Rationale

Part of Real World Divorce: web edition | Kindle edition

How did Americans get the systems that we have in place today for adjudicating divorce, custody, and child support disputes? And why are the systems and outcomes so different across a state line? We think that most of the differences can be traced to assumptions that state legislatures either accept or reject. This chapter lists the most common assumptions.

Because Americans want to be married and stay married

An important assumption underlying the typical state's family law system is that Americans want to be married and stay married to the same life partner. Thus, even if it is more profitable to collect child support from an already-married high-income partner than to marry a middle-income partner, Americans will choose the marriage. Even if it is tempting to have sex with an attractive younger partner while collecting alimony and child support from the former spouse, few will succumb to this temptation.

States that reject this assumption limit the profits available from alimony.

Because Money is never a factor in deciding whether or not to have a child

Although anecdotally one may hear a married couple saying "We are waiting until we have saved up and get raises before we have a child," legislators assume that Americans overall do not consider money when deciding whether or not to have a child. If a state's child support guidelines enable a plaintiff to get $100,000/year tax-free by having a baby, nobody will choose to have an additional baby in order to get $1.8 million over 18 years, $2.1 million over 21 years (New York), or $2.3 million over 23 years (Massachusetts).

States that reject this assumption limit the profits available from child support.

Because the typical divorce should be handled via an adversarial litigation process

In all 51 jurisdictions nationwide divorces are lawsuits handled in courts by lawyers. Why not an administrative process like getting a marriage license, determining the correct income tax, etc.? "It is a holdover from the old days when marriage was primarily a property contract," said one lawyer. "You also had 'amatory torts' in those days where you could sue someone for 'alienation of affection' or 'breach of promise to marry'. Read Jane Austen. People didn't want to marry someone that they hated but they also didn't want to marry without financial advantage. We've gotten rid of the amatory torts in most states and with no-fault we've gotten rid of the idea that marriage is a contract but somehow we still have courts handling divorces."

Why wouldn't a legislature just pull the plug on the system? "People who draft laws are attorneys," said one veteran litigator. "They're not philosophers or psychologists. They don't consider the consequences of having children in interminable conflict. They don't consider the effect of parents who have to put their energy into litigation. It is no wonder that the kids don't turn out well; you have compromised human beings raising children of divorce in the U.S." Would it be easy to design a better system, though? "What we have now is the world's stupidest system," she responded. "Nobody who looks at this says 'Oh yes, that's the way it should be done.' Our legal system was designed to preserve wealth for people in Britain. We shouldn't be surprised that the results are ridiculous when applied to families. An adversarial system is the worst possible way of resolving family issues. When you make things win/lose you're setting up a situation where bad behavior will be rewarded in litigation. Add a gender war on top of that and you've got a recipe for unmitigated disaster. The system doesn't work for women, for children, or for fathers."

American lawyers who handle criminal, business, real estate, intellectual property, and other matters had negative views of divorce, custody, and child support laws, and negative views of family courts. Most lawyers who actually practice family law were more positive about America's family courts. "It might seem strange to a layperson," one attorney noted. "for a plaintiff to say that she was verbally abused during her two years of marriage and that's why she needs cash, but that's how the rest of our legal system works. Courts prefer to order money damages rather than 'specific performance.' For example, if I promise to build you a house and don't do it, the court will order me to pay you whatever you lost as a result of my failure to build the house. The court won't order me to build the house. That's why judges are obsessed with ordering child support and alimony but don't care about the fact that the children probably won't have a father when the lawsuit is over. Child support is money damages. A child seeing the father is specific performance."

No state completely rejects this assumption, but Delaware and Pennsylvania are examples of where disputes regarding ownership of children are handled differently than disputes regarding ownership of a house.

Because litigation helps children

People who live in Civil law countries, such as most of Europe, generally don't spend more than $10,000 on legal representation in a divorce lawsuit and $100,000 would be the outer limit for incredibly rich people who'd been married for a long time and had a lot of property to argue about. Due to the formulaic nature of the law and the limited discretion of the judges the outcomes are easy to predict. Americans, by contrast, will pay at least 10 times as much for a litigated divorce, though statistics suggest that outcomes are nearly as predictable (50/50 custody in the shared parenting states; mom becomes the primary parent in the winner-take-all states).

Even where there is an unpredictable outcome, lawyers tell us that the custody decision is typically made at a 30-minute temporary orders hearing a month or two after the lawsuit is filed. At that point only about 10 percent of the ultimate legal fees have been billed, the rest of the legal fees will be consumed without likely significant effect on either the children's schedule or the profitability of the children.

What do Americans get for devoting a much larger percentage of GDP to divorce litigation than do the Europeans? (See the Litigation, Alimony, and Child Support in the U.S. Economy chapter for some numbers) Margaret Brinig, Professor of Law at Notre Dame:

"I think there may be several values.  In the worst cases of domestic violence, attorneys are critical to screening victims (and children) from abusive parents.  Sometimes even without domestic violence attorneys are able to be objective while their clients cannot.  The most valuable attorneys can help clients see beyond their own emotions—hurt, rejection, anger, guilt—to what will be best in the long run for their children.  This isn’t always what is going on, but frequently the agreements lawyers work out actually help their clients work through issues like holidays and the changing needs of their children.  (These are not the $500,000 divorces.  It takes two wealthy spouses who are really dug in to generate fees like that, and typically children in those situations do not fare well.)  Not only do most cases not have lawyers, they also mostly don’t have temporary orders."

Generally the attorneys whom we interviewed felt similarly positive about litigation and the role of attorneys. One reason was that they did not consider their own fees or any alternative as to how that money might have been spent. So they believed that they'd helped in a lot of cases but did not ask "What if the $500,000 spent on both sides' fees had instead been saved for the kids' college fund or inheritance?"

Census 2014 statistics confirm Professor Brinig's suggestion that heavy spending on legal fees to defend a divorce lawsuit is irrational. In Massachusetts, for example, the father has a 97-percent statistical probability of losing custody and becoming a "secondary parent." If child support is $1 million through age 23, the difference between winning and losing is worth about $2 million. So it doesn't make financial sense for the father to spend more than $60,000 to defend the lawsuit (he'll probably be ordered by the judge to pay his plaintiff's fees as well, so actually he can't spend more than about $30,000 on his own lawyer, not enough to get to the first motion in that state). However, both consumers and attorneys reported that the role of secondary parent in the winner-take-all states was unpleasant that it "sucked all the joy out of being a parent." Here's a California father:

"Divorce spoiled my experience of fatherhood. When I saw my son it would remind me of how much money I was paying to his mom and the lawyers, the guys that his mom was cheating on me with during the marriage, and how stupid I was to have gotten married. There was no joy left in the relationship for me and I'm sure that he sensed it. We'd been inseparable when we all lived together, but he stopped visiting when he was a teenager and I seldom see or talk to him today."

Unless we had some way to turn translate the emotional loss of the secondary parent and the emotional gain of the triumphant primary parent into dollar figures, we can't evaluate whether or not the people whose futures are determined by family court judges are acting rationally.

Because litigation is better than parenting presumptions, including a 50/50 presumption

Under most legal systems around the world at various times in history there has been a presumption of how parenting responsibilities are to be allocated following a divorce, e.g., "primary custody to the mother," "primary custody to the father if older than age 9," or "50/50 shared parenting." (see the History of Divorce and International chapters) The current law in most U.S. jurisdictions is distinctive for offering parents the ability to fight over who will be the primary and who will be the secondary parent. The result is converting children's college funds into legal fees. "There is nothing more important to people than their children," said a Texas litigator, "If they have money to spend they will spend it unless their lawyers rein them in."

What do Americans get for devoting a larger slice of GDP to the divorce industry than does any other nation? (As noted in the history chapter, more in fees (not counting alimony or child support transfers) than we spend on books, drilling oil and gas wells, veterinary care, etc.)

What do Americans get? Professor Brinig notes above that "frequently the agreements lawyers work out actually help their clients work through issues like holidays and the changing needs of their children."

Other countries have apparently decided this isn't worth $44 billion per year, but many have gender-based custody presumptions, e.g., "Mom wins" (Switzerland), that would be considered unconstitutional here. Some U.S. states, e.g., Arizona, have gotten out of the "pick a winner parent" business, but a 50/50 shared parenting presumption is the exception among U.S. jurisdictions. Why hasn't it caught on? "The social norms for parenting are quite different nationwide, which may account for some of the state-by-state differences," said Margaret Brinig, Professor of Law at Notre Dame. "The advocates for fathers' rights groups, who’ve largely helped strong shared parenting laws pass, have been more successful in some places than in others, where they’ve run head-on into advocates against domestic violence."

Our interviews confirm Professor Brinig's perspective regarding social norms. In states such as West Virginia, Alabama, Texas, Mississippi and Massachusetts, the "social norm" that judges expect is the mother becomes a "primary parent" following a divorce (or a casual encounter); the father is there to pay the bills. To the extent that the mother has a job, the modification to the 1950s outcome is that the children go into commercial day care, paid for primarily by the father. In Delaware, Arizona, Colorado, Pennsylvania, Missouri, Nevada, and Alaska, on the other hand, the social norm is shared parenting, two adult workers, and minimal payments from one adult to the other. Oftentimes the laws are virtually identical in winner-take-all and shared parenting jurisdictions and the difference is outcome is due only to what is conventional for a judge to write down regarding what he or she found to be in the best interests of children.

We also confirmed Professor Brinig's perspective regarding protection from domestic violence as an argument against shared parenting. Everyone interviewed said that "because domestic violence" was the most common and successful argument in favor of retaining the winner-take-all approach. Nobody, however, could explain exactly how every-other-Friday-to-Sunday-night and Wednesday-dinner visitation results in less potential for post-relationship violence or abuse of children. "The number of exchanges is actually smaller with a week-on, week-off schedule and 100 percent of regular exchanges occur parent-to-school or school-to-parent," said one attorney, "so there is much less potential for conflict. Plus you don't have one parent who is angry about having been devalued as 'secondary.'" Another attorney said "I would love to point out that, in rejecting a week-on/week-off schedule the plaintiff who alleges abuse is asking to personally face her abuser every Wednesday evening and every other Sunday evening. But that's not the kind of thing you can say in court." ["Child Custody, Access, and Parental Responsibility" (Kruk 2008) suggests that, in fact, some loser parents do become violent after being designated losers: "inter-parental conflict increases with court-mandated sole physical custody in cases with no previous violence, as fully half of first-time battering occurs after separation."]

We asked Illinois General Assembly Representative Kelly Burke what groups were influential in shaping laws regarding custody. She cited the bar association (lawyers) and public employees as the most effective groups, followed by domestic violence advocates. Why had fathers' rights groups failed in her state? "The groups that are more child-centric get a better reception," she responded. "Generally fathers' rights groups have one model [shared parenting] that they think is the way and any deviation from that model is not acceptable. It is not a great way to craft legislation."

In November 2014 North Dakota voters were faced with Ballot Measure 6, which would have transformed the state from a "preserve the status quo/pick a primary parent" jurisdiction into an Alaska-style 50/50-shared-parenting-except-with-domestic-violence state. The main opposition to the measure came from a non-profit called "Keeping Kids First." It turned out that 100 percent of the .org's funding was from the attorneys who earn fees when parents fight over who will win custody and the child support profits that come with it. The group's main article noted that "Family law lawyers practice this type of law out of a dedication to the industry and the families involved.  We would love to have agreements in every case." The lawyers behind Keeping Kids First closed with the Biblical story of King Solomon: "the parent that looked out for the child was rewarded, while the self-interested parent was not." Parents proposing 50/50 shared parenting were "self-interested" while a parent seeking sole custody and profitable child support was "looking out of the child." Voters rejected the shared parenting measure in a 62:38 ratio.

Because a child's material lifestyle is more important than access to both parents

From our California chapter:

"The child had nothing to say about being born or the wisdom of a one-night stand. That child should be supported exactly as if those parties had married and stayed married forever." Is he worried about an incentive structure where a one-night stand is more lucrative than going to college and working? "A judge would slap you silly if you pointed out that a plaintiff would be earning more from child support than from attending college and working," Wagner says. "Put yourself in the diaper of the child. Public policy says that he or she has a human right to be raised in the lifestyle of the two parents.  if you don't like that philosophy get the hell out of California." Wagner explains that the current law came about because "California was ranked 45th in nation in late 1980s in the amount of child support obtainable. The legislature was astounded and created the current system. It is public policy that California will always be ranked among the top 5 states [in potential profits from child support]."

A child in a two-parent household has regular access to both parents and also benefits from the income of both parents. Except in states with a statutory 50/50 shared parenting default, there is no recognized right of association between parent and child. However, in practice when both parents are reasonably competent, most judges are reluctant to reduce a child's access to the loser parent below 14 percent of the time (an every-other-weekend schedule). Although winner parents will fight like wildcats to hold onto a primary parent's majority share of the time, and the profitable child support that accompanies that share, loser parents are told that it doesn't matter how much time their former children spend with them. According to psychologists, lawyers, and judges whose income depends on the divorce industry, that matters is the quality of that time.

As noted above, where America's divorce courts focus most of their time, energy, and attention is on securing a child's right to the hypothetical cash that would have been theirs if the parents had either gotten together after a one-night encounter or stayed together after a brief marriage. As you'll see from the state-by-state chapters of this book, nearly all states agree that this cash should be funneled through the winner parent (exception: West Virginia, where child support of more than $2,000 per month may be paid into a trust), but they can't agree on the amount. A California court might order $1 million per year in child support whereas the same child across the state line into Nevada would yield only the $13,000 per year cap.

Whatever the judicially determined amount happens to be, there is a multi-billion-dollar effort funded by taxpayers to collect it (see the Post-Divorce Litigation chapter). This effort is supported by politicians from both parties and at all levels of government. For example, President Barack Obama gave a Father's Day speech on June 15, 2013:

"all our personal successes shine a little less brightly if we fail at family.  That’s what matters most.  When I look back on my life, I won’t be thinking about any particular legislation I passed or policy I promoted.  I’ll be thinking about Michelle, and the journey we’ve been on together.  I’ll be thinking about Sasha’s dance recitals and Malia’s tennis matches – about the conversations we’ve had and the quiet moments we’ve shared."

Did the speech include a suggestion regarding shared parenting schedules so that loser parents could enjoy "conversations" and "quiet moments" with the kids for whom they were paying? No. Obama's policy suggestion was "We should reform our child support laws to get more men working," presumably so that that there would be more men paying what they'd been ordered to pay.

One necessary implication of this focus on cash-to-the-child-via-the-winner-parent is that judges have to force "breadwinner parents" to keep winning bread at least as intensively. Since the abolition of slavery there has been no mechanism in the U.S. legal system to force someone who hasn't been working to go to work. Thus the winner parent is sometimes scolded from the bench for not working, but, as a practical matter, judges who want a child to have the same amount of cash as if the marriage had continued are forced to order a continuation of what had been a voluntary division of labor. "It's pretty much the same as during the marriage," one lawyer said. "The breadwinner parent who used to go back to work after dinner and bedtime with the children now does the same thing, but without seeing the children, except every other weekend."

Is the focus on cash transfers for the benefit of children supported by research? "What Happens When We Randomly Assign Children to Families?" (Sacerdote 2004; National Bureau of Economic Research), a study of Korean children adopted by American parents, suggests not. It turns out that there was a low correlation between the ultimate income of a child and the income of the parents. Adoptees brought into homes with $25,000 per year in income had the same family income, as adults, as adoptees who had grown up in homes with $200,000 per year in income. There is a stronger correlation between the income of biological children and their parents, suggesting that genetics is more important than environment when it comes to career attainment.

The Son also Rises (Clark 2014; Princeton University Press) contains a survey of the academic literature regarding the effect of family wealth and unearned cash transfers on children. In 1832 there was a land lottery in Georgia where winners received a parcel of land roughly equal in value to the median family wealth at the time (i.e., the typical winners ended up with twice as much wealth, about $150,000 extra in today's money). How did the children of the winners do?

They were no more literate than the children of losers. Their occupational status was no higher. Their own children in 1880 (the grandchildren of the 1832 winners) were again no more literate. Worse, they were significantly less likely to be enrolled in school than the grandchildren of the losers. … Wealth is not statistically higher for lottery winners’ children…

Clark also reviews a study of Cherokee Indians who, starting in 1998, received substantial boosts to their income from casino profits. For children who had not been living in poverty, “there was no measurable change in any educational outcomes, including high school graduation rates…” This was despite the fact that a child who graduated high school would immediately become eligible for his or her own $4,000-per-year payment.

These academic results are consistent with what we heard from litigators: the more child support that a child was yielding for a plaintiff, the worse the child turned out as a young adult (attorneys had the opportunity to follow children for 15 or more years due to Post-Divorce Litigation).

Despite the academic and anecdotal evidence suggesting otherwise, the assumption remains common in the U.S. that children will benefit from higher levels of court-ordered money transfers from one parent to the other.

Because higher incomes are a result of good luck, not hard work

"One reason that judges are willing to spend so much more time looking at money than at children," an attorney told us, "is that they assume income disparities are due to good luck or bad luck and therefore their job is to make sure that both parties come out of a divorce with at least an equal standard of living and spending power. Anything else would be unfair since the higher-income or wealthier person didn't do anything to earn it." Other attorneys made similar comments and the rest tended to use language supporting this point of view, e.g., a high-income physician was "fortunate" rather than "hard-working." A plaintiff who dropped out of an undergraduate poetry program is correspondingly "unfortunate" and it would make sense for that person to receive a portion of the defendant physician's income for decades after a divorce or child support trial.

Because the lower-income spouse's career is impaired by marriage and children

An older litigator we interviewed plainly stated, in favor of large alimony and child support orders, "it is a big job taking care of children and women deserve to be paid for it." When two-career couples appear in court, often the justification for post-separation money transfer from the higher-earner to the lower-earning is that the lower-earning spouse's career was impaired either by being married or, if the parties were never married, by having children.

"Raising Kids and Running a Household: How Working Parents Share the Load," Pew Research, November 4, 2015, supplies some data regarding this assumption:

When asked if being a parent has made it harder or easier to advance in their job or career or if it has had no impact, a majority (59%) of working parents say it has not made a difference. Three-in-ten say being a parent has made it harder for them to advance at work, and one-in-ten say being a parent has made it easier. … About four-in-ten working mothers (41%) say [that being a parent interferes with career advancement], compared with two-in-ten working fathers.

Because breadwinner parents are good at working, but incompetent as parents

In the winner-take-all states where primary/second parent outcomes are the norm, litigators spoke of courts wanting to proceed cautiously with allowing a breadwinner parent, typically the father, to care for the children. Thus the rationale for allowing the child only a limited amount of time with the father is that the father has not established a track record of caring for the child. An interviewee summarized the typical court process: "jobless teenagers are sent home from hospitals with two-day-old infants and nobody expresses any doubt that they can care for the child while high net-worth middle-aged divorce lawsuit defendants with multi-decade records of career accomplishment are scrutinized skeptically for their ability to feed a 1-year-old child his or her morning yogurt."

In some cases both parents are presumed incompetent to make decisions for their children. Lawyers spoke with frustration of judges rejected shared parenting agreements by the parties. "Both lawyers were happy, both parents were happy, but we still couldn't get the judge to approve because he just didn't believe in 50/50 parenting," noted one litigator (the fight was about property division and alimony; the children wouldn't have been substantially profitable due to the state's child support cap). The New York Times ran an article on this subject on September 6, 2014 titled "How Divorced Parents Lost Their Rights". The author is Robert Emery, a psychology professor at the University of Virginia who has been the author of research papers on the psychology of divorce. Here are some excerpts:

Judges routinely decide where the children of divorced parents will attend school, worship and receive medical care; judges may even decide whether they play soccer or take piano lessons. Judges do this because the law assumes that divorced parents’ interests in their children, unlike the interests of married parents, are not aligned. …

Surprisingly, even when unmarried parents agree on a plan, judges can overrule it. For example, a judge may not like a complex joint custody schedule. If so, she can decide when the separated parents spend time with their children, even though they agreed otherwise.

As is typical for the psychology industry, Emery ignores the economics of divorce. He writes about the potential for conflict between divorcing or divorced parents without mentioning that $235,000 per year in tax-free child support payments may be the reward for generating and continuing that conflict. (see Massachusetts, for example)

"Any of my defendant clients could be hired by a day care center," one lawyer noted, "and be taking care of 6 infants simultaneously. But if the same guy shows up at the courthouse we'll have all kinds of fact witnesses, experts, and the judge expressing sincere concern about his ability to take care of his own child." A Massachusetts defendant said "Fathers are wallets with legs in the eyes of the court. Don't bother trying to demonstrate competence to your plaintiff. She'll have about one million good reasons to find fault. Walk away and start a new family if you want to be a parent. You'll still have to pay, but at least you won't have to work for an angry greedy plaintiff."

Because child support should enrich the winner parent

Why do state legislatures set things up so that

A core reason may be that the public wants it this way. Although child support lawsuits relating to unmarried parents are almost as common  than divorces (and on track to become more common), voters still think of a child support lawsuit as something that follows a marriage. Arizona citizens surveyed in "Lay intuitions about child support and marital status" (Ellman and Braver; Child and Family Law Quarterly 23(4), 2011) thought that it would be fair to give about 20 percent more in child support to a mother who had been married compared to a mother who had been cohabiting but never married. From a defendant earning $12,000 per month after taxes (about $220,000 per year pre-tax according to the ADP Paycheck Calculator), the survey respondents thought it would be fair to give about $25,572 per year to the mother of a child resulting from a "one-night relationship" and $36,960 to the mother who had been married. In other words, when loser parents complain that they are paying "alimony in disguise," that's exactly what the voters want. [The survey pool was a self-selected group of 356 people summoned for jury duty and the demographic breakdown is given in a 2012 paper by Ellman titled "Failed Law Reform": "Women were 58.3% of our respondents and 24% of them reported having received child support. Twenty-one percent of the men in the survey reported having been ordered to pay child support."]

As discussed in the History of Divorce chapter, in the mid-1980s women's groups began citing statistics that women who'd been victorious in custody lawsuits were suffering a reduction in standard of living compared to when they had been married. "It should be obvious that when the same income is divided into two households rather than one, the result is going to be that neither new household can be as nice as the former single one," said an attorney, "but a lot of newspaper articles were written as though this were a major discovery." Professor Allen told us that "The current child support system was designed in response to a media-driven popular perception that no-fault divorce had feminized poverty. Therefore the system maximizes the amount of money that can be transferred from a man to a woman. It has become more of a Welfare system for women rather than something that is related to children." Some states make the welfare-for-adults aspect of "child" support explicit: "The [Massachusetts 2008] Task Force believes that a child’s economic welfare is inextricably tied to the economic wellbeing of her or his caregivers."

How does the two-household reality get factored into the guideline calculations? R. Mark Rogers, an economist who specializes in this area (see www.guideline economics.com) explains in a 2012 paper, "Income Shares Child Support Guidelines and the Issue of a Second Household Adjustment":

Nearly all of the schedules of Basic Child Support Obligation (the child cost table) were developed by either Policy Studies, Inc. (PSI) or later by the Center for Policy Research, Inc. (CPR). These child cost tables are based on intact family child cost data. That is, the spending patterns on children are based on income available from two-parent households in which only one set of housing costs are incurred.

...

Intact families on average have more discretionary income. Child cost estimates based on intact family data overstate child costs for the actual financial circumstances of the two parents (each paying their own housing costs without the help of a spouse). The noncustodial parent is ordered to pay child support as if the noncustodial parent has help with housing costs. Meanwhile the custodial parent co-mingles the child support payment with general budget money and spends it on the child based on spending habits of single parents with no help with housing costs.

...

[A typical state's guidelines] give the child the right to a higher standard of living than either parent has. A simple example shows the economic inequity of using intact family data for child cost schedules. Assume that the mother and father each earn $4,000 gross income per month. The child is entitled under intact family guidelines to a standard of living based on $8,000 per month. In contrast, each of the parents spends on themselves based on $4,000 gross income per month. In reality, the noncustodial parent is required to pay child support based on an intact family standard, the custodial parent receives child support based on an intact family standard, but the custodial parent only spends the child support as if in a single-parent household. Not all of the child support is spent on the child and the custodial parent receives a sizeable financial windfall from child support based on intact family data.

Child support guideline committees assume that having a child around the house has no value to a parent. "If you accept the reasoning of legislators and judges," one attorney said, "a rational married couple would put each of their children up for adoption a few days after birth [and spend whatever the children would have cost on newer cars, vacations for themselves, etc.]." Professor Allen told us "we treat children like commodities; there is no adjustment for the fact that a parent gets to enjoy the child."

This assumption is made against common sense, i.e., the observation that married couples do keep their children, and the recommendations of academics. For example, Brinig and Allen (American Law and Economics Review, Vol. 2, p. 147, 2000) : "Divorce without custody means giving up a large part of the joy of being a parent--while continuing the financial responsibility for the child." Brinig and Allen (Family Law Quarterly, v. 45(2), Summer 2011, p141): "The theoretically correct way to account for the cost of children is to begin by recognizing that children enter the utility function of their parents (they have value), and then construct an expenditure function. In practice, however, … the alternative used by those designing guidelines is to exclude children as a valuable marital good (i.e., they assume that children are of no value to their parents). When children are assumed to be a cost only, the transfers to the custodial household are increased relative to a more accurate measure. … Not counting custody as a gain in the calculation of child support means that guidelines will tend to 'double count' the award for custody. Within a [state that uses a simple percentage of the loser parent's income], the custodial parent of a wealthy noncustodial parent gets the utility from custody, plus a high cash transfer to fund the child expenses. … Prior to the introduction of support guidelines [mandated by the Federal Family Support Act of 1988], child support awards were considered inappropriately low in many policy circles. However, the lower amounts may well have reflected the courts' awareness that the custodial parent obtained custody over one of the most valuable assets of the marriage: the children."

As noted in the Post-Divorce Litigation chapter, an important rationale for child support guidelines in excess of the government's own estimates of child-rearing costs is that women won't work. If they can't live off their children they will live off the taxpayer via welfare.

"The system was designed to help women," said one attorney, "but because the laws have to written in a gender-neutral fashion they end up hurting successful career women. With a modern-thinking judge a father can get 50/50 or primary custody and mom pays him to have sex with younger women."

Practical implications of enrichment via child support

As noted above, American voters want the system to work so that a parent can live off a child. What are the practical implications of that?

Brinig and Allen (Family Law Quarterly, v. 45(2), Summer 2011, p141): profitable child support has given parents who expect custody a "large" incentive to file divorce lawsuits and found that divorce rates went up as predicted by these incentives.

Loser parents will reduce their efforts on behalf of children in direct proportion to how much money they have to pay winner parents. See "Parental Responses to Child Support Obligations: Causal Evidence from Administrative Data" (Rossin-Slater and Wust; December 8, 2014 American Economics Association Conference), discussed further in the Children, Mothers, and Fathers chapter.

The higher the child support amount, as a proportion of the loser parent's income, the more collection efforts will be required by the courts, prisons, and taxpayer-funded child support enforcement bureaucrats. Even when the money is collected, it turns out that children are worse off overall. "Child Support and Young Children's Development" (Nepomnyaschy, et al, 2012; Social Science Review 86:1), a Rutgers and University of Wisconsin study of children of lower income unmarried parents, found that any kind of court involvement was associated with harm to children

Attorneys and psychologists interviewed say that children of divorce in the winner-take-all states experience an unnatural situation that is virtually unprecedented in human history. "Nearly everyone who interacts with the child of divorce is getting paid to spend time with that child," said one attorney. "Mom is getting paid. The kid's teacher is getting paid. The kid's psychologist is getting paid. The guardian ad litem is getting paid. The judge is getting paid. The only person who spends time with the kid without being paid is the father, who supposedly is the selfish one. Everyone getting paid is presumed to be acting only in the child's best interests."

Because a parent would never try to make money from a child

The situation described by the attorney above is consistent with a child's best interests given the acceptance of one key assumption underlying most states' custody and child support system: a parent would never put personal financial gain ahead of his or her child's interest. For example, a parent who believed that 50/50 shared parenting would be better for a child emotionally would not go to court asking for 67/33 or 100/0 in order to have more money.

"You know that this assumption is false," said one litigator, "because 19th century parents sent their children to work in the mills and stopped only when child labor laws made it illegal."

It turns out that this question has been formally studied by economists. See, for example, "Parental Altruism and Self-Interest: Child Labor Among Late Nineteenth-Century American Families" (Parsons and Goldin 1989; Economic Inquiry 27:4):

Nonaltruistic behavior by parents was pervasive. Even among families with positive assets, child labor was common…

The labor market evidence suggests that parents were willing to accept large reductions in their own wages to secure employment in areas having abundant child labor opportunities. They were implicitly willing to sell the labor services of their children very cheaply, indeed at a rate that suggest they placed very little value on the foregone schooling (and future income) of their children. … Neither did they permit children to retain their earnings for future use. The children were simply worse off…

The empirical results suggest that parents did not have strong (economic) altruistic concerns for their children. … the family provided little in the way of offsetting physical asset transfers (in the form of gifts and bequests) to compensate children for their lost schooling and future earnings. The increased family income was apparently absorbed in higher current family consumption.

Because child support is not profitable, no matter the amount

In November 2014 we interviewed Margaret Bennett, a prominent divorce litigator in the Chicago area and a member of legislative committees redrafting the core Illinois family law statutes and creating a new child support formula. We asked her what she thought of the existing Illinois winner-take-all system in which one parent is designated as primary and receives potentially unlimited amounts of child support. Did that give parents a cash incentive to fight? The answer was "no," a typical perspective among attorneys involved in making laws and guidelines in the winner-take-all states.

We gave Bennett a concrete example of two doctors were splitting up, each with an after-tax income of $200,000. If they had two children the parent who won custody would get $56,000 per year. That would work out to roughly $1 million over the 18-year period of child support eligibility in Illinois. If the parents had a 60/40 time split, the parent with whom the children spent 60 percent of the time would be $2 million wealthier than the parent who took care of the kids 40 percent time. Bennett said that "upper income parents spend a lot on their kids" and that this $56,000 per year annual payment would not cover what the victorious parent was actually spending. Why did parents spend so much on legal fees fighting over custody if not because of the $2 million at stake? Bennett responded that it was primarily because "it is a big status symbol to be the residential custodian."

Because conflict is spontaneous and irrational in origin and will be reduced if we elevate one parent as the winner

The cash difference between shared parenting and sole parenting/visitation may be more than $1 million in many states. Courts in many states advertise that they will deny shared parenting on the basis of finding "conflict" between parties. Judges operate from the assumption that a plaintiff will not start a fight ("conflict") with a defendant in order to gain $1 million; if there is conflict, it arose from some sort of inherent personality conflict that is unrelated to the process or potential rewards of litigation. Here's a Massachusetts plaintiff texting her defendant about an exchange of the child that would ultimately yield $2 million in tax-free cash:

Jessica: She gets picked up at noon if she were to go to school. Drop her off at noon.

Michael: I won't be home till 12:45. I can drop her off at 9:30 if you u want but she will prob sleep late

Jessica: Ok well WTF. School is out at noon.

Jessica: U r fucking a selfish fuck

Jessica: And u r no role model

Jessica: I wont even say it and it is sooooooo vile

Michael: I can drop her off at 1 or u can pick her up earlier. What is ur problem?

Jessica: Fuck u

Jessica: I have had it with u and ur abuse

The 124-page "Report of the Special Joint Committee on Child Custody and Access" (December 1998) from the Canadian parliament is a good example of modern legislative thinking. From a chapter on "Complications of High-Conflict Divorces":

Legal and mental health professionals recognize that divorce and separation are difficult for all parents and children. For the majority of families this is a difficult transition phase. Some families seem to get stuck at this point, however, with one parent or both intent on maintaining such a degree of conflict and tension that it becomes impossible to resolve parenting and property decisions without a great deal of intervention from legal and mental health professionals.

Conflict has arisen spontaneously and irrationally between the person who filed a custody lawsuit and the person who is defending it. The plaintiff has no interest in collecting under Canada's unlimited child support formula; the defendant will be happy to pay. Attorney Carole Curtis speaks for the National Association of Women in the report:

I describe a high-conflict family as a family that falls short of actual violence or assault but for whom, post-separation, a hostile relationship continues. Perhaps a therapist would call that a dysfunctional relationship. There are many separated families who cannot let go of the need to fight with each other one, two, five, and seven years post-separation.

I.e., after the government invites parents to come to court where one will be designated "primary" and the other "secondary" and the difference has a cash value of millions of tax-free dollars, people who strive to win rather than lose are "dysfunctional." Similarly, consider the Massachusetts plaintiff who came back 9 years after a divorce to sue her ex-husband for retroactive alimony and child support on the grounds that her legal and real estate business had not been performing well in comparison to his unforeseen success in a start-up scrap metal business. Legislators would perhaps consider her a "dysfunctional" person who could not "let go of the need to fight." Certainly she had not come down to the courthouse due to the potential for post-divorce cash (she got $500,000, about 10 years of median income in Massachusetts).

Because feminism

Legislators and attorneys told us that women's groups and people identifying themselves as "feminists" were proponents of laws favoring the award of sole custody of children to mothers and more profitable child support guidelines. Is that a recognizably feminist goal? For a woman to be at home with children living off a man's income? Here's how one attorney summarized 50 years of feminist progress: "In the 1960s a father might tell a daughter 'Get pregnant with a rich guy and then marry him' while in the 2010s a mother might tell a daughter 'Get pregnant with a rich guy and then collect child support.'" Why is that superior from the perspective of feminism? A professor of English at Harvard said "Because the woman collecting child support is not subject to the power and control of the man."

We interviewed Janice Fiamengo, a literature professor at the University of Ottawa and a scholar of modern feminism, about the apparent contradiction of feminists promoting stay-at-home motherhood. "It is a contradiction if you define feminism as being about equality and women's autonomy," she responded. "But feminism today can be instead about women having power and getting state support."

Why isn't there a rift in the sisterhood, with women who work full-time expressing resentment that women who met dermatologists in bars are relaxing at home with 2-4X the income? "[Child support profiteering] is kind of an underground economy. Most people just don't know what is possible. We hear a lot from the media about deadbeat dads who don't pay any child support and the poverty of single mothers. The media doesn't cover women who are profiting from the system. The average person assumes that equal shared parenting is the norm and that, in cases where a man is ordered to pay child support, it will be a reasonable amount."

How did we get to the divorce, custody, and child support system that prevails in Canada and in most U.S. states? "This is because of the amazing success of feminism," answered Professor Fiamengo. "The movement has totally changed the sexual mores of society but held onto the basic perceptions that had always advantaged women, e.g., that a woman was purified through motherhood. Feminism did not throw out the foundations of the old order that it pretended to reject."

What's the practical implication of these perceptions? How do they influence the legislators writing the statutes and judges hearing cases? "People still think of the mother as the best parent, the essential parent," said Professor Fiamengo. "And that a woman would never lie to obtain the financial benefits offered by the system. A woman would never try to profit from her child. We think of mothers as moral beings who care only about the welfare of their children. There's a presumption that mothers don't operate out of greed or self-interest despite the fact that all humans operate out of self-interest."

But couldn't it actually be true that women are purified by motherhood? That they wouldn't lie to collect a few million dollars tax-free plus enjoy the company of their children? "Even pretty decent people would be tempted by the rewards handed out," said Professor Fiamengo. "It is easy to justify if you no longer like the guy you had been with."

Why are allegations of domestic violence in divorce court so successful when they are so far in excess of the statistical prevalence of domestic violence? "We have become conditioned to believe that a lot of men are monsters and that women would never lie about it."

A Troubled Marriage: Domestic Violence and the Legal System (2011, NYU Press), by Leigh Goodmark, former Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law, explains that there are three types of feminism: equality, dominance, and governance. It is dominance feminism that has been influential in shaping family law nationwide:

The particular bent of domestic violence law, however, is attributable not to equality feminism, but to the prevailing feminist ideology of the 1980s and 1990s, when many of these laws were enacted: dominance feminism. Dominance feminists, led by law professor Catharine MacKinnon, contended that male domination of women in the sexual sphere was the primary vehicle for women’s continued subordination. MacKinnon argued that “our male-dominated society, aided by male-dominated laws, had constructed women as sexual objects for the use of men.”

To justify the need for a state response, dominance feminists argued that women were victims of patriarchal authority within the home, an authority frequently asserted through the use of physical, psychological, and sexual violence without societal sanction or repercussions. Domestic violence was seen as part of a system of societal norms that granted men dominion over their homes and everything within them, including their families, norms that tacitly gave men the ability, if not the right, to use physical violence to maintain control over their possessions. Deeply held beliefs about the state’s powerlessness to intervene in private family matters enabled men to abuse their wives with impunity. To break a man’s hegemony over his abused spouse, dominance feminists argued, required the state to pierce the veil of privacy, to challenge men’s presumptive authority to “discipline” their wives, and ultimately, to intervene in the life of the family using the power of the legal system to send the message that the continued domination and control of women through abuse would not be permitted by the state. These arguments have been spectacularly persuasive in erecting a criminal and civil legal response to domestic violence. Today, every state has both criminal and civil laws that enable the state to intervene on behalf of women subjected to abuse, provide women subjected to abuse with protection, punish men who abuse their partners, and consider domestic violence in a variety of legal settings.

Rejecting feminist legal theories that advocated for women’s equality with men (equality feminism) or highlighted women’s innate differences from men (cultural feminism), dominance feminism contended that the legal system’s central concern should be remedying women’s subjugation, a subjugation created and reinforced by women’s sexual subordination to men. As dominance feminism’s most prominent theorist, law professor Catharine MacKinnon, explained in her groundbreaking 1982 article, “Feminism, Marxism, Method, and the State: An Agenda for Theory,” “feminism fundamentally identifies sexuality as the primary social sphere of male power … The substantive principle governing the authentic politics of women’s personal lives is pervasive powerlessness to men, expressed and reconstituted daily as sexuality.” Subjugation to men defines what it is to be a woman; the gender female is constructed by woman’s relative sexual powerlessness, through what MacKinnon calls “the eroticization of the dominance and submission.” Male dominance is reinforced through sexual violence and the threat of sexual violence, practiced as rape, sexual assault, sexual harassment, prostitution, pornography, and domestic violence.

Catharine MacKinnon never theorized domestic violence as rigorously as she did rape, pornography, or sexual harassment. She categorized battering as a subset of the sexual victimization of women, writing, “A feminist analysis suggests that assault by a man’s fist is not so different from assault by a penis, not because both are violent but because both are sexual.”

Goodmark's book explains that dominance feminist philosophy leads to the idea that American society prevents women from getting money, except from men, and therefore women can't escape abuse unless they have a more or less automatic right, after asserting abuse, to the house, the children, and a monthly support check.

"You're probably going to see the women's groups do a 180 on alimony in the next 20 years," said one lawyer, "simply because there are enough women who earn more than their husbands that they now have exposure to the laws for which they previously advocated." This topic was covered in "Men Receiving Alimony Want A Little Respect" (Anita Raghavan, April 1, 2008, Wall Street Journal):

The percentage of alimony recipients who are male rose to 3.6% during the five years ending in 2006, up from 2.4%, in the previous five-year period, according to the U.S. Census Bureau.

That percentage is likely to rise as more and more marriages feature a primary earner who is female. In 2005 (the latest year for which data are available), wives outearned their husbands in 33% of all families, up from 28.2% a decade earlier.

But the women who have to pay it are sounding a different chord. "I feel financially raped," says Rhonda Friedman, the former wife of Mr. Castellanos. So distasteful are the monthly payments she makes to him that after filling out the check she used to spit on it. Especially galling, she says, is that she was required to pay a substantial portion of the legal fees he racked up while securing a lucrative divorce agreement.

To Ms. Friedman, that financial history fails to support the argument that she should send thousands a month to her ex-husband, with whom she had no children. "I don't understand why someone becomes your financial responsibility just because you married them," says Ms. Friedman, who earns about $500,000 a year as the supervising producer of the soap opera "The Bold and the Beautiful."

In the meantime, the situation seems to be as summarized by one interviewee: "Feminists say that women can't earn a fair wage during daylight hours. So the Legislature gives them a second cash-compensated job in the bedroom."

Because fathers need to be tapped before taxpayers

Why our heavy investment in judges, prosecutors, prison guards, etc., to collect child support court orders? (see the Post-Divorce Litigation chapter) The investment has grown more or less in lockstep with the U.S. welfare state, according to one lawyer:

The government believes that women will not work if they have any alternative. Women are going to live off their children, but that still leaves open the question of whether it will be the government who pays them to be moms (with welfare checks, food stamps, subsidized housing, free health care, etc.) or the fathers. Whenever the government can choose between its own purse and a citizen's it will be the citizen who pays. In the early days of no-fault [1970s] guys who'd been ordered to hand over 80 percent of their income and could only see the children a few hours per month would say "this isn't worth it" and head to the opposite coast to start a new life. Enough guys had done this that starting in the 1980s and 1990s the federal government built a nationwide system to force fathers to continue participating in the involuntary position of noncustodial parent and payor of all the bills. It would be simpler to bring back slavery.

A New York lawyer stated it more simply: "It is a big job taking care of children and women deserve to be paid for it." If the woman is married, she is being paid by her husband. If she isn't married, the question becomes whether the government will pay her or if the biological father can be held "responsible." The federal government makes no attempt to determine what being "responsible" means, leaving that up to state legislators and judges. Thus if the defendant in Kosow v. Shuman (Massachusetts) had stopped paying child support, the feds would have gone after him to pay $20,020 (a New York order) to his first plaintiff, mother of a 16-year-old girl, and $94,000 per year (a Massachusetts order) to his second plaintiff, mother of a 4-year-old girl. Nobody would have been interested in the question of why two children of the same parent had such different cash values to their respective plaintiffs.

Most of the government's efforts are directed toward suing and imprisoning low-income men. No private plaintiff would hire a lawyer and go to court to sue someone earning $20,000 per year in hopes of getting a cash profit, but taxpayers spend more than $6 billion per year chasing down these guys and additional sums to imprison them (see the Post-Divorce Litigation chapter). What's the rationale for that?

A professor of political science explained that "Democrats want to make sure that women who have children under 18 won't have to work. The government will give them a house, food, health care, and spending money. Bill Clinton's welfare reform put some time limits on the cash, but everything else is guaranteed for life once a woman has a baby. Republicans agree with this, but want the father to pay instead. Politicians from both parties can then agree to share a fantasy world in which fathers on welfare will support mothers on welfare."

An often-cited rationale for the system is that children somehow benefit and that fathers who've been hunted down by the government will be more involved with their biological offspring. "Child Support and Young Children's Development" (Nepomnyaschy, et al, 2012; Social Science Review 86:1), a Rutgers and University of Wisconsin study of children of lower income unmarried parents, found the opposite. Children did better when the father was permitted to provide informal support rather than ordered to provide formal support.

Do the numbers add up? A no-income or low-income mother with custody of children is entitled to housing assistance, Medicaid, food stamps, and a variety of other welfare programs. The total cost to taxpayers, including the social workers and government employees to administer these, was an average of $61,192 per year per welfare household in 2012 (Congressional Research Service report to the U.S. Senate Committee on the Budget). Assuming two children per mother, each from a different father, and New York jurisdiction, each dad would need to earn $180,000 per year to supply a total of $61,200 in annual cash to the mom.

From "One Husband Can’t Save a Low-Income Woman from Poverty—She’ll Need Three or Four" (TIME, January 17, 2014):

"When you say to women, to get out of poverty you should get married, my question to them is how many men you have to marry,” [Barbara Ehrenreich] said. “Marrying a 10-dollar-an-hour man gets you nowhere, so you’d really have to marry three or four."


Looking at the low-income parents who are the current targets of the government's $6+ billion annual efforts is an incomplete analysis. We also need to consider the possibility that, if child support orders were not more lucrative than jobs and if enforcement were not aggressive, middle-income and high-income Americans could increase their use of the welfare system.

Consider a couple comprising a working adult and a non-working adult. They elect to have children without getting married and agree that the stay-at-home adult will have custody of the children. At that point, under current U.S. welfare system policy, the non-working adult would qualify for a free house (maybe with a multi-year waiting list!), free health care, free food, etc., all financed by taxpayers. We've met childless couples in San Francisco in precisely this situation. The artist is entitled to a $5,000-per-month apartment for $500 per month. The software engineer, whose income would disqualify the couple from the subsidy, stays there as a guest. To limit the number of couples like this, when welfare benefits are conditional on having custody of a child, the government requires the recipient to identify the other biological parent. That enables the government to hunt down what might be a middle- or high-income person. In the typical case the money collected is insignificant compared to the $60,000+ per year that the government spends on the average welfare household, but the structure of the system prevents couples where one partner has an upper middle class job from living at taxpayer expense.

Short story: To the extent that Americans are completely rational economic actors, child support needs to be at least as lucrative as the basket of welfare benefits available to a single parent.

Summary

From a typical European's perspective, the typical American state's family law system is insane. How could it be "in a child's best interests" to spend 100 percent of the child's college savings and inheritance on litigation where the result, more than 90 percent of the time, is the same (every other weekend with dad; house and monthly check to mom)? Given acceptance of the above assumptions, however, the American system does make sense.

What about the wildly varying divorce, custody, and child support laws among states? How can they all be considered "justice" when the range of outcomes, given the same people and facts, is so wide? The differences can be explained by differences in which assumptions are accepted by citizens, judges, and legislators in each jurisdiction.

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