Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 38

I’m now covering the chapter “Child Support”. Child Support is a 18 page chapter and when reading through it a second time, I will have to cover this chapter in full. Once I get through this chapter I will be able to breeze through the final three chapters in this book.

With that said, more from the words of Jed Abraham.

When the court cuts you off from your kids, it will take the opportunity to tell you how important it will be for you, from now on, to be a good father to them. In fact, the court will tell you exactly how good a father you will have to be. The court knows. It has guidelines. The guidelines tell it how much income a good father like you must pay in child support.

You may think that your child support obligation should be based on your children’s needs. You may think the court should craft its order with an eye toward what you and your wife historically spent on your children. The guidelines, however, are amazing. They are not based on your children’s needs. They are not based on what you and your wife spent on your children during marriage. The court only needs to know how many children you have and how much money you make. It can then just look up in the guidelines how much child support you have to pay. The guidelines know. They were made by experts.

It wasn’t always so. Under the common law, a father, even during marriage, was sole custodian of his children. As sole custodian, he was solely responsible for their support. But like most relationships, custody was two-sided. In resturn for supporting his children, a father could require their obedience and expect their affection. He was also entitled to their income, and he could trust that in his old age they would reciprocate his support, should he need it.

But when courts began taking custody away from divorced fathers and giving it to mothers, issue of how to pay for the children’s needs was thrown into sharp relief. It appeared that the mother, as newly appointed sole custodian, now had the sole support obligation also.

But instead of conceding that the ability to provide support was an inseparable part of custody, instead of rethinking their reflexive rush to mother custody, the courts simply deconstructed custody. They began to conceive of custody as a divisible bundle of rights and responsibilities. Custodial responsibilities included the responsibility to support the child. When they took away the father’s custodial rights, they didn’t necessarily take away his custodial responsibilities. The father could no longer live with his child, but he surely could still pay for its support.

So, in a case in which the mother didn’t deserve alimony-if she committed adultery-but the court ruled it was in the “best interest of the child” to be raised by its adulterous mother, a new source of funding for the child was now forthcoming. The father had to pay child support to the mother, regardless of her marital fault, because child support was for the child, no the mother, and the father’s obligation to support his child remained with him even though his right to remain with the child didn’t.

Nevertheless, in setting the amount of support, the courts took a pragmatic approach. They tried to assess the needs of the child and the ability of the father to pay. Each case was considered on the basis of its particular facts and circumstances. The practical parameters were: the child should not become a public charge, and the father should not be stymied from getting on with his life. Within those limits the courts tried to find a workable balance.

More on the chapter “Child Support” on the next summary