Saturday, December 12, 2009

Economy's Impact on Child Support - Close-up

A Follow-up to our "Marketplace" Story
Close-up: Judge Philip Smith

At [FIND] Investigations, a lot of our work as investigators for hire revolves around the custody of kids who are, or are soon to be, caught in the middle of a divorce or separation. We gather intelligence for clients that may ultimately influence how a child custody agreement is settled, including how much the non-residential parent agrees to pay each month. 

Earlier this fall, we started wondering what role the down economy plays in non-residential parents' ability to write that monthly check. Is the recession turning more stand-up dads and moms into so-called "deadbeats"?

New Lexicon: "Modification"

For starters, we turned to Philip Smith, Fourth Circuit Court Judge for Davidson County (Nashville, TN and environs). His duties include hearing cases related to child custody and support, divorce, and adoptions. His answer to our first question: "Have you seen big changes in child support payments because of the economy?" introduces a new term into our lexicon:

"We're seeing a lot more post-divorce modification of support," Judge Smith tells us.

Modification. It's a word we hear many more times as we delve deeper into this issue. Judge Smith explains that a request for modification can mean one of two things: 

1. a request by the "primary residential parent"  to increase the monthly support payment received OR 
2. a request by the "alternate-residential parent" to decrease the amount of support paid monthly. 

So the first thing we learned is that we needed to re-frame the question. The economy isn't necessarily turning a lot of paying parents into "deadbeats." Judge Smith says job losses, plant closings, and decreases in income have all affected parents' ability to pay. These are mostly honest dads and moms who just "need a break," he explains. And his docket is overloaded with these struggling parents, who are asking the court to temporarily alter the child support agreement they made in flusher times.

The question, framed more precisely, should have been, "How does an overloaded court system effectively collect child support during an economic slump?"

It's the Economy, Stupid

Before the recession, Judge Smith saw far fewer modification requests than he did contempt and enforcement cases -- in other words, "deadbeat" (in the traditional sense) dads and moms ducking responsibility by misreporting their income or by claiming they can't find work when it's clear they're not really trying. These days, he says, these folks are in the minority. But they're still out there, clinging to the economy as an excuse. "That's the first thing I hear in every modification proceeding is, you know, 'This economy has affected my ability to earn income.'" says Judge Smith. 

But it's not always easy to tell the honest, struggling parents from what he calls the malingerers: "They weren't working when the support order went down...and now they're claiming they don't have the ability to pay," he says. "They're not looking for other employment, they're living off other people. And the court's not quite as sympathetic with people like that."


He says enforcing the court order to pay in these cases can be tricky, but he has several tools at his disposal. For what he calls "W2 employees," he might apply a "wage assignment," which takes a portion of a parent's paycheck and credits the amount to the back support owed. He can garner up to half of a non-paying parent's unemployment check and can intercept tax refunds.

He might also revoke professional license, a driver's license, a passport, or even hunting and fishing licenses for non-payment. And he has the power to hold non-paying parents in either civil or criminal contempt of court in certain cases. Civil contempt is occasionally used to coerce an uncooperative parent who can pay to do so, by putting him/her in the slammer until he/she complies with the court order.

"They have the keys to the jailhouse in their pocket," says Judge Smith. "I.e. take that money out of savings and pay the support owed."

Criminal contempt, he explains, is purely a punitive measure...and a last resort. In these cases, the burden of proof falls on the petitioner (often the residential parent who is owed back payment) to show that the ex has the ability to pay: "Payroll records, tax returns, or proof that the person is making their mortgage payments, their electric payment, their gas payment, their cable bill, their internet bill, tithing to their church, their automobile payment...and checking account records." says Judge Smith. "Deadbeats" in criminal contempt can even face jail time.

Unfortunately, incarceration doesn't feed the kids in question. And, as Judge Smith points out, for some people who mostly live outside the system and the law, it isn't even much of an incentive.


Although the economy has affected a lot of non-custodial parents' ability to pay child support, one thing has not changed: "The primary residential parent's expenses still continue," Judge Smith points out. "And when we talk about a modification, we're not talking about a termination. Rarely is support terminated."

The takeaway message for custodial and non-custodial parents is this: you have somewhere to turn. For non-residential parents falling behind on support payments, Judge Smith has this advice:

"The best thing that I could tell anyone facing a job loss or some other reason to justify modification is to get in and file your action for modification. That will keep you out of trouble."

He advises struggling parents on both sides of the payment picture to avail themselves of the free services provided by their local Child Support Services office. (Click here to see a listing of Child Support offices in Tennessee.)

For our next installment of this article, we'll take a closer look at the tireless work of Rhonda Spurlock, head litigator for the Child Support Office serving Perry, Williamson, Hickman, and Lewis Counties.

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