It’s Child Support Guidelines that Need Surgery, Not ‘Deadbeat Dads’

By Jeffery M. Leving and Glenn Sacks

Kentucky judge D. Michael "Mickey" Foellger has offered men who are behind on their child support obligations a choice: have a vasectomy or spend 30 days in jail. However, according to a new study of child support, it is Kentucky’s child support guidelines which need surgery, not so-called "deadbeat dads."

The study, "Child Support Guidelines and the Equalization of Living Standards," was conducted by psychology professors Sanford Braver and David Stockburger and will appear in the soon to be released book The Law and Economics of Child Support Payments. Braver and Stockburger conclude that "under current child support guidelines, the majority of custodial parents currently have higher standards of living than their matched noncustodial parents." Of the seven states they studied, Kentucky’s guidelines are among the most inequitable.

In addition to unreasonably high support levels, Kentucky noncustodial fathers also have to contend with a rigid child support system which is often impervious to the economic realities of modern life. Fathers who are laid off, suffer wage cuts, or are injured on the job are often unable to get downward modifications on their child support. In such cases, the amounts owed mount quickly, as do interest and penalties.

Compounding the problem is the fact that the federal Bradley amendment bars judges from retroactively forgiving child support arrearages, even when they determine that the arrearage occurred through no fault of the obligor. As shared parenting advocates Dianna Thompson and Murray Davis of the National Family Justice Association note, "Society holds noncustodial parents, mostly fathers, to an unattainable standard to never become physically or mentally ill, never get disabled, and to never lose a job or get laid off in a poor economy."

The pot of child support gold–which hard-line judges and Attorneys General often insist they’re going to find if we’d just get tough on deadbeats–simply does not exist. Numerous studies, including the largest federally funded study of divorced fathers ever conducted, have shown that unemployment, not willful neglect, is the leading cause of child support noncompliance.

A look at Kentucky’s list of top 10 "Most Wanted Parents" illustrates the point. Far from being a list of well-heeled lawyers, accountants and bankers, only one of the 10 "deadbeats" listed appears to have any education at all, and the most common designation for occupation is "laborer." These men do low wage and often seasonal work, and owe large sums of money which most could never hope to pay off.

Judge Foellger says his "vasectomy or jail" edict is only given to men have fallen $10,000 behind on their child support and who have had four or more children with three or more women. While Foellger is correct in condemning these men’s irresponsible conduct, one might wonder why the mothers of their children receive neither sanction nor condemnation. They too had kids whom they evidently cannot afford to support.

Foellger insists he’s not forcing sterilization on anybody, since the offenders in his court can choose 30 days in jail instead. However, most men who fall behind on child support have led law-abiding lives and legitimately fear for their safety and mental stability if they are incarcerated.

For example, in McCracken County earlier this year a man slit his throat in the courtroom after being sentenced to two years in jail for being $7,000 behind on child support. According to newspaper accounts, the man pleaded to the judge "Don’t put me in jail, I’m going to kill myself" before taking out a razor blade.

By threatening to jail the men, Foellger is in effect impelling them to get sterilized. In fact, Foellger says that all but one of the men offered his "deal" have chosen vasectomy over jail.

This represents a serious human rights violation. Kentucky’s child support guidelines need to be overhauled to ensure that support obligations are in line with obligors’ ability to pay. In addition, the system needs to be more flexible and responsive, so men who are down on their luck don’t become criminalized. And while the public may be legitimately annoyed with these "deadbeats," nobody should be jailed or sterilized for the "crime" of being poor.

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