of a divorce would not leverage what advantage they can from prevailing legal precedents. And we have decades of acrimonious case law dating from a time when divorced dads where expected to simply disappeared from their children’s lives. This was a tragedy on a multitude of levels, but if we are are really committed to creating equality for men and women in our culture, judges and family courts must begin to view divorcing dads as something other than human ATM’s. Otherwise, fully engaged co-parenting fathers will have to soldier on under damaging financial and legal burdens, relying only on the good will and fairness of their former spouses to level the playing field.
The Bigger Question
Divorce, child support, alimony, earning power and child custody all sit squarely at the center of a heated debate between a range of groups including feminists and men’s rights advocates. But it is evident to those of us seeking collaborative solutions that no one side in any of these debates has a monopoly on the moral high ground. As our society’s aging laws continue to be enforced decades later, we must examine the increasingly negative impact of these laws as society evolves. Yes, we need laws which address the longstanding issue of fathers who do not fulfill their obligations to their children. But we must also be mindful that the leading edge of positive parenting change not be blunted by these laws which unfairly punish divorced dads who are committed to co-parenting in ways that directly benefit our children, our families and our society.
We need new legal frameworks nationwide that encourage and value vibrant co-parenting and shared custody arrangements, putting in place more flexible, adaptive and sustainable divorce agreements that grow out of the life affirming spirit of collaborative divorce. Our legal system needs to empower fully engaged co-parenting dads and moms as equal partners in raising their kids. These parents should be paying into and receiving a fair share of designated child support funds and other rights based on what they are committed to do in support of their kids and their new post-divorce families.
We must create space, culturally and legally for the deeply humane and admirable child raising solutions that are evolving all around us. Or risk killing the very change we are seeking to create.
Photo illustration by Mark Greene
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