With the economic downturn hitting men harder than women - 9.8 versus 7.5 percent unemployment - and men comprising most noncustodial parents, many dads are finding themselves struggling to make child support payments that were based on incomes they no longer earn.

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Family court judge Patricia Macias of El Paso, Texas, said she considers whether the parent is unemployed or underemployed by choice, is actively seeking another job and can retain a job commensurate with their education and skills. Perhaps the person has assets that can be liquidated, she said.

“I believe that family court judges as a general rule are very empathetic to the economic situation,” said Macias, immediate past president of the National Council of Juvenile and Family Court Judges. “But our primary focus is what the kids need. So that it’s not good enough to say, `Judge, you understand. We’re in hard economic times.’ We all understand but what extra effort are you making now?"

1) It is true that there are fathers who will falsely plead poverty at child support hearings, or conceal income by working under the table, etc. (I would add that the harsh financial demands put on fathers unwittingly encourage this sort of behavior). However, judges habitually err on the side of the custodial parent. Macias, a well-known and influential jurist, seems to think that dads whose incomes have dropped simply aren’t trying hard enough–this in the worst economic recession in modern times. It’s hard to ascribe Macias’ attitude to anything other than gender bias.

2) Demanding that the noncustodial parent “liquidate assets” to pay is wrong–child support is supposed to be based on a person’s income. Demanding that they pay using assets they acquired in previous times while they were at the same time paying their child support is in some ways asking them to double pay. Most fathers do try to help their children as much as they can financially when their income has dropped, and also volunteer to provide child care and other non-monetary benefits to their kids.

3) Macias says that in refusing to adjust child support orders, judges’ “primary focus is what the kids need.” What kids need are fathers who are allowed to remain a meaningful part of their lives–driving the fathers to desperation and jail is tremendously harmful to children, vastly more than the harm created by adjusting child support orders.

4) Fathers & Families’ position is not that fathers who suffer a drop in income should not pay any child support–our position is that their child support should be based on their income. Courts should quickly and accurately adjust obligors’ child support levels when their incomes drop.

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