The law of divorce has changed a lot since the first divorce laws were passed in this country. If you are seeking a divorce consult with an experienced American Fork Utah divorce lawyer. Utah divorce law is complex. The lawyer can help you navigate the complex maze of Utah divorce laws.
During the first half of the nineteenth century, contests about political, religious, and economic roles of husbands and wives were prevalent throughout the North and West. Debates about limiting suffrage to male property owners emerged early in the century. Civic responsibility came to be shared among a larger class; property restrictions on male voting waned. As men moved out of the home to work, women gained recognition as teachers of domestic, cultural, and religious values.
In many areas of the country, and in parts of Utah, both spouses acquired new roles. Husbands and fathers, while retaining their position as political governors, became breadwinners. Wives and mothers, while continuing their household chores, became teachers and moral beacons. Faith also became more democratic. Salvation for many became an individual decision to be made rather than an outcome to be imposed by God. Women, deprived of political and economic power, often were attracted to this devotional message and integrated its teachings into their family life. Since salvation required good deeds on earth, maintenance of an observant family became an essential good deed for women. Throughout, however, patriarchal families remained central, as a place for faithful religious observance, a site for inculcation of cultural values, and a training ground for adult exercise of civic responsibility.
Modification of marital property rules throughout the nation during the first decades of the nineteenth century, like changes in political and religious structures, left the essential features of the patriarchal family intact. Upon marriage, common law rules used in much of the nation during the Revolutionary War era gave a husband ownership of almost all of the personal property of his wife as soon as he reduced it to his possession. In addition, he also gained management rights over her real property for the life of the marriage. Upon the birth of a child, control over the wife’s real property was extended to the lifetime of the husband. While early nineteenth-century reforms allowed some deserted women to regain their property or their economic independence and married women’s property acts precluded attachment of a wife’s property by creditors of her husband, men retained control over the central economic features of intact families.
Family formation rituals also changed after the Revolutionary War. Arranged marriages virtually disappeared. Romance emerged as a basis for mate selection. But such “freedom” did not reduce the impetus to marry. Family remained as a solid source of status and cultural location. The attractions of power remained for men; the promise of economic security attracted women; the legitimation of sexual behavior attracted both. In stark contrast with the present day, when images of rock-solid, politically attuned, churchgoing families often seem little more than nostalgic symbols called to duty by desperate politicians, early nineteenth-century adults expected to marry, raise a family, develop a family economy, and stay together ‘til death did they part.
While the headlines focus on child support, the damage to the family far exceeds the monetary hurt. Living with one parent in and of itself places a child at risk for a host of negative experiences. When the child whose parents split up is not even seeing the other parent, the consequences can be more severe (as will be discussed). In neighborhoods with a high rate of father absence, there are higher rates of poverty, public assistance families, and high school dropouts. Fatherlessness (and to a lesser extent, motherlessness) cuts across all races and economic classes.
An experienced American Fork Utah divorce lawyer can assist you in your custody battle. In a custody battle, a frequently litigated change of circumstance is the presence of a live-in companion of the custodial parent. As mentioned earlier, courts approach this matter in very different ways, but the critical issue should always be the effect that the relationship has on the children. In a highly publicized Rhode Island case, a court ordered a custodial parent to refrain from allowing any unrelated males from making overnight visits while the children were in the house. And yet in another state a court ruled that a mother could not be prevented from permitting overnight visits by unrelated males unless there was evidence that it directly affected the welfare of the children. Indeed, there is no single guiding principle for this issue except that courts are supposed to be looking out for the interests of the children rather than using these cases to impose their own morality. But what is “best” for the children is often a subjective consideration, and custody has been lost on the basis of a court’s decision that the children would be better off in the other parent’s household.
Fathers who don’t pay child support
If your ex-spouse is not paying the child support as ordered by the court, speak to an experienced American Fork Utah divorce lawyer. There are many categories of fathers who don’t pay child support. One category outlines what has been termed the “overextended parent.” There are a number of variations of this type of man. The first is a man who was so eager to get out of his marriage or felt so guilty about leaving the marriage that he agreed to undertake an unreasonable level of child support that he was then unable to fulfill. This type of man is often described as relatively immature and naive, with little idea about what it takes to support two households. Once he falls behind on his support payments, it becomes virtually impossible for him to catch up. Thus the delinquency stems from his inability to meet the obligation, and often he eventually gives up even trying.
The second variation largely includes men who start out paying the prescribed amount, but within a couple of years — often after comparing notes with other divorced fathers — they come to believe that their burden exceeds that which others are obliged to pay. This type of man is likely to become angry, but rather than go back to court to seek a modification of his payments, he unilaterally reduces the payment on his own. This type of man does not perceive himself as a delinquent because some payment is still made, but it is inadequate to meet the needs of the children.
A third type of man who becomes an overextended parent is the noncustodial father who remarries, giving rise to a second family. When he has insufficient financial resources to meet the demands of both families, it is invariably his current family that gets taken care of and his noncustodial children that suffer.
As an aside, it has been observed that many men who have sufficient resources are often more diligent about making support payments when they remarry and have a second family. While this may be counter-intuitive, the reason may be that men who remarry are family oriented and consequently more concerned about the welfare of their children.
Finally, the fourth variation of the overextended father is one who becomes ill or unemployed; instead of going to court and having his payments reduced or temporarily suspended, he ignores the situation, engages in denial to avoid dealing with his payment problem, and merely drifts into delinquency without assuming any responsibility for his plight. When the problem inevitably catches up with him, he is the one who feels victimized by the system and adopts a hostile, rather than conciliatory, posture.
The second category of men who fail to comply with their child support obligations are those who seek revenge against their ex-wives. This type of man carries with him many grudges, grievances and unresolved feelings concerning his marriage and family situation. Withholding child support payments is one of his few means of expressing anger. By controlling the money he exercises power and control over his ex-spouse, continuing the hostilities that resulted in the divorce but that apparently were not resolved by it.
Since disagreement over money is a major source of conflict in many marriages, particularly those that fail, withholding money is a way of keeping those past disputes alive. Where there was a high level of conflict between the parents prior to their separation, there is likely to be a high level of unresolved conflict subsequent to the divorce. In such high-conflict cases, withholding child support payments is not an unusual way for feelings of revenge to be expressed. Also, men who feel that they have been unfairly treated by the court may believe that the financial settlement is unjust and that withholding child support payments is warranted.
These men feel discriminated against by the legal system, hostile toward the world, and believe their ex-spouses are responsible for the injustice. Little regard is given to the effect that this vengeful behavior has on the children.
The third category of deadbeat dads are those men who do not make child support payments because of the emotional pain that is wrapped up in the divorce process. There appear to be two types of situations that provide these men with a rationale for withholding child support. The first is the man’s intense emotional reaction to his marriage falling apart and his becoming an absentee parent. His feeling shut out of the family is intensely painful to him, and one way of coping with his emotional distress is by distancing himself from the children.
The very process of establishing distance, which may be both physical and emotional, protects him from pain but also causes him to become alienated from the family. What then emerges is the rationale that since he is no longer part of the family, he need not assume any of the financial responsibility for it. Thus, to cope with the pain of losing custody of his children, he pushes them away and ignores their needs.
The second type of situation within this category occurs when there is a dispute over visitation. Here an otherwise caring father is denied the amount of visitation that he wants with his children and withholds support as a way of forcing his ex-spouse to acquiesce to his visitation requests.
Interestingly, most problems involving denial of visitation stem from conflicts around money and payments of child support. Visitation thus becomes the ball on the economic playing field. Despite the fact that in most cases child support is specifically not conditioned upon a right of visitation, the emotional pain experienced by the noncustodial parent often causes him to seek revenge by hurting the very children with whom he wants to visit. Often this leads to a cycle of nonpayment and denied visitation that is so detrimental to the best interests of the very children who are the subjects of the support and visitation.
The fourth and largest category of deadbeat dads are those fathers who simply behave in an irresponsible manner with respect to their children. This type of man may disappear, not because he is overburdened per se and not because he is angry or vengeful toward the mother of his children. Many simply have no interest in parenting. Their role models have either been extremely poor or nonexistent and, not having themselves been treated well as children, they feel no responsibility to care for their own children. They rarely think about the children and may not even think of themselves as the parent.
For this type of man, children have little meaning in his life and he feels little obligation on their behalf. He certainly would not go out of his way or change his established pattern of behavior, nor would he consider working harder to make more money in order to provide for the children. This category includes the father who participated in bringing a child into the world but who has little or no sense of what it takes to rear that child. This kind of man often feels as though he was trapped by the woman and therefore believes that he is entitled to abdicate responsibility for the child.
Finally, there is a small category of men who are said to be going through what has been termed the “New Life Syndrome.” This type of man is egocentric and self-absorbed. While many deadbeat dads also tend to be self-centered, most seem to have some rationale for their behavior other than merely their own self-interest. This type of deadbeat is different: he needs no justification for his delinquency other than his own desires. He puts himself first; he feels entitled to have his needs met above all others, including his children; and he offers no excuses for his behavior.
A significant factor is the father’s perception of how much control he has in determining how his child support payments are used on behalf of the children. For example, if he believes that his child support payments are being used by his ex-spouse on herself, he is less likely to continue making payments. Some men who feel that they have little say in the children’s upbringing believe it is ample excuse for not meeting financial responsibilities.
When there is joint child custody, a factor often related to compliance with child support obligations is the length of time that the children live with the father. When children stay with the father for periods of weeks or even months at a time (such as on holidays or school vacations), there is a tendency for payments to be withheld or reduced at those times because the father perceives himself as already supporting the children.
Extended visits are frequently viewed by fathers quite differently than shorter stays, because of the length of time and cost involved. Yet this may be inevitable when father and children live geographically distant from one another. The children have to travel far to visit their father, and therefore the visits tend to be less frequent but longer.
Often this changes, however, as children get older. Adolescents become reluctant to leave their friends for extended periods, resulting in their visits with fathers becoming less frequent. The reduced time together is likely to diminish the emotional connection between father and children, and the resulting alienation serves to diminish the father’s commitment to meeting his child support obligations. While this is not universally true, the level of contact between a father and his children is generally considered to be a significant factor in child support payments being made. Men who see their children irregularly are more likely to abdicate their financial responsibilities to them.
The remarriage of either or both spouses often creates another obstacle to continued child support payments. If the mother remarries and the ex-husband continues to maintain hostility against her, he may feel betrayed and angry at her new relationship. Her remarriage gives him an excuse to terminate payments upon the rationale that her new husband will provide for the children and his support is no longer necessary. This is a typical reaction when it is the ex-wife who remarries. When it is the ex-husband who remarries, there seem to be two possible paths. When economic resources are limited, a father is often faced with the difficult task of trying to maintain a good standard of living for his new family while at the same time struggling to keep up with his child support payments, which his new wife will often pressure him to reduce, or even stop. On the other hand, fathers who have an adequate income when they remarry frequently continue to make their child support payments, particularly if they are able to maintain a relationship with the children.
A very important consideration that affects full and timely child support obligations being met is the prior and existing relationship between the children’s mother and father. Factors include: the length of the marriage, the quality of the relationship during the divorce process, and the continuing level of attachment and interaction between the parents. Marriages that lasted a long time appear to result in a greater financial and emotional investment on the part of both parents. This interdependency between the parents may foster or facilitate an enduring attachment between them, which thereby reinforces their commitment to cooperate in the upbringing of their children. By the same token, parents who relate to each other in a relatively non-hostile manner during the divorce process also increase the likelihood that support will be paid. A poor quality of relationship between the ex-spouses often gives rise to the father expressing his negative feelings through noncompliance with support obligations. Thus, to the extent that a good relationship between former spouses can be maintained, it will reinforce the mutual commitment to their children and is likely to lead to greater compliance with child support obligations.
Another element that is likely to influence the continuity of child support is whether the obligation was arrived at by agreement or by court order. An agreement generally gives both parties an opportunity to exercise some control over the amount and frequency of the payments. This reduces the likelihood that the father will feel that he has been treated unjustly by the legal system. A feeling of being victimized often provides an excuse for not fulfilling financial responsibilities to the children.
Perhaps the single most important component is the degree of likelihood that the order will be enforced. Many fathers will not voluntarily pay child support to their ex-wives unless they are confronted by an authority that is willing and able to track them down and employ enforcement mechanisms.
Compliance rates are significantly higher when there is a court-monitored system for collecting child support and where there is a certainty of recourse (e.g., fines and/or jail) for noncompliance. In the absence of a perceived direct relationship between non-payment of child support and punishment, many fathers simply will not pay. The burden of collecting child support still falls primarily upon the mother, whose responsibility for pursuing payments that are in default often seems overwhelming and unmanageable. Many women become discouraged with having to deal with a slow and generally unresponsive legal system, trying to locate the whereabouts of an ex-husband, and finding the time, energy, emotional strength, and financial resources to carry a legal action forward.
The Single Mother Who Doesn’t Receive Support
The burden of collecting child support still falls upon the parent, and how she responds to a deadbeat dad has a significant impact on the likelihood of her obtaining child support payments. Indeed, the attitudes and responses of many custodial mothers contribute to the problem. Those who do not pursue child support in an effective and timely fashion reinforce, to both themselves and the deadbeat dad, that they are either unwilling or unable to stand up for the rights of their children. There are several types of women whose reactions or inaction contributes to the problems they encounter in receiving child support payments.
One type of woman is inappropriately passive and believes that someone will come along and take care of her. These women are often young and may never have had the responsibility of living on their own. When their relationship or marriage ends, they naively believe that the children’s father will continue to provide financial support. It is a rude awakening indeed when he does not, and often for the first time she finds herself on her own. She must assume sole support of her children or figure out a way to get the father to pay his share.
Many such women attempt to engage a lawyer, but soon realize such a route is complicated and expensive. Others find the responsibility for pursuing a legal remedy when payments are in default to be overwhelming and unmanageable. They find that they must deal with a slow and generally unresponsive legal system. But for so many women, finding the time, energy, emotional strength and financial resources to carry the legal action forward is more than they can muster.
Passive women also fail to follow through with the federally funded agencies that are available to provide assistance. While the services provided by these agencies are generally free of charge, they require monitoring and persistence, since the case workers are generally overburdened and the process is typical of large bureaucracies. A woman who relies on federal or state services must be prepared to pursue the case workers on a regular basis and insist that all available avenues of recourse be exhausted.
A second type of woman who may encounter difficulty in working through a bureaucratic government agency is the woman who is anxious and angry. She frequently deals with her frustrations poorly by flooding the child support agency with highly emotional calls and letters and by irritating the case workers who are overwhelmed with cases but who are nonetheless trying to help.
While the long-held maxim that “the squeaky wheel gets the grease” may be true in many instances, this type of woman tends to be so overemotional and overbearing in her efforts to gain assistance that she actually works against herself as she alienates the very people who can help her.
Many such women will abandon their efforts to pursue child support when they realize how difficult and frustrating the process can be.
Finally, there are still other women who have never taken steps to get a child support order. Some are women whose children were born out of wedlock; because they never married they erroneously believe that their children are not entitled to child support. Others fail to secure an award because they feel disgraced, do not want to get involved with the legal system, or would rather rely on their family for support. In the latter group are those who choose not to have any relationship between father and child and decline support in order to prevent such a relationship. This includes women who never even tell the father that he has a child.
And there are single mothers who through their naiveté, passivity, inappropriate behavior, and feeling of lack of entitlement inadvertently contribute to their children’s problems. Most single mothers, however, are deeply concerned about their children’s welfare and would willingly, if not gladly, at least do what is needed in the best interest of the children.
What a Woman Can do to Facilitate Compliance
In recent years state and federal governments have instituted significant new methods for locating delinquent fathers and making them meet their child support obligations. It is clear, however, to anyone who has been involved in child support collection that practical solutions are much more effective than agency or judicial proceedings. Adversarial confrontations drain everyone involved of precious and scarce time, energy, and money. They may even have negative effects on the children by maintaining a high level of post divorce turmoil. Understanding the delinquent father’s motivation can sometimes be helpful in gaining his compliance.
When there is a good relationship between ex-spouses, there tends to be greater compliance with child support payments. Assuming the custodial parent’s goal is to ensure the best interests of the children, and that compliance with child support obligations promotes that goal, the first task is to establish and maintain as good a relationship as possible. This may mean consciously putting aside grudges and lingering feelings of anger toward an exspouse. This is often not easy, since divorce is usually acrimonious and leaves a legacy of bitterness and disappointment. Yet it is this very lingering conflict during the post divorce stage that is often used by the noncustodial father to rationalize his failure to make payments. A woman seeking to ensure compliance with support obligations should attempt to work through or set aside negative or hostile feelings in order to minimize conflict with her ex-husband. This is also likely to improve his relationship with the children, which will also increase the likelihood of paying support.
It is important to reiterate here that an agreement reached voluntarily by both parties is more likely to work than is one that is ordered by the court without participation and agreement of the parties. While it is important to formalize any private agreement by presenting it in court, a mutually negotiated and voluntary agreement is more likely to be honored by the parties. Once again, this requires the parties to be able to set aside negative feelings, focus the negotiation on the welfare of the children rather than continuing pre-divorce conflicts, and to arrive at a child support agreement that both parties feel has tried to accommodate their needs.
While it may be important to settle such practical matters as how and when child support payments will be made (e.g., by check through the mail, by deposit made into a bank account, by electronic funds transfer, etc.), an important concern of fathers is that they be able to exercise a degree of control over their obligation. Sometimes those who feel little control will use this as a rationale for nonpayment. For example, if the children are older and it is important to the father to demonstrate to them that he contributes to their support in a significant way, he might make payments directly to their school, to extracurricular activities, or even purchase necessities himself.
Many noncustodial fathers also feel a loss of control over the decision-making process concerning both how their children will be raised and how the money that they pay will be used. Fathers frequently feel that their money goes into a “black hole” controlled by their ex-wife, who they often suspect uses it for herself and not the children. Whether these fears and suspicions are real or fabricated to avoid payment, often the result is that the children do not receive the support that is due. An instrument that has emerged to deal with this, as well as to negotiate a voluntary agreement, is mediation. Mediators are usually professionals trained in the art of negotiated settlements.
A mediator can be hired by the parties or suggested by the court to devise a workable agreement. The mediator is not aligned with either party, but is engaged to facilitate accord. All parties have an opportunity to express themselves and to voice their needs and concerns. The process is intended to allay fears, deal with defensiveness and rationalization, create problem solving, and consider the needs of all the parties, particularly the best interests of the children. Child support agreements that are voluntarily established through mediation have higher rates of observance than those that are ordered by the court. Women who are concerned about compliance should make every effort to negotiate their own settlement and should be aware of the positive results obtained through mediation.
Another issue closely related to maintaining child support is the degree of emotional connection between a father and his children. If conditions become such that fathers lose their sense of closeness or connectedness with their children, the likelihood of their keeping up their support is diminished. This can occur as time goes by and the father sees less and less of his children because they get older and develop their own relationships. It can also occur if the father or children move far away from one another. It also happens to some men when they remarry and develop new allegiances and responsibilities. Regardless of the reason for the estrangement, the deterioration of the emotional connection between a father and his children significantly affects his commitment to their financial support. It is very important that the father be assisted in maintaining his relationship with his children. Regular visits are important. Having the father participate in decision making around important child issues is crucial. Both reinforce the bond between a father and his children.
Even if regular visitation or paternal participation is not feasible (or perhaps desirable), other steps can be taken to keep the father informed, and thus involved, with his children, albeit on a more superficial level. It is important to make every effort to keep him in touch with the children’s development, their accomplishments, and their needs. Pictures can be sent regularly. The children themselves can send notes and memorabilia related to their interests and accomplishments. Every effort that keeps him in contact with his children will enhance the likelihood of their getting the child support to which they are entitled.
Federal courts typically do not claim jurisdiction over matters of divorce, alimony, or child custody. Implications of this limitation are that custody decisions are not appealed to the U.S. Supreme Court, and general national trends are discernible primarily at the state level of appeal through an examination of case law.
In 1970, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Marriage and Divorce Act. The American Bar Association ratified it in 1974. Consistent with no-fault legislation and the move toward gender equality in matters of divorce, the UMDA adopted the best interest of the child (BIOC) standard for child custody decision making. Five criteria were suggested for use with the BIOC standard: (a) the wishes of the child’s parent or parents as to his/her custody; (b) the wishes of the child as to his/her custodian; (c) the interaction and interrelationship of the child with his/her parent or parents, his/her siblings, and any other person who may significantly affect the child’s best interest; (d) the child’s adjustment to his or her home, school, and community; and (e) the mental and physical health of all individuals involved. Conduct of the proposed custodian that does not affect his/her relationship to the child was not to be considered. The UMDA represented a national commentary on child custody standards, and, since 1970, all 50 states have translated aspects of the BIOC standard into either statutes or case law.
On the international level of policy making, the United States is one of 30 countries that has adopted the Hague Convention on the Civil Aspects of Child Abduction. This convention is used when a child has been wrongfully taken away from his or her place of “habitual residence” against the wishes of the custodial parent. The convention is used by the state and federal courts to return the child to the place of habitual residence where substantive issues of custody can be heard. The Hague Convention cannot be used to evaluate issues of best interest, only the issue of wrongful removal from the habitual residence.
The BIOC standard is a substantive guideline for custody decision making that focuses on the life situation of a particular child and involves the consideration of a list of relevant factors in determining with whom the child should be placed.
Many states require the use of a specified subset of these factors to decide contested custody cases and ask judges to consider all relevant factors without systematic (i.e., across all cases) preference to any one factor. It is the purest application of the BIOC standard and, because of the open-ended consideration of factors, the most complex decision-making standard. It is favored by some because it respects the individual situation of each child, allows the child due process in terms of having a variety of factors considered, and because many of the other proposed rules have been judged as inequitable or unsubstantiated by empirical evidence. However, the unweighted BIOC standard also has been criticized as too individualistic and indeterminant (relying on judges’ personal values and normative beliefs rather than societal ones), resulting in heavy demands on judicial and court resources and increased litigation. Thus, the unweighted BIOC standard seems to have merit when evaluated using some child-based values, but is problematic when evaluated using criteria focusing on logistics and selected societal values and normative role patterns (e.g., children should be placed with the person who provided the most frequent and consistent care).
Consequently, several intermediate rules have been championed, with the differing rules being favored by some and disdained by others. These rules include the tender years doctrine (equated by some with the maternal presumption), the psychological parent preference, the primary caretaker preference, the preference for joint custody, the child wishes rule, and the approximation rule. Potentially, each of these intermediate rules can be used to define the BIOC and, when used as such, carry preferential or presumptive weight in the decision-making process.
Tender Years Presumption
This presumption orders the court to assume that the best interests of the child are met when the child remains with the mother. It surfaced in the 19th century, and the definition of tender years expanded from infancy to the teen years during the 20th century. Determination of maternal fault for the marital breakdown and/or evidence of maternal unfitness were required to overrule the presumption.
During the 1970s, the tender years presumption was deemed unsuitable in determining the BIOC in most states. Political, legal, and social norms highlighted the importance of gender neutrality, and many states decided the tender years presumption violated the Equal Protection Amendment of the Constitution and/or was not good public policy.
Regardless of financial resources, parents have a legal duty during and after marriage to support children below the age of majority (i.e., legal age), including those born outside of wedlock. Post-divorce support of children is intended to maintain the marital standard of living. Amount of support required is based on current needs; therefore, it is modifiable if there has been a change in circumstances that warrants reconsideration.
Utah has laws that hold mothers and fathers equally responsible for child support. Likewise, most recent court decisions have interpreted the Fourteenth Amendment or state equal rights amendments to require gender-neutral support statutes. However, gender neutral statutes that essentially eliminate the father’s primary duty to support have received some criticism. Not only does level of living improve for men and get worse for women after divorce. Because the custodial parent bears the primary responsibility for the care of children, earning potential often must be sacrificed, whereas the noncustodial parent gains earning potential as a result of not having responsibility for the day-to-day care of children. Because the majority of custodial parents are women, and women generally earn less than men, it is the woman who will, proportionately, contribute most to the financial support of children.
It is ironic that, in the face of an established parental duty to support, the early courts looked to the custodial parent’s financial stability rather than considering the noncustodial parent’s duty to support. Today some courts are unwilling to increase child support if the increase would improve the custodial parent’s standard of living along with the child’s. At the same time, even though a court may be reluctant to award enough support for a mother to stay home or obtain excellent care for children, the same court may question whether a working mother should get and/or retain custody.
Modification of Support
There are a number of circumstances under which modifications are made. Examples include a reduction in the income of the supporting parent (however, this is rarely effective even if the supporting parent has been incarcerated or either a formal or informal agreement to a reduction.
Ordinarily only modifications of future obligations are allowed, but when a parent has requested that the obligation be reduced and has not been able to pay at the current level, retroactive modifications have been made. The problem is that some noncustodial parents have made reduced payments expecting that if the custodial parent seeks enforcement of the original support obligation, it would be possible to get a retroactive reduction. Although it is clearly possible in some cases, retroactive reduction of arrearages in child support are prohibited by federal law if the custodial parent receives funds from Aid to Families with Dependent Children.
Termination of Support
There are several reasons why support may be terminated before a child reaches the age of majority. In some states if the supporting parent dies, support is terminated, but in some, death does not result in automatic termination; inheritance and life insurance are used to continue support. Another reason for terminating support is the emancipation of the minor child; that is, the child is accorded legal status before reaching the age of majority. Examples include marriage, entry into military service, leaving the parent’s home and refusing to follow parent’s wishes, or becoming economically independent through employment. Adoption by a parent who replaces the supporting parent is also a possible reason for termination of a support obligation.
It is also possible for support obligations to be terminated if visitation by the supporting, noncustodial parent is denied. It is commonly thought that the reason why men refuse to pay child support is that they are denied opportunity to visit their children. Although studies have found no correlation between child support compliance and complaints about visitation, some courts have interpreted visitation and support decrees as mutually dependent contracts. Indeed, when visitation privileges or joint custody were awarded to fathers, almost 80 percent of mothers were awarded child support, but when neither visitation privileges nor joint custody were awarded to fathers, only about 30 percent of mothers were awarded child support. In cases in which a child has refused to see the custodial parent, courts have terminated support. Also, in extreme cases, such as concealment of the child by the mother, some courts have refused to make fathers pay unpaid support, maintaining that concealment is a waiver of support even though the child or spouse has been abused by the father.
Rules that link child support and visitation and those that do not are inherently biased. When support and visitation are linked, the child and custodial parent’s need for financial support may be subordinated to the noncustodial parent’s need for a relationship with the child. On the other hand, when the rules are not connected, the noncustodial parent’s financial support may be considered more important than the nurturance received from either the custodial or the noncustodial parent. This is a problem because the law is more apt to recognize a tangible contribution such as money than it is to recognize an intangible contribution such as nurturance. Under some partially connecting rules, a noncustodial parent may withhold support payments if the custodial parent interferes with his or her visitation rights, but the custodial parent must have court permission to interfere with the visitation rights of the noncustodial parent even if child support has not been paid. In other words, this partially connecting rule seems to place the noncustodial parent’s right to visit above the child’s right to support.
Child Support Enforcement
The problems most common to child support are those associated with enforcement. Courts have used various civil and criminal remedies to enforce the payment of child support obligations, including contempt of court, income withholding in cases of arrearages, criminal prosecution, income tax refund offsets, guarantees for nonpayment such as bonds and liens, and termination of parental rights. Since the mid-1970s, the federal government has been actively involved in enforcement efforts.
There are two sides to federal involvement in child support enforcement. Both have grown out of efforts to obtain child support from fathers of children who receive AFDC benefits. The Child Support Enforcement Act (Pub. Law No. 93–647) was passed in 1975 and included establishment of state child support agencies, state and federal parent locator services, and the federal Office of Child Support Enforcement operated by the department of Health and Human Services. This law and its amendments put in place a number of strategies for finding fathers and forcing them to pay child support.
On the negative side of federal involvement, mothers of children who receive AFDC must identify the father of the child, a requirement that only affects poor, unmarried mothers. This legislation gives the government an unconstitutional right to intrude in the lives of poor, unmarried mothers. The United States Supreme Court agreed in Shapiro v. Thompson (1969), indicating that the interest of the state in preserving its fiscal resources did not justify an invasion of the constitutional rights of poor women. Later, when the issue was unannounced home visits by social service personnel to insure that there was no father in the home, the Court took a different position. The visits had been objected to as a violation of Fourth Amendment protection from unlawful search (a part of the logic of the right of privacy), but were upheld by the majority opinion of the Court (Wyman v. James, 1971) with dissents from Justices Douglas, Marshall, and Brennan, who pointed out the jeopardy to constitutional rights brought on by acceptance of welfare benefits. To date, this violation of the rights of poor, unmarried mothers to privacy and familial autonomy is a problem that has not been resolved either by statute or Court interpretation. On the positive side, for a mother who wants to find a father and enforce his payment of child support, resources have been improved. This is especially true in cases in which parents no longer live in the same state.
Although all states including Utah now have laws to deal with problems of enforcement of support obligations when one parent moves out of the state, getting these laws in place has been a long and frustrating problem for both parents and courts. Initially, when a parent moved out of the jurisdiction of a court, the laws that were used to exercise jurisdiction were those that had been developed to apply to commercial activities. Some courts have been unwilling to extend a long-arm statute that applied to commercial activities to a child support case because, obviously, they address different issues. In Shaffer the Court would not exercise jurisdiction (i.e., exercise authority to hear the case) over the nonresident parent who had support obligations because the nature of the ties between that parent, the state, and the precedent for litigation (commercial activities) were not related.
In Kulko, the Court agreed that the use of commercial long-arm statutes was not appropriate in child support cases. In this case, the mother moved from New York (the marital domicile of the couple) to California, where she later obtained custody of her two children. She subsequently filed a motion to modify child support. The only contacts the child’s father had with the state of California were (1) a three-day stay years before at the time the couple was married, (2) the act of buying one child’s airline ticket to move in with her mother, and (3) the fact that his children were located in that state. The Supreme Court, citing Shaffer (1977), ruled that this was insufficient to warrant the exercise of jurisdiction over the father by the state of California. The Court not only noted that from these acts alone the defendant would not have foreseen being summoned to a California court in order to defend himself, but also noted that his actions neither amounted to personal benefits derived from activities within the state nor caused an effect in California that amounted to criminal activities. Thus, the Court concluded that it would not be fair to require the father to defend himself in California. The Court further stated that the mother could have sought relief through the Uniform Reciprocal Enforcement of Support Act (URESA), which would not require the father to leave the state of New York and would satisfy her needs.
The URESA and later the Revised URESA (RURESA) were designed as models to provide for interstate enforcement of a child support obligation. The drafters of RURESA sought to reduce the possibility of unnecessary or inappropriate modifications of support decrees by requiring that, among other things, motions to modify be reviewed by the court that delivered the initial support decision. In the Federal Child Support Enforcement Amendments of 1984, Congress required all states to have some form of the RURESA. Although state reciprocal enforcement acts have resulted in improvements over past attempts to use long-arm statutes designed for commercial activities, there are still some problems. In this as well as other parenting issues, courts may find themselves juggling a concern for the best interest of the child with often unacknowledged biases that arise from assumptions about relationships between husbands and wives.
Men face some biases in courts, especially in terms of child custody. Even with the move away from the maternal preference for custody, many courts still view the best interest of children to be with a mother who is “naturally” better able to nurture them. However, considered case by case, stereotyped gender-based expectations for men appear to be balanced by an inclination for male judges to understand and sympathize with the situation of another male—something that is most unlikely to happen in the response of a male judge to a woman. It would be unwise for a single mother seeking custody to count on the maternal preference. For example, if a woman does not work and stays at home where she can maximize her nurturing function, she and her child usually must live in poverty because it is rare for a court to award enough child and spousal support to relieve her of the need to work. On the other hand, if she seeks employment, the bias of the court shifts to favor the male, especially if he has remarried and the child could live with the father and a mother figure. In other words, the maternal presumption is easily overcome or inapplicable if the mother is employed outside the home. For women seeking custody, the maternal preference is balanced by traditional stereotypes and myths about women and poverty.
The law of domestic relations as it relates to child custody and child support has changed significantly throughout the last century. It was developed from state statutory and common law. In creating statutes and deciding cases, legislatures and courts have reviewed other state laws and have considered decisions in other state courts as precedent for their own actions. These efforts have culminated into what is now viewed as a national tradition of the law of domestic relations.
There are still differences between and among jurisdictions, but there are also national trends that cut across jurisdictions.
Although the “best interests of the child” has been adopted in the United States as the standard by which custody determinations are made, remnants of the Roman and English common law view of children as chattel were influential on the development of the law, especially as it relates to child support. For example, the notion that children were property of the father gave the father certain rights and responsibilities, including the right to services and custody of his children, which led to the responsibility or duty to support his children. Child support has not always, however, been considered a legally enforceable duty of the parent or right of the child. Whereas child custody has been considered in terms of the best interests of the child, child support has been considered in terms of contract law or in terms of a community’s interest in keeping citizens from becoming a public charge. Even the child support enforcement program that was initiated in 1950 was motivated primarily out of a desire to keep families from becoming dependents of the state. As would be expected, laws of custody and laws of support although related, affect single parents differently.
Most state statutes give courts considerable discretion in making custody determinations. Many would-be custody battles are settled by agreement of the parties before the case reaches the courtroom, but the court, not the parties, decides whether the agreement is in the child’s best interests. Even if the court accepts an agreement made by divorcing parents, it is free to reopen the case if a change in circumstances warrants reconsideration. This rule may be viewed as one which greatly limits parental power. However, the propensity of courts to rubberstamp these agreements may exacerbate a situation in which one parent has little bargaining power. For example, the parent most emotionally involved with the child (usually the mother) may be willing to accept less child support and other monetary or property awards as a result of threats from the other parent (usually the father) to sue for sole custody.
With extensive judicial discretion, it is difficult to avoid interjecting personal values and opinions in custody and visitation decisions. These decisions require judgments regarding the characteristics of all persons involved in the case as well as consideration of the facts. As a rule, any circumstance relevant to the best interests of the child is admissible—even past behaviors of parents. Adding to the difficulty of courts to be fair, state statutes that enumerate circumstances relevant to the child’s best interests generally do not include the weight to be given to each factor in making the custody determination.
Because of the continuing inclination to view mother-custody as best for children, fathers can be at a disadvantage in obtaining custody and visitation. Two-thirds of fathers who request it rre awarded custody by courts. However at times the courts are seen as being insensitive to noncustodial fathers who wish to continue a relationship with their children and to those fathers who are frustrated in their efforts to relate to their children.
A series of Supreme Court cases in the 1970s and 1980s defined the unwed, or putative, father’s relationship with his child as the basis of a liberty interest. A liberty interest is not exactly a right but it is similar in that it has been granted constitutional protection. This liberty interest is thought to arise from belief in the importance of the family unit; it is primarily a function of relationship rather than biological kinship.
The importance of a putative father’s relationship with his child as compared to the importance of biological kinship is addressed in what is known as the Stanley line of cases: Stanley (1972), Quillion (1978), Caban (1979), and Lehr (1983). In this line of cases, the United States Supreme Court held that (1) biological kinship provides an opportunity for the putative father to develop a relationship with his child; (2) the nature of the relationship between the putative father and his child may give rise to a liberty interest in the relationship; and (3) the liberty interest gives rise to the constitutionally protected right to assert paternity.
Although the unwed father may be denied the right to gain custody, to visit, or to stop an adoption proceeding, especially if the mother is married to another man, an illegitimate child is entitled to support from the biological father. Thus, the state or the mother (whether or not married to another man) may bring an action to obtain support for a child.
Mobility of the Single Custodial Parent
The standards applied to cases involving the relocation of a parent outside the jurisdiction in which a custody decree exists varies by jurisdiction. Requirements in different states range from allowing the custodial parent to move for any reason so long as the noncustodial parent does not prove that the move is adverse to the child’s best interest to requiring the custodial parent to show exceptional circumstances in order to obtain permission to move. In many states, only a challenge by the noncustodial parent will require the custodial parent to provide a reason for moving.
Indeed, many times the custodial parent’s desire/need to move to another state is pitted against the desire to retain custody. This may be particularly true for women because courts tend to be more demanding of sacrifice for the sake of children from mothers and question a woman’s pursuit of a career. In the past, if dissatisfied with a custody decision, a parent could move with a child to another state and bring an action for custody. Although not condoned, “forum shopping,” as this practice has been called, was possible because jurisdiction rules have not been applied in custody cases as they have in other cases. However, parents are finding this practice less viable today.
To address problems of jurisdiction in custody cases, the Uniform Child Custody Jurisdiction Act (UCCJA) was designed as a model to shift the focus from jurisdiction over the parent to the needs of the child. The purposes were to reduce chaos created by interstate jurisdictional competition and to promote cooperation between jurisdictions, as well as to promote the stable environment that most consider to be in a child’s best interests. Through the concept of continuing jurisdiction, the act forbids the modification of a child custody decree in one state when the original decree was issued in another state that still has jurisdiction over the case. The model act is said to have partially laid aside the confusion created by the Halvey case, in which the Supreme Court held that in order to protect the best interests of the child, a court in one state could modify a custody decree from another state. Although most states have adopted the principles in the UCCJA, the issues are complicated, and there are still many problems. For an excellent review of the application of and problems with UCCJA.
Sexual Behavior of Custodial Parents
As has been seen, courts tend to be biased in favor of traditional assumptions about family life and the roles of men and women. Such biases may be best illustrated in disputes involving the sexual behavior of parents. It should be noted at the outset that jeopardy to custody because of a nonmarital sexual relationship is a greater problem for women than for men.
Whether the parent is involved in a nonmarital heterosexual or homosexual relationship, the court may grant custody on the condition that the parent not live with certain persons or even that the parent terminate certain relationships. The court may require that a juvenile authority supervise the parent’s behavior, may require a change of the parent’s conduct, or may prohibit the parent from participating in overnight stays with certain persons—all of which is done in order to insulate the child from behavior considered inappropriate by the court. Although courts at all levels may let their views of appropriate behaviors influence custody decisions, these biases appear to be most prevalent at the trial court level.
Homosexual parents have a more difficult time than heterosexual parents. Where actual harm to the child is presumed, courts will generally prohibit the custodial parent from overnight visitation with lovers. Among other things, this indicates that courts are reluctant to expand the definition of family in visitation and custody disputes to reflect trends in the makeup of the American family. A New York court refused visitation rights to a lesbian ex-partner with the biological mother of the child because the statute in question only applied to biological parents. The biological mother had been artificially inseminated, and the lesbian ex-partner had acted as the child’s parent during the relationship; after the relationship was terminated, she had provided financial support for the child. The New York Court of Appeals affirmed the lower court, stating that the ex-partner had no standing to bring a petition for visitation.
It is common for courts to worry that a homosexual parent will influence a child’s sexual orientation even though the evidence clearly indicates this is not a problem. Courts may be concerned that others will harass a child whose parent is homosexual or may conclude that a homosexual parent is unacceptable because the behavior is in violation of sodomy statutes. The degree of limitation on personal behavior/freedom of parents varies according to the court’s beliefs about and knowledge of sexuality. However now with same sex marriages being legal in Utah and many other states, things are being to change for the better.
Cohabitation is another situation in which presumed sexual behavior can cause difficulty with custody decisions. A disgruntled spouse may use the traditional assumptions of the court to manipulate and control the behavior of the other spouse. For example, in one case, in response to the mother’s motion for modification of custody, the father also filed a petition to modify custody. He did not seek custody of his children, but sought to have the mother cease relations with her boyfriend. The custodial parent (mother) had sought modification of a custody decree in order to establish specific times at which the noncustodial parent (father) could visit their children. Apparently, the father had not only refused to pay the amount of child support stipulated in the divorce decree, he had also crashed his car into the mother’s boyfriend’s car and had threatened the family. The trial court, without specific findings of harm to the children, stated that overnight visitations by the mother’s boyfriend were not conducive to the children’s well-being, but that if the mother were to marry the boyfriend there would be no issue. The Supreme Court of Rhode Island upheld the trial court’s decision to modify the custody provision, which, in effect, restrained the mother from having overnight visits with her boyfriend.
Not only did this court extend the definition of cohabitation to include sexual relations, but also, in effect, it allowed an exspouse to control the sexual behavior of the custodial parent. This decision forced the custodial parent to choose between two constitutional rights, freedom of association and personal privacy from unwarranted governmental intrusion. Although the United States Supreme Court has expressly provided that the government cannot force an individual to choose between two constitutionally guaranteed rights, in custody cases, it is the child’s best interests, not the parents interests, that are the issue.
When religious practices of parents are thought to jeopardize the mental health or physical safety of a child, they can be a determining factor in a custody decision. In one case (Hadeen), the mother’s religious practices included fasting and spanking until the will of a child is broken. The trial court awarded custody to the father, but, on appeal, the court specifically considered whether the religious practices of the mother constituted reasonable likelihood that the child would be impaired. The appellate court reversed and remanded the case for further consideration by the trial court in order to ensure that the trial court had not put too much weight on the religious factor. Justice Dore, dissenting, disagreed with the reversal, stating that the facts of the case indicated that the children were in jeopardy. One compelling incident reported in testimony was of the mother spanking one child for two hours while her other children held the child down.
In addition to noting that religion is a thorny issue in custody disputes, it is important to recognize that the religious interests of parents are more often seen as commensurate with the best interests of children—even when children are directly affected and hurt—than are the relationship interests of parents, even if children are neither directly affected nor hurt. In Hadeen, the court appeared to be more concerned with protecting Mrs. Hadeen’s right to freedom of religious practices than with protecting the best interests of the children. In this case the attention clearly wasn’t focused on the children. Taken together, the case seems to say that it is not really the effect on children but the values of courts that ultimately determine the outcome. It appears to be more acceptable to discipline a child in a manner that constitutes child abuse than to have relationships with members of the same or opposite sex, regardless of whether the nature of the relationship is known by the children or whether the relationship can be shown to be harmful to the children.
Joint custody arrangements have become increasingly popular. Joint legal custody, as opposed to joint physical custody, generally connotes a situation in which the parents share equal responsibilities in child rearing; it is generally not tied to the amount of time that a child is in the presence of one or the other parent. The joint custody arrangement has its roots in concern for the best interests of the child; however, there are still many arguments for and against joint custody. Joint custody is necessarily a complex arrangement, and partly because of the individual circumstances in each case, there is little agreement on the best policies to be followed.
It is interesting that despite the fact that the success of joint custody arrangements is predicated on the willingness of parents to work together, some courts allow joint custody over the objection of a parent. Some courts feel so strongly about the importance of both parents being involved with the child(ren) that spousal attitudes toward each other can influence custody decisions. Insistence that both parents have access to a child may be warranted in most cases, but where there is a history of family violence or harassment, a parent’s objection to an award of joint custody should not prejudice the court. Although there are cases in which a court has ruled that a parent’s good faith objection to joint custody should not prejudice a request for sole custody, one can imagine a situation in which a battered spouse has no specific proof to present to the court in support of a request for sole custody.
Additionally, joint custody arrangements may result in reduction in the allowance or in no allowance for child support. It is not only unfair but also illogical to place equal financial responsibility on parents who are not equivalent in terms of financial resources.
Child custody laws in Utah are complex. Hire the services of an expert – an experienced American Fork Utah divorce lawyer to help you navigate the complex maze of American Fork Utah child custody laws.
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