Child Support Laws: A Historical Overview

Child support laws were first introduced in the United States in 1975 under President Gerald Ford. The laws were set up to ensure that divorced fathers supported their children financially. The system was established when the government created Section IV-D of the Social Security Act. Child support laws are based on the policy that both parents are obliged to financially support their children, even when the children are not living with both parents.

The laws governing child support obligations vary dramatically state-by-state and tribe-by-tribe among Native Americans. Each individual state and federally recognised tribe is responsible for developing its own guidelines for determining child support.

The history of child support in the US

Child support in the US is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or similar relationship. Child maintenance is paid directly or indirectly by an 'obligor' (paying parent) to an 'obligee' (receiving party) for the care and support of children of a relationship that has been terminated. Child support is often arranged as part of a divorce, separation, or dissolution of a civil union and may supplement alimony or spousal support.

Historically, the right of a child to financial support from their parents was regulated by individual US states, territories, and Native American tribes. The effort to criminalize the failure to pay child support began in the late 19th century, with moral condemnation, the desire for stronger punishments, and the need for extradition as primary factors. By the 1910s, nearly every US state had criminal non-support statutes in place.

In 1935, the federal government began providing welfare assistance to impoverished children through the Aid to Families with Dependent Children (AFDC) program. This program was a primary vehicle for economic support to families with children from 1935 to 1996. The child support program collected money from non-custodial parents, most of whom are fathers, whose children relied on AFDC benefits. However, this support did not go directly to the children but was instead used to reimburse the government for AFDC benefits.

In 1975, the US child support collection system was officially launched under President Gerald Ford, a child of divorce whose father failed to pay court-ordered child support. This system aimed to ensure that divorced fathers continued to provide income for their children, with the mother usually gaining physical custody. At this time, there were very few non-marital births, and divorce was one of the greatest predictors that a woman, especially one with children, would fall into poverty.

In 1986, the Bradley Amendment was passed, forbidding the forgiveness of child support debts. This amendment automatically triggers a non-expiring lien whenever child support payments are past due and overrides any state's statute of limitations.

In 1996, President Bill Clinton signed legislation that overhauled America's welfare system and had a profound effect on the collection of child support. The Personal Responsibility Work Opportunity Reconciliation Act (PRWORA) made state guidelines more specific and required stricter enforcement. This legislation also linked child support and welfare, requiring custodial parents receiving public assistance to assign their right to child support to the Department of Welfare.

Today, child support enforcement in the US is the responsibility of the Office of Child Support Services, an office of Administration for Children and Families in the Department of Health and Human Services. While the laws governing child support obligations vary across states and tribes, each state is required to establish and publish guidelines for determining child support, which must be reviewed at least every four years.

Child support laws in the US

The federal government became involved in providing welfare assistance to impoverished children in 1935 through the Aid to Families with Dependent Children (AFDC) programme. The child support programme was then established in 1975 as a federal-state partnership, with the goal of reducing AFDC expenditures. The programme collects money from non-custodial parents, most of whom are fathers, whose children rely on AFDC benefits. However, this support does not go directly to the children; instead, it is used to reimburse the government for AFDC benefits.

In 1986, the Bradley Amendment was passed, which forbade the forgiveness of child support debts. This law automatically triggers a non-expiring lien whenever child support becomes past due and overrides any state's statute of limitations.

In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) was passed, which further emphasised the responsibility of fathers to provide for their children. This Act made it mandatory for custodial parents receiving public assistance to assign their right to child support to the Department of Welfare. It also required states to enforce child support guidelines more carefully and changed the performance measures for states, including penalties for non-compliance.

While the laws vary across the US, child support is typically arranged as part of a divorce, marital separation, annulment, determination of parentage, or dissolution of a civil union. It may supplement alimony or spousal support arrangements. The amount of child support may be set on a case-by-case basis or by a formula estimating the amount thought to be necessary for the child's financial support.

Child support can be ordered to be paid by one parent to another when one is a non-custodial parent, or even when both parents have joint or shared custody. In some cases, a parent with sole custody may be ordered to pay child support to the non-custodial parent to support the children while they are in their care.

The duration of support orders also varies, typically ending when the child reaches the age of majority, which can range from 16 to 23 years old. However, some states have provisions that allow support to continue past this age if the child is enrolled as a full-time, degree-seeking post-secondary student.

Compliance with child support orders is taken very seriously, with consequences for non-payment including wage garnishment, denial or suspension of licenses, fines, property seizure, and even imprisonment in some states.

Child support laws internationally

Child support laws vary across the world, but the majority of nations, including most countries in Europe, North America, and Australia, as well as many in Africa, Asia, and South America, recognize and enforce child-support laws and obligations. Child support laws are based on the principle that both parents are responsible for financially supporting their children, even when they are not living with them.

United States

In the United States, child support laws differ from state to state, and the federal government requires each state to establish and publish guidelines for child support, which are reviewed at least every four years. Child support laws in the US were set up in 1975 to ensure that divorced fathers supported their children. The system has, however, struggled to adapt to the changing social, economic, and demographic landscape of the country. The US also encourages foreign countries to join the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

United Kingdom

The United Kingdom has the Child Support Act in place to enforce child support. The amount of support ordered may be reduced based on the number of nights per week the child spends at the support-giving parent's home.

Canada

Canadian courts set out the financial responsibilities of the "non-custodial" parent in detail, while the "custodial" parent's responsibilities are not mentioned. Canadian laws regarding child support are fairly automatic and "no-fault". Child support is determined by the number of children and the obligor's income.

Australia

Australia's 1975 Family Law Act enforces child support and maintenance. Enforcement of child support orders in Australia is overseen by a national office. Child support recipients are trusted to use the support payments in the best interest of the child and are not required to provide details on specific purchases.

Fiji

Fiji has the Maintenance and Affiliation Act in place to enforce child support.

International Treaties and Conventions

The 1992 United Nations Convention on the Rights of the Child, signed by every member nation of the United Nations, declares that the upbringing and development of children are the common responsibility of both parents and a fundamental human right for children. Other international entities that have recognized the right to child support include the Council of Europe, the European Union, and the Hague Conference. Various international conventions have been created to aid in the interjurisdictional enforcement of maintenance orders, including the 1956 United Nations Convention on the Recovery Abroad of Maintenance and the 2007 Hague Maintenance Convention.

Criticisms of child support laws

Child support laws have faced a number of criticisms since their inception. Here are some of the key areas of criticism:

• Punishment of the Paying Parent: Critics argue that child support payments can be seen as a punishment for the paying parent, as the money is paid to the other parent and is not required to be spent directly on the child. This can create a sense of financial control by the resident parent over the non-resident parent.
• Lack of Accountability: In most jurisdictions, there is no requirement for the receiving parent to account for how child support money is spent. This lack of accountability has led to concerns that the payments may not be used to directly benefit the child.
• Inflexibility: Child support laws have been criticised for not adequately reflecting the extent to which the paying parent supports the child and the expenses they incur. Critics argue that the paying parent's ability to directly provide for their children is reduced, and that they should be allowed to provide for their children with credits against child support or in lieu of payment to the other parent.
• Gender Equality and Reproductive Choice: Child support policies have faced criticism from fathers' rights groups and some feminists, who argue that they violate gender equality and deny reproductive choice to men. They claim that men should have the same right as women to opt out of parental responsibilities early in the pregnancy.
• Victims of Sexual Assault: Child support laws have been criticised for requiring boys and men who are victims of sexual assault to pay child support to their assailants.
• Paternity Fraud: There is criticism that it can be difficult for a man who is mistakenly identified as the father, or who later discovers he is not the biological parent, to be excused from child support obligations and to recover any money already paid.
• Criminal Enforcement: Child support enforcement has been criticised for retaining many criminal enforcement mechanisms (such as incarceration, driver's license suspension, and denial of passport applications) while being branded as part of civil law, thus circumventing the procedural protections of criminal law.

Child support and welfare

Child support laws and obligations are recognised in most countries around the world. In the US, child support is the ongoing obligation for a periodic payment made directly or indirectly by an "obligor" (or paying parent) to an "obligee" (or receiving party) for the financial care and support of children of a relationship or a (possibly terminated) marriage. Child support laws in the US have a long history, with the first federal child support enforcement legislation being passed in 1950. However, the focus of this answer is on the link between child support and welfare.

In the US, child support and welfare are closely intertwined, with the implementation of child support shaped in response to the backlash against inclusive economic support for poor families. The child support program collects money from non-custodial parents, most of whom are fathers, whose children rely on welfare benefits. However, this support does not go directly to the children but is instead used to reimburse the government for welfare payments. This "welfare cost recovery" approach essentially requires poor, non-custodial parents to repay the government for the minimal cash aid their children receive, providing neither parents nor children with economic security. While many states now pass on a portion of these payments to custodial parents and children, the government still kept an estimated $1.38 billion in child support payments in 2021.

Since the 1996 Personal Responsibility and Work Opportunity Reconciliation Act, a major impetus for the collection of child support is the Welfare law. A custodial parent receiving public assistance is required to assign child support to the Department of Welfare to receive assistance. Any payment is then diverted to the welfare program as partial reimbursement. Typically, the amount of child support equals or exceeds the assistance grant, allowing the family to leave the cash assistance program. Other provisions of the Act require and assist the custodial parent to find employment.

While child support is intended to provide financial support for children, critics argue that it can be punitive for the paying parent, particularly in cases where there is no requirement for the receiving parent to account for how the money is spent. In response to this, it has been argued that if a parent is caring for children, they will incur costs, even if they are not required to account for their expenditures. However, this does not address the issue of whether the support payments are used for the benefit of the child.

Another criticism of the current child support system in the US is that it can be difficult for a man who has been mistakenly identified as a child's father or who later discovers he is not the biological parent to be excused from an order to pay child support and recover any money already taken from him.

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