From: kaskubar@mayo.edu (Bruce Kaskubar)
Subject: Improving Family Law
Organization: Mayo Foundation, Rochester MN. Campus
Distribution: usa
Date: Fri, 22 Jan 93 16:28:43 GMT

Following, is a report given to Minnesota's Supreme Court Chief  
Justice and sent to eight state legislators (of districts 30 and  
31).  The report includes footnotes and references, not  
(unfortunately) reproduced here.

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Table of Contents

Abstract
What are some contributing factors to the growth in juvenile crime?
What other maladies can be linked to single parent homes?
What causes single parent homes?
What can the legislature do?
Share Care
Identify Fathers
Reduce Divorce
Inform Judges
Enforce Visitation
Reduce Pretense and Increase Protection Under the Law
Provide Equal Access to Government Agencies
What else can the legislature do?
Audit Guidelines
Make Child Support Taxable to the Recipient
Mediate Instead of Litigate



Abstract

The authors of this paper indicate weaknesses in existing Minnesota  
family law, particularly with regard to divorce, and suggest  
changes that make it more equitable for the parents and children of  
divorce, reduce state expenditures, and improve the quality of life  
for each citizen of the Gopher state.

What are some contributing factors to the growth in juvenile crime?

In 1991, youths under the age of 18 were the subject of 24% of all  
Minnesota arrests and 42% of the arrests for serious crimes.  State  
senator Randy Kelly thinks it s time to determine causes of crime  
and spend money to prevent it.  We may not need to spend money to  
prevent it, depending on its cause.  

Consider:

1.	About twenty years ago, Daniel Patrick Moynihan wrote:

"When a family breaks down, young men ultimately lose a sense of  
character and responsibility. There is one unmistakable lesson in  
American history: A community that allows a large number of young  
men to grow up in broken families dominated by women ... asks for  
and gets chaos, crime, violence, unrest, disorder ..."

2.	70% of the juveniles in long-term correctional facilities  
came from fatherless homes.  This would not be surprising if 70% of  
the general population came from fatherless homes but "only" 25% of  
children have been raised by just one parent and that includes  
those where mothers were absent.  The fatherlessness of juvenile  
inmates appears to be about 3 times expectation, relative to their  
numbers in the general population.

3.	Most children of divorce are placed in the sole physical  
custody of their mothers and 87% of single parents are women.

Is there a correlation between these observations and the juvenile  
crime wave in Minnesota?  It would only be surprising if there were  
not.

What other maladies can be linked to single parent homes?

Youngsters who have attempted suicide differ little from those who  
haven t, in terms of age, income, race, and religion but are much  
more likely to be from non-intact family settings and to have  
minimal contact with their fathers.

Daughters of single parents are 111% (2.1 times) more likely to  
have children during their teen years than are daughters from  
intact families and 60% of families that receive AFDC are headed by  
women who were teenagers when they had their first child.

What causes single parent homes?

There are three primary causes of single parent homes: children  
born out of wedlock, divorce, and death.  Death is inevitable; the  
other two causes are not.

For this discussion, children born out of wedlock are those for  
whom their father was practically a biological coincidence.  In  
other words, there never was a marriage or, perhaps, even a  
meaningful relationship between the parents.

In the case of divorce, there has been a family unit.  Most people  
do not intend to divorce their children, just their spouses.  Yet,  
only 7 percent of fathers have joint custody, about 55 percent have  
visitation rights, and 38 percent have neither joint custody nor  
visitation rights.

What can the legislature do?

First, be conscious of the different populations affected by family  
law:  families that were once intact (i.e., married with children)  
and those that never existed (i.e., father was only present at  
conception).  Policy that makes sense for one may not make sense  
for the other.  Statistics that are applicable to one may have  
nothing to do with the other.

The law has a direct impact on fatherlessness in at least two ways:   
custody decisions associated with divorce and administration of  
AFDC.  

Share Care

In divorce, children should not have either parent stripped from  
them as is the case when sole physical custody is "awarded".   
Shared care should be a presumption,  rebuttable by counseled  
parental forfeiture of rights or specific findings of incompetence  
or endangerment of the children.  Shared care (i.e., joint physical  
custody) does not increase conflict between the divorced parents.   
To the contrary, cases of sole custody to the mother experience the  
greatest deterioration in relationships (between the parents) over  
time and joint physical custodians enjoy the most cooperation.

Shared care is not only part of the answer to juvenile crime, it is  
a no-cost way of "enforcing" child support payments.  Parents  
without the rights of child visitation and custody paid regular  
child support 44 percent of the time.  With visitation, the  
percentage jumped to 79.  When the parents shared in the care of  
their children, over 90 percent paid their support.  Critics  
suggest that parents should not be given a reward to be involved  
with their children.  Such a suggestion is based on a prejudice  
that the obligor is a dead beat.  Removing the prejudice, the point  
is that parents that are involved in their children s lives, pay  
their child support.

Identify Fathers

The term dead-beat dads is heard quite a bit.  A study done in  
Tippecanoe County, Indiana concluded that the problem of dead-beat  
parents is almost totally outside the realm of formerly  
self-sufficient intact families.  Consider the following data  
associated with noncustodial parents in that county:

	Regular	Other	Total
	Number of	1,524	1,963	3,487
	Number without an address	8	829	837
	Percent without an address	0.5	42	24
	
Note that less than 1% of the regular noncustodial parents were  
lost while 42% (80 times more) of the others were lost.  There was  
no way of knowing from the available data whether all the  
noncustodial parents for whom the address was known are paying  
child support but it seems reasonable to presume that none of those  
without a known address is paying child support.  Also, notice that  
if only the total percentage (24) were available to us, we could  
have quite a different perception of the problem!

In AFDC cases including single mothers, applicants should be  
required to name the father and the declaration should be confirmed  
with a blood test.

Reduce Divorce

Divorce should not be too easy a solution to ones problems.  It  
should require a one year waiting period that includes marriage  
counseling, family law orientation, mediated determination of the  
disposition of the couple s children, help with household finances  
and notification of their minor children s schools.

Inform Judges

Judges in criminal cases should be made aware of the defendants   
family situations during their formative years.  If they are paying  
attention, this will provide a feedback loop for decisions they  
make in other cases, including those regarding custody.

Enforce Visitation

All parent should be supported for their role in the lives of their  
children.  While Minnesota family law enforces the rights of  
parents to their court-ordered child support, it does not enforce  
the rights of parents that have court-ordered access to their  
children.  Enforcement of visitation and care should be treated as  
seriously as child support collection.  Disputes over child support  
or any other issue should not be reason to withhold parental  
contact without specific finding by a court of law or official  
mediator.

Reduce Pretense and Increase Protection Under the Law
 
Fathers are becoming the targets of false allegations of abuse.   
About 65 percent of abuse reports, in Iowa, were unfounded but  
where divorce was in progress, 80 percent of the allegations were  
unfounded.  Accusations of this sort have been termed the "ultimate  
weapon".  When they are false, libel and probably perjury have been  
committed; the applicable penalties should be invoked automatically  
when occurring in divorce or custody cases.  Currently, the fathers  
are "guilty until proven innocent" with nary a penalty for the  
false accusers.

Provide Equal Access to Government Agencies

Custodial parents can receive life-time representation in court for  
a nominal one-time fee.  This arrangement is apparently based on a  
prejudice that noncustodial parents are a blight for which the  
government should provide relief.  Let s eradicate prejudice.   
Families should have equal rights of access to government services  
(such as Social Services and county attorneys).

What else can the legislature do?

As a relatively young body of law, family law is less than perfect.   
Besides factors included above, other improvements are possible.  

Audit Guidelines

The basis of child support guidelines are in need of audit and  
explanation.  Their current use of income as practically the sole  
determinant of need is erroneous.  Recipients of AFDC and of foster  
care compensation receive a set amount of support for their  
children.  On what basis does the state set AFDC and foster care  
compensation and why is that or a similar basis invalid for  
children of divorce?   Why are non-AFDC recipients of child support  
receiving an amount related to the obligors  incomes (especially as  
the number of years since a divorce grows)?  Consider a scenario in  
which a child support recipient has two children of different  
parentage.  S/he almost certainly receives different amounts from  
each obligor when the standard of living is (almost certainly) the  
same for both children.

Income-based child support is invalid in another way. The obligor  
cannot be presumed to have wanted to be a noncustodial parent:  in  
many cases, each parent is interested in custody but only one is  
"awarded" it.  The desire to "win" the joy of the presence of ones  
children is undeniably linked to a desire to prevent their  
residence with the other parent.  It is insensible to demand child  
support in an amount that supposedly ensures the same standard of  
living that the "winner" did not want the children to enjoy by  
direct relationship with the "loser".  The custodial parent, in  
such situations, is getting the cake and eating it, too.  If the  
issue is really standard of living and ability to provide for the  
children, then place the children with the parent directly able to  
provide it!

The basis for child support guidelines should be costs of child  
care, income of both parents, and the relative time that the  
children spend with each parent while equally considering all  
children of each parent, that child care expenses are greater for  
separated households than for an intact one, and differences in  
cost of living between residences of the obligor and recipient  
(e.g., California versus Arkansas).

Recipients of child support should be willing to account for its  
use.  Child support guidelines should include the expenses assumed  
to be covered.  Is it more than food, shelter, and clothing?

Make Child Support Taxable to the Recipient

Child support obligors pay income tax on the child support they  
pay.  The child support monies are not available to the obligor for  
satisfaction of basic needs much less nonessentials but s/he is  
taxed on it as though s/he were.  Conversely, it is the recipient  
that has the full use of the child support monies:  income that  
directly affects affordability of basic needs and nonessentials.   
Yet the recipient pays no tax on that income.

Parents willing to accept financial support for their children  
should be willing to have it treated as the income it actually is.   
The single-head-of-household tax category provides relief from  
undue taxation on the child support amount.  The common wisdom on  
including child support payments in obligors  income for taxation  
purposes is that, had the obligor not divorced, the children would  
be supported from after-tax dollars.  The invalidity of the common  
wisdom is plain to see:  the obligor is divorced and there is no  
reason for the law to ignore the fact.  Back to the common wisdom,  
it was the custodial parent(s) that supported their children from  
after-tax dollars.  Under this recommendation, it still would be  
so.

Whether taxation of child support monies changes or not, it would  
be beneficial, for statistical purposes, to have child support  
reported on income tax forms, as is currently done for alimony.

Mediate Instead of Litigate

Attorneys can represent their clients as mercenaries.  Settlements  
derived by litigation tend to be win-lose, lose-win propositions.   
Legal fees in family court can easily exceed $5,000; tens of  
thousands of dollars in fees are common.  This redistribution of  
wealth (from plaintiffs to attorneys) is significant and directly  
reduces the discretionary income of a significant portion of the  
population.  District court backlogs and, yes, even the economy  
could improve if attorneys were replaced by trained and impartial  
mediators for certain family law matters.  Mediation has a better  
chance of leading to win-win, or at least fair-fair results.

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Bruce Kaskubar
kaskubar@mayo.edu
Newsgroups: alt.child-support