Dion Aroner, Chair
Human Services Committee
State Capitol
P.O. Box 942849
Sacramento, CA 94249-0001

Re: January 26^th, 1999 hearing concerning "streamlining" of child support collection.

Dear Chairperson Aroner,

I want to first state categorically that it is the position of ANCPR that child support guidelines are too high and have the effect of exiling non-custodial parents from their children. This hurts the children much more than the failure to collect child support. The primary need of most children today is not money, it is the need for parental involvement. The proposed changes to child support order establishment and collection system do not even address the core problem that children of divorced or never-married parents face.

Nevertheless, it is true that child support collection in California, as well as across America, is a national disgrace. This is true not so much for its failure to collect child support, but for the injustices that the system visits upon non-custodial parents. The system is badly in need of drastic reform. However, I am not convinced that the current proposal for "streamlining" that is being discussed in your committee is the best course of action.

First of all, it has been our position that the District Attorney should have no part in family law. District Attorneys are paid to prosecute criminals, and no one is served, least of all our nation’s children, by branding their parents (overwhelmingly their fathers) as criminals. By this logic, we should wholeheartedly support streamlining. However, I am not aware of any review mechanism or other safeguards that are proposed to address the injustices that have manifested under the current system of enforcement by the District Attorney’s office.

Under the system in place now, there have arisen several serious problems:

1. Inaccurate billing and credit reporting.
2. Default judgments resulting in instant and increasing arrears without the obligor ever being notified.
3. Failure of the system to make adjustment in case of errors (Paternity, etc.)

In these three areas are found the balance of the difficulties many non-custodial parents face with respect to child support enforcement. Let’s then look at each of these areas a little closer.

1. Inaccurate billing and credit reporting

One of our members recently received a bill from the Orange County District Attorney for arrears totaling $82,000.⁰⁰. This was done despite his having never missed a payment, and having complete documentation of every single payment going back over eight years. He had to bring action against the District Attorney to correct the problem as there was and is no administrative mechanism that works to correct this kind of mistake. But the problem didn’t stop there. He subsequently applied for a second mortgage and was turned down because his debt to income ration was too high.

Upon investigation, he discovered that on the day before he had been sent the inaccurate bill for $82,000.⁰⁰, the District Attorney’s office had reported this "unpaid child support" to the credit bureau. This was done despite the requirement that the D.A. follow accepted due process.

Obviously, in this case, due process was not followed. Nor was there an acceptable administrative mechanism in place that could efficiently and easily correct the error. This situation would be unacceptable in any civil context. For example, can you imagine if Citicorp, or Visa, or Macys had the ability to simply send a bill to anyone for any amount they saw fit, and then, at the same time, report that "debt" to the credit reporting agencies, effectively destroying that person’s credit rating? Can you imagine these companies justifying such activity with the excuse that times were hard, and if we don’t take any and every step available to us to collect revenue, we could go out of business and all of our employees would lose their jobs and the entire country would suffer?

This scenario seems, on the surface, ludicrous. Yet, that is exactly how the current system justifies itself. This would be bad enough if the context were simply civil. In other words, in the United States, along with most of the world, debtor’s prisons have been outlawed. You cannot be sent to jail for being unable to pay your revolving charge accounts, or for failure to fulfill the financial or other obligations of a contract.

However, child support is not considered a "debt". Instead, it is considered a basic "obligation". This is the justification for turning it into a criminal offense to be in arrears. Under current law, it would have been possible for our member to be arrested on felony charges of failure to pay child support. The "fact" that he had an arrears is prima facie evidence of contempt. If he had moved to another state, he would have been also subject to felony arrest for the federal crime of moving interstate to avoid child support.

As became apparent in a series of articles published in the Los Angeles Times, and in the volume of cases that come to the attention of ANCPR, on a national basis, cases of inaccurate reporting of arrears are rampant in every jurisdiction in America.

What assurances are there that such scenarios as I have just outlined would not occur? What mechanism does the proposal for "streamlining" put forward that would address the injustice of branding a parent a criminal because of the negligence of a staff person in Department of Child Support? Under "streamlining", will administrators be impartial? How will they decide who is telling the truth? To what standard of proof will they be held to? How will parties be notified of actions pending against them? How will mistakes be addressed?

2. Default judgments resulting in instant and increasing arrears without the obligor ever being notified, sometimes for many years.

According to Wayne Doss, head of the Child Support Unit in Los Angeles County, fully 70% of default paternity and child support order establishment cases are by default. Mr. Garcetti, the Los Angeles County District Attorney, says that all rules for due process appertaining to the delivery of service are followed. Of course, he is correct. If a plaintiff in a civil suit is unable, after diligently trying, to locate a defendant for personal service, then they are entitled to use "substitute service". This includes sending a letter by regular mail, and publishing the notice in a local newspaper.

However, times have changed, and child support is no longer strictly a civil matter. Child Support is now both a civil and a criminal matter, and the rules for civil procedure are not adequate. If your agency, simply by administrative fiat, will have the ability to brand a parent a criminal, then you will have some serious constitutional obstacles to overcome.

What assurance can the proponents of streamlining offer to assure non-custodial parents who are obligated to pay child support that proper due process will be followed in establishing child support orders? Are there guidelines for what is acceptable as to the percentage of orders that are established by default?

3. Failure of the system to make adjustment in case of errors (Paternity, etc.)

By statute, there is no retroactive modification of child support. There are no exceptions to this rule. In other words, if a parent has a default judgment against them for child support, and they do not in a "timely fashion" protest it by filing motions in court, then that judgment becomes fixed and not modifiable. The aforementioned articles in the Los Angeles Times, in addition to the television news program "Public Eye", hosted by Bryant Gumbel, uncovered many cases of individuals paying child support even though they had never met the mother of the child, and DNA tests showed conclusively that they were not the father.

In a now unpublished opinion, an Appellate judge criticized Garcetti himself for his attitude in a case like I just outlined that came before the court on appeal. Garcetti’s argument was basically that this was a judgment and the law was clear. The man owed the support and should pay, regardless of the facts. The judge accused Garcetti of losing sight of the basic fundamentals of justice.

It would seem logical to assume that if experienced attorneys like Gil Garcetti have difficulty being sure that due process and simple principles of common decency and justice are observed in the establishment and collection of child support orders, then how can we expect any better performance from an administrative agency headed and staffed by people like Ms. Kuehl, whose bias in this field is well known?

What assurances can the proponents of streamlining offer that mistakes made by zealous administrative clerks can be corrected in a simple and easy to understand way by non-custodial parents? Are there provisions for some kind of review board to take care of these inevitable mistakes? What measures have these proponents introduced to provide for the accountability of this new bureaucracy?

There are many other questions that arise when considering this question. For example:

1. What about the interface with Interstate orders?
2. What about cases where the custodial parent is concealing the children?

It seems to me that the situation is extremely complex, and that more knee-jerk reactionary proposals are only counter-productive. By adding yet another layer of bureaucracy, you will simply add more costs, and I believe that you should look very carefully and critically on any claim that streamlining will save money and collect more child support.

By far the overwhelming reason for non-compliance with child support orders is the inability to pay of the obligor due to illness, injury, and loss of employment. When the obligor has no assets and is unemployed or underemployed, you will never be able to collect money from them, no matter what system is in place. In other words, the poor collection history of the District Attorney’s offices has nothing to do with their inefficiency, but more to do with the fact that the money isn’t there to collect. As the old saying goes: "you can squeeze blood out of a turnip."

Let me add further: No matter what collection system is in place, unless the procedure is perceived as fair by obligor parents, it will never succeed. And let me assure you, the entire system, from the way orders are established, to how the guidelines operate, and to how they are enforced are perceived by a large majority of obligated parents to be biased, arbitrary, unfair and discriminatory. It is our position that these parents are completely correct to feel this way.

Unless the concerns of these parents are taken seriously and addressed comprehensively, you will continue to experience an overall failure of the child support collection system. Your deliberations on this issue are doomed from this perspective since they fail to take into account a fundamental question: that of parental access and parenting time. It is common rhetoric for the proponents of increased child support collection measures that parenting time (visitation) and child support are not related. This is a fools assertion. Every study that has ever been done on this subject shows unequivocally that they are related. Parents with joint custody and open access to their children tend to willingly help their children financially while parents who are cut off from their children by a system that marginalizes their importance in the life of the child eventually drift away. These parents are more likely to fail to make support payments. Until the two-parenting time and child support-are understood to be part of the same matrix of parent child relationships, there will be the failure to improve child support compliance.

Respectfully submitted,

Lowell Jaks, President of ANCPR