Tennessee Appellate Court Sends Message: Second Families Count

By Dianna Thompson and Glenn Sacks

The Tennessee Court of Appeals sent an important message last week--second families count.

The court ruled in a case in which a Memphis father faced an 80% increase in his child support, and the father argued that the expense of raising two children in his current marriage should be considered in figuring how much he should pay to support a third child from a previous relationship. Current child support guidelines prohibit financial considerations for children from second families, except under extreme circumstances. The court found that these guidelines "violate the equal protection guarantees of the federal and state constitutions."

The court’s recognition of the needs of children of second families is long overdue. According to Jan Larson, author of Understanding Stepfamilies, one out of every three Americans is now either a stepchild, stepparent, a stepsibling, or some other member of a stepfamily. US Census Bureau reports that over half of all first marriages eventually end in divorce, and roughly 75 percent of divorced men and women will remarry. Yet our laws, family courts, and public discourse generally ignore second families and their concerns.

For example, some states allow a second wife’s income to be factored in when determining the child support a divorced dad pays to his first wife. Thus second wives’ income is used to support their stepchildren, even in cases where first wives are not working.

Second families are also affected by the way state agencies and family courts mistreat divorced dads. For example, many of the fathers who fall behind on their child support payments do so because they lost their jobs or became disabled. Yet, according to Elaine Sorensen of the Urban Institute, even among fathers who experience income drops of 15% or more, less than one in 20 are able to get courts to reduce their child support obligations. While these fathers were unable to work their arrearages mount, along with interest (10% or more in many states) and penalties, and federal law prohibits these debts from being forgiven retroactively.

Many other fathers are the victims of child support billing errors--which audits and evaluations have shown comprise a third of all arrearages in some states and counties--and it is very difficult to get errant child support agencies to correct their errors, cease collection efforts, and refund mistakenly collected money.

In addition, states often change their child support guidelines, sometimes quickly doubling or even tripling the child support owed.

These factors create a situation in which many divorced dads and their second families are trapped in a spiral of child support debt, interest, and penalties--a spiral which often forces second families to empty their savings, sell their homes, or declare bankruptcy.

Many divorced dads who have second families work overtime or work second jobs to try to meet their first family support obligations and to help their second families. Yet courts often use these fathers’ sacrifices against them by raising their support obligations based on the extra income. Thus fathers are often trapped into working long hours and being away from their families. In addition, often the overtime hours that were available one year are often unavailable the next, thus saddling divorced dads with support levels they cannot meet.

Second families’ other grievances include "move-away moms" (custodial mothers who move their children hundreds or even thousands of miles away from their fathers) and custodial mothers who interfere or deny a divorced dads’ visitation and access to his children. These often make it impossible for men to be fathers to the children of their first marriages, and also necessitate costly legal battles which can drain second families’ financial resources. Second families are often left feeling that they must always maintain a permanent defensive posture, and that they have lost control over their own lives.

The Tennessee court’s ruling is a sign of the increasing awareness that the needs of all children, regardless of birth order, must be considered. What is needed now are new child support guidelines which balance the needs of children from first families with those of second families. After all, what parent would dare to put the needs of one child above the other?

  • Memphis Commercial Appeal