Deadbeat dads, welfare moms, and Uncle Sam: how the Child Support Recovery Act punishes single-mother families.
Mary's troubles began in 1988, when the couple underwent an acrimonious divorce. The state court awarded Mary custody of the kids, and ordered Jeff to pay $500 a month in child support and keep up with the monthly mortgage. Mary refused to accept alimony payments from Jeff, who nonetheless immediately defied the court's child support order and informed his ex-wife that he "would never give [her] a red cent for child support."(3) Mary and the children lost the family home shortly thereafter and moved to Mary's home state of Missouri. Over the next nine years, they received only one voluntary child support payment from Jeff in the amount of $200.
The Alaska Child Support Enforcement Division tried to garnish Jeff's wages to enforce his child support obligation. Jeff responded by leaving the general contracting industry and performing a series of menial jobs that the state was unable to trace. Mary, unskilled and uneducated, worked two waitressing jobs to try to make ends meet while she attended college. Too proud to accept welfare subsidies, Mary could only afford homes she described as "rat infested, roach infested, [with] sealed windows, no air conditioning."(4)
Finally, in September of 1997, after Mary had earned her college degree and watched her oldest daughter reach adulthood, a federal district judge convicted Jeff for willfully failing to pay child support under the CSRA. Jeff was sentenced to six months in jail and ordered to pay $56,000 in past due child support as restitution to Mary and the children.
Mary and her children have yet to see this money. The district court's judgement survived a lengthy appeals process; the Ninth Circuit affirmed Jeff's conviction on March 11, 1999. But because Jeff was penniless at the time of his conviction, Mary will not receive any restitution while he serves his six-month prison sentence; Jeff cannot work to repay her while imprisoned. If Jeff still refuses to honor his debt upon release, Mary has no reliable means of ensuring that Jeff meets his payments. At least one court has held that she cannot bring a civil action under federal debt collection statutes to enforce the restitution order.(5)
Abraham Brand and Margrethe Stabell married in 1977 and had three children.(6) During the marriage, Abraham, a successful entrepreneur, supported his wife in luxury while she cared for their children. The family lived in a forty-three-room waterfront mansion on Long Island, complete with a private beach, a private tennis court, live-in nannies and housekeepers, a nine-passenger airplane, a Rolls Royce limousine, and a Ferrari.
The couple separated in 1989, and Margrethe and the children moved to Florida. The Florida Circuit Court tried unsuccessfully to incarcerate Abraham on state law grounds for failing to pay over $13,000 of child support during the couple's separation. In 1992, the same court entered an order dissolving the Brands' marriage, and awarded sole custody of their children to Margrethe. The court concluded that Abraham had assets worth $8,295,679 and awarded Margrethe two of Abraham's condominium units and one of his luxury cars. Abraham was ordered to pay a lump sum of $3,935,000 in "support of the wife and to provide security for the minor children in the style to which they have become accustomed"(7) as well as $2,500 per month for child support alone.
Over the next four years, Margrethe received only $10,000 from Abraham. When Margrethe complained to Abraham, he told her that he was in terrible financial trouble and could not afford to meet his payments. Unbeknownst to Margrethe, Abraham was charging thousands of dollars to his American Express card for travel expenses and hiding his assets in accounts bearing his new girlfriend's name to escape detection.
The enormous sum of money that Abraham owed Margrethe and their children attracted the attention of the FBI, who issued a warrant for Abraham's arrest for violation of the CSRA. State police discovered the warrant during a routine traffic violation in 1996, and he was subsequently convicted under the CSRA of willfully failing to pay the lump sum and monthly support obligations. The court sentenced him to time already served and ordered him to pay restitution to the tune of over $4 million.
Like Mary Ballek, Margrethe had to wait out a lengthy appeals process, and like Mary Ballek, the ultimate result was affirmation of her husband's conviction and the restitution order in its entirety. However, Margrethe is far more likely to receive the past due child support than Mary. Margrethe's ex-husband doesn't need to work to satisfy the restitution order. He simply has to untangle his substantial assets.
The stories of Mary Ballek and Margrethe Stabell have much in common: Both women relied on their husbands for financial support while they cared for their children; neither had the education or skills at the time of divorce to sustain their previous lifestyle independently; both had husbands who refused to pay child support; and both appealed unsuccessfully to state judicial and administrative authorities to collect past due child support obligations. Most important for the purposes of this note is that the CSRA defines both women as `victims' of `deadbeat dads.' There is, however, one critical difference: For Margrethe, the court's order that Abraham untangle his assets and pay restitution will result in the maintenance of Margrethe's luxurious lifestyle--she was by no means impoverished by Abraham's failure to pay child support. In contrast, Mary is one of the few custodial parents vindicated under the CSRA after being impoverished by their ex-spouse's failure to pay child support. But for Mary, the prosecution of Jeff was at best a symbolic vindication of her suffering. Mary's four children will be well past the age of majority before Jeff is likely to pay back even a portion of the restitution order. This difference lays the foundation for the following query: Why is a federal statute designed to shrink the number of single-parent households on welfare, thereby enhancing the emotional and financial well-being of single-mother families, so ineffectual in reaching this goal?
This note examines the plight of single-mother households dependent on child support in light of the recent nationwide trend toward federal criminal prosecution of child support evaders. Part I examines the development of the law of parental child support, with a focus on the changing normative goals underlying the duty of parental support in different historical contexts. Part II details the origins of the CSRA, including a discussion of the sociological data that Congress relied upon to connect the incidence of nonpayment of child support with the number of single-parent households on welfare. It positions the enactment of the CSRA, and the Fathers Count Act (FCA), an analogous piece of proposed legislation, in the contemporaneous movement to reform the country's welfare system. Part III uses sociological data and input from different players in the criminal justice system to uncover the disconnect between the number and kinds of men and women who could be convicted under the CSRA and the narrow band of men who have been convicted under the CSRA.
Part IV discusses some of the analytical difficulties presented by the federal criminal enforcement of state-ordered child support obligations. It analyzes the Equal Protection interests of noncustodial fathers, and the privacy rights and practical needs of custodial mothers and their children. Part V then attempts to reconcile some of the paradoxes inherent in the CSRA and reflect them against the broader context of family values talk. In particular, it examines the conflicting goals of draconian punishment and the repayment of child support obligations. It also discusses the reasons for the disconnect between the law in theory and the law as applied, and why stricter enforcement of the CSRA is unlikely to effectuate Congress' goal of reducing the number of single-mother households on welfare. These findings lead to the normative conclusion that instead of assisting financially strapped single-mother households, the CSRA punishes men and women, and low-income women in particular, for making procreative choices outside the confines of the nuclear family.
I. HISTORY OF STATE AND FEDERAL INVOLVEMENT IN CHILD SUPPORT ENFORCEMENT
A. The Duty to Pay Child Support
Beginning in the nineteenth century, state courts acknowledged that parents have a legally enforceable duty to support their children.(8) This acknowledgement was limited, however. Courts enforced the obligation to pay prospective child support only to the extent that fathers were ensured their independence and financial integrity.(9) Neither the mother's independence and financial integrity nor the child's interest in maintaining the standard of living he or she had enjoyed during the parents' marriage entered into the court's calculus when awarding future child support payments. For example, in 1819, a New York judge awarded a custodial mother an extremely low allowance for child support because "some weight ought to be attached to the consideration, that the father may be greatly afflicted by the loss of the presence and guardianship of his son, and the mother will have the most persuasive motives to industry and economy, by the duty and blessing of such a charge."(10)
Because nineteenth-century courts were keen on protecting the financial interests of noncustodial fathers and enjoyed great discretion in setting paternal support standards, judges often gave downward adjustments on the ground that noncustodial fathers did not have a legal duty to support children whose income and labor they no longer enjoyed.(11) These rights-based arguments broke down, however, when the mother could demonstrate that it was the father's fault that the marriage dissolved, or where the children were likely to become wards of the state without the father's financial subsidy.(12)
B. Federal Regulation of State Child Support Enforcement Systems
1. Aid to Families with Dependent Children (AFDC).
Twentieth-century state courts continued the nineteenth-century legacy of safeguarding fathers' rights in child support cases. For example, even today few states have self-starting child support payment mechanisms; rather, custodial parents bear the burden of initiating enforcement proceedings. Overburdened state agencies may only help mothers get into court, where they face an adversarial, expensive, and lengthy enforcement process.(13)
Despite these similarities, the emergence of the welfare model of governance in the early twentieth-century prompted Congress to act as a surrogate father for needy children when it created Aid to Families with Dependent Children (AFDC) under Title IV-A of the Social Security Act.(14) Currently, the Act authorizes the distribution of federal cash grants, which state governments use as income support for needy single-parent families. AFDC was originally intended to provide federal money to children with a deceased or disabled father or to indigent mothers and children in the relatively rare instance that the father abandoned his family.(15) AFDC has since evolved into this country's largest welfare fund for children whose father lives outside of the home by reason of divorce, separation or abandonment but does not support his family financially even when he has been ordered by a court to do so. Accordingly, state child support enforcement efforts have historically been linked to the administration of AFDC.(16)
2. The Uniform Reciprocal Enforcement of Support Act (URESA).
Over the course of the twentieth century, state enforcement mechanisms proved particularly ineffectual for custodial parents whose ex-spouse or partner lived outside the state that issued the support order. Custodial parents could always register a support order in a state court that had jurisdiction over the absent parent.(17) This method of interstate enforcement was unavailable, however, to poor parents who were unable to pay the requisite attorney's fees and filing costs. In 1950, the National Conference of Commissioners on Uniform State Laws took a stab at child support enforcement reform when it adopted the Uniform Reciprocal Enforcement of Support Act (URESA).(18) URESA was intended to streamline child support enforcement procedures, thereby enabling all custodial parents to obtain child support across state lines. Almost every state enacted a form of URESA by 1955, but URESA proved ineffectual because of its interplay with AFDC. Specifically, state administrators focused almost exclusively on collecting child support for their own underprivileged citizens because AFDC allowed states to recoup welfare payments from child support evaders once they began to repay their support obligations.(19)
3. Title IV-D of the Social Security Act.
Title IV-D, Congress' 1975 amendment to the Social Security Act, reflected the federal government's growing concern that the nonpayment of child support was resulting in increased welfare dependency. Title IV-D also facilitates the state and federal recoupment of welfare expenditures by requiring the custodial mother to assign her rights to child support payments to the state as a condition of receiving AFDC.(20) Under Title IV-D, state governments that participate in AFDC must provide free or heavily subsidized child support services to custodial parents. These services include locating absent parents, establishing paternity, and obtaining, modifying, and enforcing child support orders.(21) Title IV-D also facilitates the state and federal recoupment of welfare expenditures by requiring the custodial mother to assign her rights to child support payments to the state as a condition of AFDC.(22) When the state enforcement agency ultimately collects the child support payments from the obligor parent, the agency funnels that money directly to state and local governments to reimburse them for their initial AFDC payments.(23)
Much like URESA, Title IV-D has shown itself to be an ineffectual mechanism for enforcing child support orders against absent parents. State child support agencies lack the funding and the staff needed to handle the ever-increasing volume of Title IV-D cases that confront them.(24) A 1985 study conducted by the Office of Child Support Enforcement (OCSE) demonstrated that interstate child support cases suffered the most neglect under Title IV-D, due to outdated enforcement procedures and the states' financial incentives to enforce only intrastate cases.(25)
Despite these early regulatory efforts by the federal government, the gap between the amount of child support owed and the amount collected continued to grow; it was estimated to be about $27 billion in 1992, one-third of which was attributed to interstate support cases.(26) Meanwhile, AFDC expenditures increased from $5 billion in 1975 to $12.7 billion in 1992 on the federal level alone.(27) A 1992 study issued by the U.S. General Accounting Office (GAO) concluded that the increasing costs of federal welfare programs such as AFDC were linked inextricably to the amount of unpaid child support.(28)
II. THE GLOVES ARE OFF: THE FEDERAL GOVERNMENT DIRECTLY ENFORCES CHILD SUPPORT THROUGH THE CSRA
In November 1992, George Bush signed the Child Support Recovery Act into law.(29) The Act addresses the problem of interstate child support enforcement by imposing criminal sanctions on noncustodial parents who willfully fail to pay past due child support obligations owed to a child residing in another state.(30) The enactment of the CSRA marks a significant normative shift in the federal government's conceptualization of and involvement in child support enforcement. State courts were historically accorded broad discretion in apportioning child support awards. State courts directed this discretion towards bolstering the financial independence of fathers, subject only to sporadic federal regulation and the specter of the federal government's growing role as a replacement breadwinner for single-mother families. Under the CSRA, however, the federal government demands that biological fathers sacrifice their individual interests and step forward to support their needy children, simultaneously decrying its own obligation to continue to provide financial subsidies for single-mother families under a federal welfare regime.(31)
A. Legislative History of the CSRA: Linking Welfare Dependency to Child Support Evasion
1. The drafters' intent.
Charles Schumer, a Democratic representative in the House of Representatives at the time of the CSRA's enactment, Republican Representative Henry Hyde, and Richard Shelby, a Republican in the Senate, were instrumental in garnering strong bipartisan support for the CSRA.(32) They relied on statistics in the GAO studies, which found that child support was received in only 43 percent of interstate cases, to justify both the existence and the draconian bent of the proposed statute.(33) For example, Senator Shelby argued that by focusing on the punishment of hard-core offenders who would flee their home state to avoid paying child support, the CSRA would deter all noncustodial parents from shirking their obligations.(34)
Senator Shelby articulated two social benefits that he believed would derive from the CSRA. First, needy children would benefit financially and emotionally from receiving child support from their noncustodial parent in lieu of the government.(35) Second, the regular payment of child support awards would prevent single-mother families from having to rely on taxpayer-subsidized federal assistance programs like AFDC and food stamps.(36) Senator Shelby emphasized that because divorce rates are continually increasing, the number of female-headed households dependent on welfare will also continue to rise. Noting that the average income of a female-headed household bereft of child support is less than $14,000 per year, Senator Shelby contended that, more and more women must turn to government assistance to make ends meet.
2. Opposition to the CSRA.
The drafters of the CSRA enjoyed overwhelming bipartisan support. The one instance of mobilized opposition to the CSRA came from a fathers' rights group called Wisconsin Fathers for Equal Justice.(37) William Fetzner, testifying on behalf of Wisconsin Fathers, argued that punishing male child-support evaders is a mistake because it violates the rights of fathers. Fetzner suggested that instead of threatening fines and criminal punishment, courts should enforce fathers' visitation rights with greater consistency. Enforcing visitation rights would allow the father to strengthen his emotional bond with his child, thereby making the father want to pay child support.(38)
Fetzner also questioned the CSRA's underlying assumption that noncompliance with child support orders directly causes the phenomenon of poverty-stricken single-mother families. To this end, Fetzner pointed out that over 50 percent of children on welfare have fathers who never married, are young, and are lacking in education and marketable skills. In these cases, even if the absent father pays child support and the mother works full time, a large proportion of single-mother families still has to rely on government assistance to make ends meet.(39) Significantly, no women's rights advocates appeared at the committee hearings to contest the CSRA's potential hazards, such as the risks of reattaching women and children to potentially abusive ex-partners.(40)
B. Subsequent Caselaw: Conflicting Interpretations of the CSRA
1. The Commerce Clause.
There have been relatively few legal challenges to the CSRA, which is hardly surprising given that as of February 1999, federal enforcement measures had resulted in only 105 criminal convictions.(41) Some of these decisions would facilitate the conviction of noncustodial parents from all walks of life, whereas others seem to frustrate the CSRA's core objective of collecting past due support awards. The argument most frequently adopted by petitioners challenging their convictions is that Congress exceeded the scope of the Commerce Clause when it enacted the CSRA. Child support enforcement is not "commercial," these petitioners have argued, and does not "substantially affect" interstate commerce.(42) Eight circuit courts have upheld the CSRA,(43) however, likening the obligation to pay child support interstate to Chief Justice Marshall's definition of "Commerce" in Gibbons v. Ogden.(44)
2. Criminal intent: Who can willfully fail to pay child support?
Jeff Ballek appealed his conviction under the CSRA, complaining that the district court's judgment violated the Thirteenth Amendment's prohibition against imprisonment for debt. Specifically, he argued that he could not "willfully fail to pay child support" because he simply didn't have any money to give his children.(45) The Ninth Circuit affirmed the district court's decision, however, holding that the trial judge's construction of "willfullness" was in keeping with the CSRA's legislative history.(46) The Ballek court emphasized that the phrase "willfully fails to pay" was borrowed from federal criminal tax statutes, and instructed that:
[T]he Government must establish beyond a reasonable doubt that at the time the payment was due the [obligor parent] possessed sufficient funds to enable him to meet his obligation or that the lack of sufficient funds on such date was created by (or was the result of) a voluntary and intentional act without justification in view of all the financial circumstances of the [obligor parent].(47)
Under this construction of criminal intent, the court found that Jeff had "willfully" failed to pay child support by repeatedly choosing menial jobs after the divorce even though he was able to perform skilled carpentry work that would have paid him enough to meet his child support payments. Imprisonment for failure to pay child support is not tantamount to a debtor's prison, the Ballek court held, because the debt is a moral one owed to society as well as to one's children. The court analogized child support to other types of societal debts that have been historically enforced by imprisoning the debtor.(48) Alternatively, the Ballek court held that even if Jeff were unable to pay child support, he could only avoid punishment under the CSRA by obtaining a downward modification of his child support order in state court.(49)
3. Sentencing: Reconciling punishment with restitution.
The CSRA's goal of punishing and deterring deadbeats has the potential to frustrate the statute's primary objective of compensating custodial parents and their children through the CSRA's mandatory restitution provision.(50) Specifically, a convicted deadbeat cannot work toward repaying the past due child support he owes while he is behind bars. Section 228(b)(1) of the CSRA states that a court can imprison a first-time offender up to six months, and a repeat offender up to two years.(51) In United States v. Bongiorno, however, the district judge sentenced the defendant Frank Bongiorno to five years probation. Bongiorno's sentence included a requirement that he spend only twelve hours per day in the custody of the Bureau of Prisons during his first year of probation, while spending the remainder of each day working to pay off his child support debt.(52) Bongiorno argued that the "intermittent confinement" condition of his sentence exceeded the maximum prison term of six months for first-time offenders.(53)
The First Circuit held that the district judge was justified in his fashioning of Bongiorno's sentence. The district court has the discretion to require a defendant to "remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation."(54) The Bongiorno court reasoned that if the defendant were in custody twelve hours each night, that would amount to six months of imprisonment over the course of one year.(55) The First Circuit also noted on appeal that this sort of work-release arrangement ensures that restitution is made during the period of incarceration by allowing the prisoner to continue working.(56) To date, however, no other court appears to have adopted this creative approach to reconciling the punishment and compensation provisions of the CSRA.
4. Compensation: Enforcing the CSRA's mandatory restitution provision.
The First Circuit also held in Bongiorno that Assistant U.S. Attorneys cannot invoke the Federal Debt Collection Procedure Act (FDCPA) to collect child support against a noncustodial parent who is ordered to pay restitution to his child and ex-partner under the CSRA.(57) The district judge convicted Bongiorno for failing to pay more than $200,000 in child support over six years, and ordered him to pay that amount in restitution.(58) The attorneys who prosecuted Bongiorno then sought to enforce the restitution order under the FDCPA, which would trigger the attachment of Bongiorno's wages.(59) The First Circuit held, however, that the FDCPA does not cover victims of nonpayment of child support under the CSRA because it is merely a private debt that is "not owed to the United States in an economically meaningful sense."(60) Federal prosecutors lamented the result in Bongiorno, which they believe will leave restitution orders under the CSRA unenforceable.(61) Significantly, the Bongiorno court's rationale that child support is a private debt is at odds with the Ballek court's insistence that child support is a moral obligation owed to society and the state. The latter rationale seems to support the application of the FDCPA to intransigent child support evaders, although that issue has yet to be raised and addressed in any other court.
III. ENFORCING THE CSRA
A. Patterns of Enforcement Under the CSRA
The CSRA is a gender-neutral statute, stating that "whoever willfully fails to pay a past due child support obligation" may be punished. However, as of today, no women number among the 105 criminal offenders. This is despite the fact that at least 10 percent of child support obligors are women, some of whom fail to meet their child support obligations.(62)
2. Socio-economic status.
Aside from the broad scope of the Ninth Circuit's holding in Ballek regarding the relative wealth of child support obligors, the CSRA applies to either wealthy obligors or `poor' obligors.(63) Section 228(d) defines a past due support obligation as one that is greater than $5,000 or one that has gone unpaid for more than one year, regardless of the amount.(64) Despite this statutory flexibility, none of the CSRA cases brought to trial involve debts owed to single-mother households where the family was `poor' before the father left the household. Rather, the majority of convictions involve wealthy noncustodial fathers who owe enormous sums of past due child support. In most instances, the custodial mother and her children are able to maintain a high standard of living without the child support. Only three publicized cases involve single-mother households whose prior standard of living ranged from middle to lower-middle class and who were impoverished by divorce.(65) The noncustodial father in each of these cases owed a relatively small monthly sum in child support, but had failed to pay for such a long time that the amount owed far exceeded the statutory minimum as defined in [sections] 228(d).(66)
3. Marital status.
The CSRA could be enforced against a noncustodial parent who lived with his or her partner and children at one time but never married the partner, or even to a noncustodial parent who never resided with his or her children and the custodial parent. The statute merely requires that a past due child support obligation be determined under a court order or an order of an administrative process pursuant to state law.(67) Thus, a noncustodial parent who never married his or her child's custodial parent can be prosecuted under the CSRA if the state orders the noncustodial parent to pay child support pursuant to a finding of paternity and the parent fails to meet that obligation.(68) Despite the CSRA's elasticity and the recent increase in findings of paternity under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), more commonly known as `welfare reform,' all 105 convictions involve past due child support obligations ordered pursuant to state divorce and custody proceedings.(69)
B. Realities of the Criminal Justice System
1. Reluctant prosecutors.
One reason for the CSRA's ineffectiveness as a tool for collecting past due child support is the distinct lack of enthusiasm among federal prosecutors for child support enforcement cases. Assistant U.S. Attorneys have been reluctant to prosecute obligors who meet the CSRA's requirements because most of the potential cases are low-profile misdemeanors that they believe are best left to states to enforce.(70) In fact, the Department of Justice filed only five charges from 1992 to 1994.(71) In response, Attorney General Reno issued an agency-wide memorandum requiring Assistant U.S. Attorneys to make the enforcement of the CSRA a priority. Reno informed the Assistant U.S. Attorneys that their level of compliance with this memorandum would be included in their annual performance reviews.(72)
Despite this strongly worded directive, the Department of Justice and its investigative arm, the Federal Bureau of Investigation, gave the Inspector General's Office at the Department of Health and Human Services the authority to decide which child support evaders should be prosecuted.(73) Contrary to Congress' purported goal of inducing errant fathers to support their impoverished children, the Inspector General's Office has instituted a policy of pursuing the cases with the highest arrearages--cases that almost always involve families from the top of the socioeconomic spectrum. Specifically, the "Screening Process Guide Qualifications" require that an obligor parent owe at least $20,000 in past due child support even though the CSRA sets the floor at $5,000.(74) The Inspector General's Office and representatives from the Department of Justice informed Congress that they focus exclusively on noncustodial parents with high arrearages because these cases attract the most publicity and are thus most likely to deter potential child-support evaders.(75)
2. Reluctant courts.
Although the majority of circuit courts have declared the CSRA constitutional, some federal judges still believe that Congress exceeded its legislative authority when it enacted the statute. For example, Federal District Judge Paul Rosenblatt stated: "I will go to my grave believing that [the CSRA is unconstitutional].... I thought I'd gotten out of the child support business when I left the state courts."(77) J. Clifford Wallace, former Chief Judge of the Ninth Circuit, wrote a letter to Chief Justice Rehnquist decrying the effects of the CSRA on federal courts: "Will this increased federalization of the law abate?.... [T]he federal government alone cannot solve every problem confronting our nation. The fact that a particular area of the law could be handled in federal court does not necessarily mean that it should be."(78)
C. Congress' Response
1. The Deadbeat Parents Punishment Act of 1998 (DPPA).(79)
In February 1997, Congress evinced concern that the misdemeanor penalties available under the CSRA were insufficient punishment for current offenders and an insufficient deterrent for potential offenders.(80) In June 1998, Congress amended the CSRA with the Deadbeat Parents Punishment Act (DPPA), which stiffened the CSRA's punishment provision, making a first-time offense a felony. The amendment provides for up to twenty-four months of imprisonment for an offender who has not paid child support for more than two years or owes past due support in an amount greater than $10,000.(81)
The DPPA also makes it easier for a federal prosecutor to prove that an obligor willfully failed to meet his or her child support payments. Specifically, the amendment creates a rebuttable presumption that an obligor is able to pay child support, and therefore acts with intent when he or she fails to pay, where a support obligation existed for the period of time charged in the indictment.(82)
2. The Fathers Count Act of 1999 (FCA).
Superficially, Congress took what seemed a decidedly different approach to child support enforcement when Nancy Johnson, a Republican representative from Connecticut, proposed the Fathers Count Act (FCA). Much like the CSRA, the FCA has garnered strong bipartisan support, as well as the approval of former Vice President Al Gore, the Children's Defense Fund, and members of the men's rights movement, who had previously opposed the CSRA.(83) The FCA, or H.R. 3073, which the House passed by a vote of 328 to 93, is currently under review in the Senate Finance Committee. The FCA would provide $155 million in grants for programs that promote marriage and `responsible' fatherhood.(84) The Act's goals are strikingly similar to the goals of the CSRA--to remove single-mother households from the welfare rolls by ensuring that fathers support their children. But the FCA would coax rather than coerce fathers into accepting responsibility for their children. The Act would teach parenting skills to poor, noncustodial fathers and enhance their employability through job training so that they could better meet their child support obligations.(85) Other FCA-sponsored services are designed to promote marriage both as an end in itself and the best way to keep women and children off of welfare. These pro-marriage programs include anger-management training, family planning information, tips on relationship skills, and money management techniques.(86) The FCA has drawn much criticism from women's rights groups such as the National Organization for Women (NOW) and NOW Legal Defense and Education Fund. These groups have expressed concern that the FCA's goal of promoting marriage ignores the immediate concerns of custodial mothers and may even encourage some women to remain in abusive relationships.(87)
The existence of the DPPA and the FCA is further proof that the CSRA has not met its first programmatic goal of reducing the amount of past due child support owed to America's children. Rather, the gap between the amount of child support owed and the amount of child support collected has risen dramatically from $27 billion in 1992 to $45 billion in 1997.(88) Because the CSRA cases that do result in convictions almost exclusively involve wealthy noncustodial parents who owe astronomical arrearages to wealthy custodial parents, the CSRA has failed to meet its second programmatic goal as well: reducing the number of single-mother households on the welfare rolls by substituting child-support payments for state assistance.(89)
More importantly, the FCA's existence demonstrates that the CSRA failed to meet Congress' normative goal of restoring the nuclear family by reattaching convicted male obligors to their ex-wives and children, and deterring potential child-support evaders not only from shirking their parental responsibilities upon divorce, but from divorcing in the first place. Thus, the FCA uncovers the last hidden layers of the CSRA's normative agenda. Legislators who lamented the mounting divorce rate while superficially proposing to fortify single mothers and their children in 1992 now openly denounce single-mother families as illegitimate, perpetually dependent, and in desperate need of a man--any man--other than the state.
IV. ANALYTICAL CONSIDERATIONS: WHOM DOES THE CSRA LEGALLY HARM?
While most would agree that the nonpayment of child support is problematic, if only because of its devastating financial and emotional impact on many American children, it is less clear whether this problem should be solved through the CSRA's `get tough' measures. This Part examines the factors that may make the CSRA potentially unlawful as well as ineffective, focusing on: 1) the equal protection interests of fathers who willfully fail to pay child support; and 2) the substantive due process rights of custodial mothers. Both noncustodial fathers and custodial mothers have significant legal interests at stake during federal child support enforcement proceedings. The noncustodial father may think it unfair that he is more likely to be prosecuted than a similarly errant female obligor, and the custodial mother may prefer to accept welfare payments rather than have her ex-partner reintroduced, albeit financially, into the family realm. However, a noncustodial father's equal protection challenge is colorable, although unlikely to succeed on the merits, whereas our legal system provides little, if any, conceptual space in which the custodial mother can articulate her substantive due process concerns about the CSRA. This disparity, I propose, is due to the law's perception of fathers as autonomous creatures with actionable individual rights during marriage and after divorce. In contrast, the individual rights of a mother are subsumed within the private sphere of family, regardless of her marital status, such that when the child's father is absent, the state intervenes to protect her in his stead.
A. Equal Protection
There are several colorable arguments for why the CSRA violates the equal protection rights of men. First, the CSRA could be construed as discriminatory in impact and in purpose. Despite the significant number of noncustodial mothers who fail to pay child support, all 105 convictions have been brought against male evaders.(90) Second, the CSRA treats fathers differently based on whether they reside with their children. A father who lives with his children can make almost any lifestyle change that reduces the amount of support he provides his child as long as the child is not legally neglected. However, a father who does not reside with his child and who is subject to a support obligation must acquire government approval in the form of a downward modification before making a lifestyle change that would prevent him from meeting that obligation. Although female obligors could theoretically bring this latter challenge, practically, the claim is only available to men, as the CSRA to date has only been enforced against male obligors.
1. The CSRA discriminates against men.
Male challengers may claim that to date, the CSRA has been administered such that it discriminates unlawfully on the basis of gender.(91) The CSRA is gender-neutral in its wording, but only male child-support evaders have been selected for prosecution. Statistics show that despite the significant number of female obligors who fail to pay child support, all of the 105 convictions under the CSRA have been brought against men.(92)
A male challenger could further argue that the CSRA's adverse impact on men reflects invidious gender-based discrimination.(93) The Supreme Court held in Village of Arlington Heights v. Metropolitan Hous. Dev. Corp. that to establish a colorable equal protection claim on a discriminatory impact theory, the petitioner must demonstrate a discriminatory purpose in addition to making a statistical showing of discriminatory impact.(94) Discriminatory purpose, in turn, can be based on the statute's legislative history as well as the general history of the problem the statute was supposed to solve.(95)
United States v. Nichols is the only case in which a CSRA defendant has challenged his conviction on the ground that the statute discriminates against men.(96) The Nichols court dismissed the claim because the petitioner failed to explain why the CSRA reflects invidious discrimination on the part of its framers.(97) The CSRA's legislative history is actually replete with evidence that its framers intended to target only male obligors. The CSRA's drafters and main proponents emphasized that the CSRA's purpose is to punish deadbeat dads for exacerbating the economic plight of poor single moms. Rep. Henry Hyde's opening before the House Subcommittee on Crime and Criminal Justice is a revealing example of Congress' intent: "I introduced [the CSRA] because I could not ignore the devastation wrought by a father abandoning his children. I want to make sure that the federal government relentlessly pursues and if necessary puts behind bars those men warped enough to prefer constant movement to caring for their children."(98) Interestingly, with the exception of one custodial father seeking to enforce his ex-wife's unpaid child support obligations (whose testimony was added as an appendix to the Senate subcommittee hearings), all of the parents invited to testify before Congress about their failed attempts to collect child support were custodial mothers.(99)
The general history of the problem that the CSRA was intended to solve, namely, removing single-mother families from the welfare rolls, further reflects Congress' intent to discriminate against men. The CSRA's framers capitalized on contemporaneous studies attributing fathers' failure to pay child support to the increasing number of single-mother households on welfare.(100) Congress then went one step further, insisting that divorce is the tree root of female and child poverty because it places fathers in a position where they can shirk the their parental responsibilities.(101) One can reasonably infer from the CSRA's legislative history that Congress believed deterring the breakup of the nuclear household (rather than enforcing child support payments) to be the ultimate solution to the problem of single-mother poverty. As for the existing and unrepentant child-support evaders, Congress would punish them for divorcing their wives as well for failing to pay child support, because both acts led to their families' impoverishment. Accordingly, a male challenger could argue that the CSRA creates a sex-based classification because its framers proceeded with the sex-specific intent to punish male child-support evaders `because of,' and not merely `in spite of' their gender.(102)
The CSRA's inherent sex-based classification serves the important, albeit unrealized, government objective of ensuring the well-being of children. The discriminatory means employed by the CSRA, however, do not seem substantially related to that objective.(103) Specifically, the statistical disparity between male and female obligors does not establish a constitutional "fit" between the government's interest and the CSRA's discriminatory means of furthering that interest by targeting only men who shirk their child-support obligations when a not-insubstantial portion of the population of child-support evaders is female.(104) Nor can the state articulate an "exceedingly persuasive justification" why only male obligors should be prosecuted under the CSRA.(105) Certainly, arguments that women are immune from prosecution because a natural inclination to care for their children would prevent them from shirking their child-support obligations or from leaving their kids in the first place fall flat in the face of statistics: They "serve to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women."(106) A male challenger is likely to be unsuccessful in proffering these arguments, however, as the government can be said to have acted reasonably in concentrating its limited resources on prosecuting men, who do constitute the vast majority of child-support evaders.
2. The CSRA discriminates against noncustodial fathers.
An alternative Equal Protection ground for challenging the CSRA is that the statute allows parents, all of whom owe a legal duty of support to their children, to be treated differently depending on whether they reside with their children. That differential treatment, the argument goes, does not bear a rational relationship to the government's interest in protecting children because the physical proximity of a parent and child does not affect that parent's legal and moral duty to support the child. In fact, parents who live with their children can almost always alter their lifestyle to the economic detriment of their child without fearing state intervention. In contrast, noncustodial parents who are obligated to provide periodic child support payments must obtain state approval before making any sort of financially significant lifestyle change. Because the CSRA's patterns of enforcement limit this second equal protection claim to fathers, I limit my discussion to male petitioners.
A noncustodial father subject to a state child-support order must have that order modified by a family court judge before making a lifestyle change that would prevent him from meeting his monthly obligation. If the noncustodial father makes such a lifestyle change without obtaining a modification, he could face contempt charges, income withholding, and state criminal penalties.(107) To obtain a child-support modification from a family court judge, the noncustodial father's lifestyle change must fall within the "changed-circumstances rule," i.e., the change must occur after the decree is entered and must be unanticipated by the parties.(108)
The CSRA renders the state's involvement in a noncustodial father's lifestyle even more invasive, as failure to obtain a downward modification before making a financially significant lifestyle change could result in federal criminal prosecution of the father.(109) The Ballek court held that regardless of the circumstances, a CSRA defendant is "able to pay" child support unless he has successfully obtained modification from the state court. The court further held that if the defendant has the ability to pay child support and fails to do so, then he intentionally failed to pay child support and is subject to conviction.(110)
Accordingly, the Ballek opinion does not include Jeff's testimony at trial that he shifted from steady construction work to low-paying odd jobs after his divorce to devote himself to his church.(111) Nor does the court mention that Jeff tried two times to obtain a downward modification of his child-support order, but was denied on both occasions. Even if the court in Ballek saw fit to review the state judge's decisions, the denials would likely be upheld under the "changed-circumstances rule" because Jeff became a born-again Christian before the divorce went through.(112)
Jeff is not the most sympathetic of Equal Protection claimants--the trial transcript reveals that other members of his congregation supported their children in addition to performing their religious duties. Jeff also saw fit to bestow gifts of luggage and cash on his eldest daughter once she reached adulthood.(113) But even a more sympathetic figure is subject to prosecution under the CSRA for making a well-intentioned lifestyle change that the state deems inadequate. Imagine a divorced lawyer who wants to move from a lucrative partnership position in a private law firm to a relatively low-paying public interest job because he's fed up with the long hours and would rather spend time with his children than provide them with a posh lifestyle. But as long as the mother's financial situation has not significantly improved and the noncustodial father has the skills and physical capacity to meet the prescribed amount of child support, the modification is likely to be denied. This denial could automatically expose the most well-intentioned of noncustodial fathers to criminal liability. A further inconsistency in the functioning of the CSRA is revealed; specifically, the government appears to prioritize the maintenance of a posh lifestyle over a child's emotional connection with his or her father, a decision that is on its face contradictory to the CSRA's stated objective of enhancing both the emotional and financial well-being of children of divorce.(114)
The CSRA could subject even a loving and supportive noncustodial father to criminal liability because of changed economic circumstances. In contrast, a married father or an unmarried father who resides with his partner and children may change his lifestyle with impunity so long as that change does not result in child neglect. Significantly, a custodial father's independence is constitutionally protected by the fundamental right to family integrity, which prevents the state from intervening in his family affairs absent a compelling state interest.(115) To comply with this requirement, most statutory or doctrinal standards for child neglect are quite permissive, permitting a custodial father to change his behavior such that it severely reduces the family's standard of living without suffering the indignity of state intervention.(116)
The CSRA's differential treatment of fathers who no longer reside with their children will likely withstand traditional rationality review. The law assumes that a custodial father will always act in the best interests of his children, and admittedly, it is easier to provide emotional and financial support for one's children when they reside under the same roof. However, a reviewing court should not simply presume that Congress acted rationally when it enacted the CSRA.(117) Rather, the court should scrutinize this statute under a stricter version of rationality review because the CSRA's sweeping punitive measures bear little relationship to the statute's purported objective of getting single-parent families off of welfare.(118) In fact, the CSRA is at odds with its purported objective--incarcerated offenders are usually incapable of paying off their restitution orders. Thus, a reviewing court could infer that members of Congress did not enact the CSRA to fortify single-mother families forced onto welfare by child-support evaders, but rather intended to ingratiate itself with the American public by arbitrarily singling out a politically unpopular group--deadbeat dads--to bear special burdens, as the government sets out to dismantle the workings of the welfare state.(119)
B. The Inarticulable Privacy Rights of Custodial Mothers
A custodial mother whose ex-partner fails to pay child support is likely grappling with several personal and legal issues, none of which can be dealt with, much less favorably resolved, in the context of a CSRA prosecution. She may be making choices about how to balance work and childcare responsibilities, or deciding how much time and money she can expend tracking down her ex-partner and strong-arming the state into collecting the past due payments. She may also have to decide whether to accept AFDC as an alternative form of subsidy, which under the PRWORA could mean that she must participate in a paternity proceeding if she was unmarried when she had her child.(120) If her ex-partner was abusive as well as delinquent in his child support payments, she may reasonably fear that a paternity proceeding combined with the financial reconnection that would inevitably occur upon his CSRA conviction will endanger herself and her children.(121) Thus, even though custodial mothers lack standing to challenge their ex-partners' convictions under the statute, it is worth exploring how the statute could compromise their privacy and substantive due process rights such that they would argue against prosecution.
Custodial mothers should possess a right of intimate association that flows naturally from the constitutional doctrine of family privacy. But a woman's right to privacy does not protect her parenting preferences from state intervention under the CSRA, permitting her to choose independence over reconnection with her child's father, because the constitutional definition of family is premised on the traditional heterosexual construct. The Supreme Court has struck down statutes that interfere with parents' fundamental right to send their children to a private school(122) or to educate their children in their mother tongue.(123) The applicability of this precedent to the present context is questionable, however, as the Supreme Court likely predicated the right of family privacy in these decisions on the existence of an intact nuclear family.
At least one court has articulated that a mother-child unit itself constitutes an intact family that should enjoy the same right to family privacy and self-determination as the traditional nuclear family. In Holtzman v. Knott, the court denied a custodial mother's former lesbian partner joint custody but allowed her visitation rights because she had developed a significant emotional bond with the child.(124) The dissenters vehemently objected, stating that because the mother-child unit is itself an "intact family," even granting the ex-partner minimal visitation rights violates the mother's "constitutionally protected `fundamental fight' to raise [her] children free from unnecessary intrusion by the government."(125) Because vast tracts of law and policy favor the intact heterosexual family, the dissenters' insistence that the mother-child unit be protected against state interference on behalf of a former homosexual partner may erode where the party seeking access to the child is also the biological father, especially if the father once resided with his child.(126) Nonetheless, custodial mothers whose ex-partner has completely abdicated his childcare responsibilities should possess some cognizable privacy right to make personal decisions regarding the well-being of their child, barring state interference in the form of a CSRA prosecution if the custodial mother believes that a coerced reattachment of any sort to the child's father threatens the family's safety or compromises its values.
Noncustodial fathers can challenge the CSRA on the ground that it violates the Equal Protection Clause, although probably without much success. In contrast, even though women should possess some right to decide how their child will be affected by a reconnection with his or her father, custodial mothers lack standing to challenge the CSRA's intrusion on their nontraditional families as well as the authority to prevent prosecution of their child's father. The latter distinction is ultimately within the discretion of the prosecuting attorney. Why does this distinction still exist given the growing number of single-mother families? Moreover, does the legal distinction detailed above matter from a functional perspective, as many women argue that regulating how and where custodial mothers get their support is preferable to leaving them completely vulnerable to the whims of their ex-husband or ex-partner?(127) In Part V, I argue that women lack legally cognizable fights, or even a palpable voice, in this debate because their motherhood renders them devoid of individual fights and relegates them to the private family sphere, regardless of their legal status vis-a-vis their children's biological father. This distinction ultimately works to the detriment of single-mother families, Part V further contends. In addition to punishing errant fathers, the CSRA, the DPPA, and the FCA all condition government protection on "responsible" motherhood, punishing poor, custodial mothers for making procreative choices outside of the nuclear family.
V. PARADOXES, CONTRADICTIONS, AND AN ATTEMPT AT SOME ANSWERS
Why would a gender-neutral statute target only noncustodial fathers in practice? How can the CSRA, purportedly designed to reduce the number of single-mother families on welfare through the enforcement of child-support orders, have been so ineffectual in reaching both of its programmatic goals? And why, in the face of solid statistics demonstrating that this Act has not met its purported objectives, does Congress continue to view a reconnection of the father to his ex-partner and children as the best solution to this problem, as is evidenced by the DPPA and the FCA?
I suggest that Congress has not ignored the overwhelming evidence that the CSRA will not reduce the number of single mothers on welfare out of legislative incompetence or the need to effect a compromise. Rather, Congress passed the CSRA with the implicit but overriding intent to reaffirm the favored status of the nuclear family by attaching punitive consequences to divorce or to some parents' failure to marry in the first place. The CSRA's subliminal purpose is grounded in a gendered liberal discourse that describes the creation and maintenance of `good' (i.e. nuclear) families as this country's foundation for growth and prosperity, a discourse that underlies much of the federal government's policy on `the family.'(128)
How the state packages and promotes marriage under the CSRA should be of particular concern to modern-day feminists, who are struggling to define their relationship to the state in the wake of increased state intervention in the female poverty issue. One feminist camp views the liberal state as an uncomplicated and appropriate vehicle for reform.(129) A second feminist camp is highly skeptical of the state's motivations when it intervenes in women's lives, although it has yet to articulate the reasons behind this skepticism in any real detail.(130)
In this Part, I explain that the CSRA confirms the second camp's concerns by presuming that the custodial mother possesses no social or political identity other than selfless caretaker even after she splits from her child's father. The CSRA's restrictive definition of `custodial mother' has real consequences: It could further impoverish a single-mother household or expose that household to violence from an abusive noncustodial father. By funneling government attention and resources toward noncustodial fathers while eliminating direct subsidies to many single-mother families through the mantle of welfare reform, the CSRA, together with the DPPA and FCA may coerce men and women to enter into marriages against their will to avoid criminal sanctions or impoverishment. In addition to fleshing out the real-life consequences of the CSRA's ideological slant, I attempt to use the statute as a case study for constructing a definition of the modern state that builds upon traditional feminist critiques of appealing to the liberal state in reform politics. I suggest that the CSRA reveals that the liberal state is not neutral and noninterventionist vis-a-vis the family. To the contrary, the Act demonstrates that the modern state regulates `the family,' continually recreating a heterosexual nuclear structure and discourse through a multiplicity of masculinist dimensions.
A. The Liberal State: Creating Gender Expectations in the Nuclear Family and Beyond
The CSRA is potentially frustrating to the self-determination of custodial mothers because it limits their identity to that of wife and mother, even after the custodial mother divorces or leaves the child's father. At first blush, this hypothesis seems overdrawn; how can the CSRA disfavor women when it punishes and attempts to deter only recalcitrant fathers? I suggest that the CSRA's normative policy of inducing women to make certain social and procreative choices stems from its definition of the heterosexual nuclear family. This conception of the heterosexual nuclear family is in turn part of the creation of a gendered liberal discourse whose very terms constrain mothers from forging identities as rights-bearing individuals.
Liberal discourse envisions the world as divided into three separate spheres--the state, civil society, and the family. Men are defined as self-interested individuals, whereas women are defined as selfless family members. A woman's right to be defined as an individual dissipates once she allies herself with a man and bears children, as her reproductive capacity is considered naturally suited for the private realm of the family.(131) In contrast, a man's relationship to his family is limited by his status as a rights-bearing individual who performs highly valued work in the public marketplace.(132) Men do not shed this self-interested stance when they return to the family domain. They enjoy and even crave the family as a temporary haven from the world of work, but for them the family's function is limited to a space where their civic identity as `individuals' can be continually refreshed and recreated through the selfless domestic labor of their mates.(133) Hegel sums up this distinction nicely: "[M]an has his actual substantive life in the state, in learning, ... in labour, ... so that it is only out of his [division] that he fights his way to self-subsistent unity with himself.... Woman has her substantial destiny in the family."(134)
In recent decades women have succeeded as advocates for the recognition of their civil rights and as workers in the marketplace, which may make this working definition of the liberal discourse seem antiquated. However, the nineteenth-century notion of the liberal family still informs huge tracts of government policy. The CSRA carries this construct of the liberal family into the modern-day realm of family values talk; it assumes that custodial mothers who exist outside of the traditional family sphere by virtue of divorce or separation from their child's father are devoid of civic identity. Under the CSRA, custodial mothers lack both accountability for their actions vis-a-vis their children and cognizable individual rights, even after they have rejected the nuclear family by divorcing or leaving their child's father or never moving in with him at all.
Let us assume, for example, that Jeff Ballek was sincere in his assertion that religious fervor prevented him from working for money to pay off his child support debts. His conviction reflects the court's censure of his failure to adhere to the liberal norms of fatherhood by making a living for his family in the marketplace, even though he no longer has a safe haven to return to in the evenings. In contrast, Mary Ballek's efforts to support her children go unquestioned by the court, as if she is assumed to have only the most selfless of motivations toward her children. The record, if examined on this point, challenges this assumption. After the divorce, Mary found work that enabled her to support her children, albeit at the brink of poverty. It was in part Mary's decision to attend college that forced the family into poverty, a decision motivated by her professed need for self-fulfillment.(135) Significantly, Mary's decision to seek an education at the expense of her children typifies behavior that the court in Ballek deemed criminal when committed by noncustodial fathers. "A parent ... cannot quit work and become a hobo or go back to school as the fancy moves him."(136) The Ballek court's portrayal of Mary as a selfless mother demonstrates that mothers outside the four walls of the traditional nuclear family, even those who seek a degree of civic personality through education, are held unaccountable for their actions and are viewed merely as "derivative of their households and husbands."(137)
One could narrowly interpret the court's affirmation of traditional gender roles in Ballek as a gesture of sympathy for a poor custodial mother who was too uneducated to protect herself financially at the time of divorce. But the Brand court also assumed that Margrethe would adhere to the selfless, nurturing role demanded by the liberal state even though she was well informed by her attorneys and in no danger of becoming impoverished and dependent on the federal government after her divorce. To the contrary, Margrethe walked away from her failed marriage with luxury cars, jewels, a hefty property settlement, and access to the best legal counsel available.(138) Nonetheless, the Brand court brushed aside Abraham's suggestion that Margrethe's recovery of a lump sum of $3,935,000 for alimony and child support would go almost entirely to the support and maintenance of Margrethe.(139) Here, too, it is possible that the very notion that Margrethe could act self-interestedly was disregarded because of her gender; rather, the court may have assumed that Margrethe's primary role as selfless family caregiver transcended any proclivity on her part to hoard the lump sum payment.
The CSRA seems to insist that unmarried, custodial mothers have predetermined capabilities that limit their representation in law and policy to the selfless duties required of them in the nuclear family, even when there is ample evidence of their civic and selfish personality. To the detriment of custodial mothers who desire financial independence and the freedom to define `family' for themselves, Congress' failure to recognize that single-mother households are legitimate families has resulted in decisions against expending federal resources to help these nontraditional families become more financially independent. Instead, under the CSRA, the DPPA, and the FCA, Congress has devoted large amounts of federal funds to either coerce or to encourage noncustodial fathers to assume what is considered their rightful role as men of the liberal state who can take care of their own.
The CSRA's and the DPPA's implicit message and the FCA's open mandate that single mothers must reconnect with their child's father to evade poverty is potentially dangerous as well as unfounded. The FCA, in particular, promotes marriage as the penultimate solution to female poverty, with no exception for cases of family violence.(140) Recent studies show that up to 32 percent of female welfare recipients are suffering or have suffered abuse at the hands of their husbands or fathers.(141) That statistic, together with the fact that welfare benefits have been severely curtailed since the enactment of PRWORA, may cause custodial mothers to rely more than ever on a dubious reconnection to their child's father. It is not for the government, however, to promote marriage at the expense of the welfare of women and children, by encouraging these women to remain with these men or to return to them. Significantly, this policy directly contradicts the admonition of the drafters of the CSRA that Congress' top priority is to ensure the financial and emotional well-being of needy children and their mothers.(142)
B. How the Masculinist State Creates Nuclear Families Under the CSRA
Wendy Brown, author of States of Injury, insists that critiques of the gendered terms of liberal discourse must be reconstructed within a more comprehensive definition of the state. Brown's state is composed of a set of features that signify and sustain masculine power as a form of dominance.(143) I apply Brown's theory of the masculinist state to frame how the CSRA seeks to fulfill its normative goal of restoring family values by functioning as a pro-marriage statute.(144)
Brown explains that the state shapes a masculinist social and political world without overtly intending to further the interests of men. Masculinism, according to Brown, can be expressed in a variety of ways and does not devolve upon one essential political principle.(145) Untangling the mechanism is critical, Brown argues, because the state has replaced the male breadwinner as the primary means of support for a growing contingent of divorced, separated, and never-married women.(146) According to Brown, the state becomes more chimera-like as it becomes more potent, advertising itself as a protector of women and sex equality while bearing the fundamental elements of male dominance.(147)
Brown articulates a nonexhaustive list of modalities that together constitute the protean workings of contemporary state power. In addition to the gendered underpinnings of the liberal discourse,(148) Brown argues that the state exercises a prerogative power that is masculinist in quality because it suggests that women need men to protect them against violence from the outside world.(149) According to Brown, prerogative power was historically reflected in the head of state's exercise of arbitrary acts of violence that were `legitimate' because they secured or protected the state's welfare.(150) On a smaller scale, the adult male derived his status as head of household from his ability to defend his wife and children from marauding bands of warriors.(151) Today, the state exercises a prerogative power of sorts when it legislates or administers policies with the objective of protecting women. The CSRA illustrates this exercise of modern-day prerogative power: By punishing men for the poverty of women and children, the CSRA suggests that a male figure, either in the form of a biological father or a paternal welfare state, is all that stands between custodial mothers and starvation.
The gendered division of labor in our society characterizes the capitalist dimension of Brown's state.(152) Historically, men were paid to do `productive' work in the marketplace. In contrast, women performed unpaid reproductive work by bearing children and attending to their husbands' domestic needs. Today, more and more women work for a wage. Nonetheless, the economy remains organizationally and normatively structured for male wage earning and privilege. Many women, even high-wage earners who work in traditionally male-dominated professions, continue to supply disproportionate amounts of unremunerated reproductive labor in the home. Many single mothers support their children by performing reproductive-type service work for the state in exchange for minimal wages.(153) Far from bolstering female wage earning and privilege so that single mothers can support themselves independently of the state if they so choose, the CSRA would coerce noncustodial fathers to support their ex-partners and children. The FCA is even worse: It would train only fathers to perform skilled jobs that are far more remunerative than female service-sector work.
The bureaucratic dimension constitutes the final modality in Brown's theory of the masculinist state.(154) This dimension reveals itself in the proliferating social services agencies like Housing and Urban Development (HUD) and Health and Human Services (HHS), which provide services to a large female clientele.(155) Brown argues that bureaucratic agencies regulate their female subjects from a masculinist orientation, which means that they prioritize liberty, individual rights, and self-interest over the values of a care-giving milieu. Women who appeal to bureaucratic agencies in a care-giving capacity, like single custodial mothers seeking child support enforcement, are characterized as dependent on either a noncustodial father or a paternalistic state.(156)
These modalities of masculinist state power intersect under the CSRA to encourage, and, in some instances to coerce, women into `choosing' marriage and the heterosexual nuclear family. Congress claimed that the state's intervention in family matters would recede under the CSRA, because coercing noncustodial fathers to pay child support was intended to reduce the number of custodial mothers dependent on state support.(157) In reality, however, the CSRA increases state control over the procreative and lifestyle choices of women from all parts of the socioeconomic spectrum.(158) In addition to deterring men from failing to pay child support, the CSRA may well discourage women from having and raising children outside the confines of marriage. Especially for unskilled, low-income women who subsist on the brink of poverty, getting married and remaining married may seem a better alternative than performing underpaid work and relying on ineffectual child support enforcement mechanisms to supplement their income. Inherent in the state's normative goal is the patriarchal notion that single mothers, defined as dependent even outside the confines of marriage, are deviant, and that the `natural' family unit is based on a sexual affiliation between a man and a woman.(159)
To date, all of the prosecutions brought under the CSRA have involved once-married custodial mothers like Margrethe Stabell, who were capable of supporting their children without the CSRA conviction and restitution order. Mary Ballek's lower-middle-class background makes her a bit of an anomaly, but it is worth noting that she became poor after her divorce. This pattern of enforcement is no accident. Rather, the state protects those single mothers of divorce who choose to have children while married and who become dependent on the state for child support enforcement or welfare subsidies after their marriage ends. Mary Ballek's decision to return to school instead of working full-time to support her children went unquestioned. The Ballek court seemed to assume that her post-divorce poverty resulted primarily from Jeff Ballek's irresponsibility rather than her admitted self-interest.(160)
Thus, in cases involving single mothers who are `worthy' of state protection because they married before bearing children, the state rewards their `good behavior' by exercising its prerogative power, punishing their wayward ex-husbands pursuant to the CSRA. Outwardly, the CSRA makes the state resemble a larger-scale version of what Brown describes as the `quasi-impotent new man:' hamstrung, unable and unwilling to fulfill his traditional commitments to poor single-mother families, and eager to label another group--deadbeat dads--as the source of the problem.(161) In reality, however, the CSRA illustrates that the role of the state in the realm of the family is more powerful than ever. The CSRA is a vehicle for the state to achieve its normative goals by insisting on a financial reattachment of the custodial mother to her ex-spouse, which approximates in form, if not in substance, the heterosexual nuclear family structure. But the reward of state intervention under the CSRA is of questionable value. Even if a custodial mother is one of the few to gamer a conviction against her ex-partner, she faces legal obstacles to collecting the debt and will likely have to wait for her husband to get out of jail before he can start paying her. Moreover, in stark contrast to the divorced single mother, the state regards the never-married mother as poor, selfish, and undeserving of state protection, either in the form of welfare subsidies or the enforcement of child support orders.(162) Margaret Baldwin describes the state's condemnation of the so-called welfare mother:
In the United States, young, single ... mothers who receive public assistance are demonized, both sexually and reproductively, under the banner of government decentralization.... [They are] [c]harged with draining public coffers ... [and causing] crime, unemployment, and illiteracy among ... young men.(163)
The CSRA joins in the PRWORA's condemnation of poor, never-married single mothers. The PRWORA severely curtails single mothers' access to welfare subsidies, and the CSRA would have them look to an absent father for support, which has the effect of punishing never-married mothers for having children out of wedlock, and deterring other single young women from doing the same.
Under the auspices of the PRWORA, over 1.3 million paternities have been established since 1992.(164) Despite this statistic, and despite the existence of data demonstrating that never-married single mothers comprise a large percentage of single-mother households on welfare,(165) there have been no CSRA convictions of noncustodial fathers who failed to marry their child's mother. Again, this lack of enforcement is no accident. To the contrary, the state refuses to exercise its prerogative power to protect this category of mothers because their irresponsible reproductive behavior renders them unworthy of state protection. The FCA goes one step further and explicitly reveals the state's normative goal of withholding protection from those mothers who fail to conform to the procreative norms of the nuclear family; it conditions the receipt of government subsidies upon the marriage of the custodial mother to her child's biological father.(166)
Although the CSRA and the FCA seem simply to refrain from conferring a government benefit on never-married mothers and their children, when viewed against the backdrop of `welfare reform,' it becomes clear that the state is in fact exercising its prerogative power to punish this type of single-mother family. The PRWORA severely limits a welfare recipient's subsidy in terms of amount and duration, and in the case of never-married single mothers, it creates economic incentives for them to marry. Thus, by withholding from never-married single mothers welfare payments under the PRWORA, meaningful job training and educational opportunities under the FCA, and access to child support enforcement under the CSRA, the state punishes the single mother for her lifestyle choices by dangling her on the brink of starvation. By subjecting never-married single mothers to such dire consequences, the state deters like-minded young women from beating children outside of marriage by informing them that they can only survive with a man's protection, and that they will only receive that protection if they reproduce responsibly. Thus, the CSRA and the FCA attempt to strong-arm women into the state's idea of `responsible' producer by conditioning state protection of custodial mothers on their marital status.
VI. CONCLUSIONS AND PROPOSED SOLUTIONS
Supporters of the CSRA, the DPPA, and the FCA would likely argue that regulating the procreative behavior of single mothers is a necessary evil. Because of the modern state's incapacity to support the increasing number of single-mother households, the argument goes, the state's only other alternative would be to disassociate itself altogether. But the state's offering of a choice between procreative unfreedom on the one hand, and abject poverty on the other hand, is really no choice at all. As Brown states, "[S]uch choices offer nowhere a vital politics of freedom."(167) Not only do the CSRA, the DPPA, and the FCA constrain women's choices, the normative goals of all of these statutes expose women, and lower-income women in particular, to potential dangers regardless of which `choice' they make: To challenge the state's definition of family, raise children alone, and subsist on an unstable and inadequate welfare subsidy, or to marry against her will, potentially exposing herself and her children to an unhappy or even abusive family environment.
From the previous parts, we can draw some general conclusions: Congress presented the `get tough' policy of the CSRA as an anti-welfare measure; the CSRA has only aided custodial mothers who are the least vulnerable financially; federal criminal enforcement of child support is susceptible to being used to accomplish goals that it was not explicitly designed for (namely, coercing women, particularly lower-income women, into embracing the traditional nuclear family structure); and criminal child support enforcement laws, even if more vigorously enforced, are unlikely to assist the large number of single-mother households in any positive way.
I first propose that the CSRA and its amended version, the DPPA, be eliminated, at least as they are currently applied. I recognize that this proposal diverges from the purported purpose of the CSRA, which is to punish noncustodial fathers for failing to pay state-ordered child support. Fathers should still be held accountable for fulfilling their duty to support their children, but states are more than capable and are ultimately more effective in catching and convicting the most hard-core of child-support evaders.(168) I also propose that women's and children's fights advocates insist that Congress redirect the money used to implement federal child support enforcement toward increasing the amount and types of government support available to custodial mothers, such as meaningful job training and government-subsidized daycare. The single-mother family is here to stay, and advocacy groups would do best to push for its legitimacy as an independent family unit.
(1.) Child Support Recovery Act, 18 U.S.C. [sections] 228 (1992). A later version of the Act is entitled the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. [sections] 228. The DPPA is substantially the same as the CSRA, with the primary change being the severity of punishment--a first-time offense is a felony under the DPPA. Later in this note I will refer to the amended Act. Until then all references, including section numbers, will be to the original Act.
(2.) United States v. Ballek, 170 F.3d 871, 871 (9th Cir. 1999), cert. denied, 120 S. Ct. 318 (1999); Transcript of Proceedings, United States v. Ballek (D. Alaska 1997) (No. A97-0049-CR) (detailing circumstances surrounding the Balleks' divorce and issues of child support).
(3.) Transcript of Proceedings at 1-15, Ballek (No. A97-0049-CR).
(4.) Id. at 1-18.
(5.) United States v. Bongiorno, 106 F.3d 1027, 1035-39 (1st Cir. 1997) (holding that a restitution order issued pursuant to the CSRA is not a "debt" within the meaning of the Federal Debt Collection Procedure Act); see also David E. Rovella, `Deadbeat Dads' Get a Boost: Ruling Hobbles Government's Ability to Collect from Them, NAT'L L.J., Feb. 27, 1997, at A6 (explaining the limitation on the government's ability to collect child support).
(6.) United States v. Brand, 163 F.3d 1268, 1269-71 (11th Cir. 1998) (detailing the circumstances surrounding Abraham and Margrethe's divorce and Abraham's failure to pay child support).
(7.) Id. at 1270.
(8.) Donna Schuele, Origins and Development of the Law of Parental Child Support, J. FAM. L. 807, 810-11 (1988-1989) (crediting Chancellor Kent as the founder of the American notion that parents have a legal, as opposed to a purely moral, duty to provide support for their children). As early as 1808, with the Connecticut case Stanton v. Wilson, authority existed for the proposition that a divorced noncustodial father was legally responsible for the maintenance of his children. 3 Day 37 (Conn. 1808), available at 1808 WL 85.
(9.) See Schuele, supra note 8, at 832, 838. Schuele explains that before the nineteenth century, biological mothers received child support even though fathers almost invariably gained custody of the child; child support was considered repayment for a mother's past services in caring for the child. It was only when judges began awarding custody to mothers in the late nineteenth century that the concept of child support evolved into a series of prospective payments to be made to the custodial mother and her child. Id.
(10.) Barrere v. Barrere, 4 Johns. Ch. 187, 197 (N.Y. Ch. 1819), available at 1819 WL 1698, at *6.
(11.) See Schuele, supra note 8, at 824.
(12.) See id. at 825.
(13.) Id. at 840.
(14.) Act of Aug. 14, 1935, Aid to Families with Dependent Children, ch. 531, [sections] 1, 49 Stat. 627 (codified as amended at 42 U.S.C. [sections] 601 (Supp. IV 1998)). The purpose of AFDC funding is to "encourag[e] the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation ... to needy dependent children." Id.
(15.) Amy E. Watkins, The Child Support Recovery Act of 1992: Squeezing Blood from a Stone, 6 SETON HALL CONST. L.J. 845, 850 (1996).
(16.) See id. at 850. In fact, by 1985, almost 90% of AFDC beneficiaries had a parent, typically the father, who lived outside of the household and failed to support his children. Id. Fathers are not the only noncustodial parents who fail to pay child support, but only about eight percent of child support obligors are mothers. See Francine Griggs, Deadbeat Mother Goes to Jail, CINCINNATI POST, Aug. 29, 1995, at A1.
(17.) See, e.g., Christmas v. Russell, 72 U.S. (5 Wall.) 290, 302 (1866) ("If a judgment is conclusive in the State where it was pronounced, it is equally conclusive everywhere in the courts of the United States." (quoting 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES [sections] 1313 (3d ed. 1858)).
(18.) Uniform Reciprocal Enforcement of Support Act of 1950, 9B U.L.A. 553 (1958). URESA, also known as "The Runaway Peppy Act," allows the custodial parent to file an enforcement petition in his or her home state court, which forwards the petition to the absent parent's state court. Each parent appears in his respective state court for arguments, and judgment is rendered and enforced in the absent parent's state court. Id.
(19.) See Janelle T. Calhoun, Interstate Child Support Enforcement System: Juggernaut of Bureaucracy, 46 MERCER L. REV. 921, 943 (1995).
(20.) See Pub. L. No. 93-647 (codified at 42 U.S.C. [subsections] 651-87 (1990)).
(21.) Watkins, supra note 15, at 854.
(22.) 45 C.F.R. [sections] 302.50 (1999).
(23.) Id. [subsections] 303.32(a), 302.51(a)(1).
(24.) Calhoun, supra note 19, at 931.
(25.) See OCSE NAT'L REFERENCE CTR., CHILD SUPPORT ENFORCEMENT PROGRAMS; PROVISION OF SERVICES IN INTERSTATE IV-D CASES 72-73 (1985).
(26.) Calhoun, supra note 19, at 923-24.
(27.) Id. at 923.
(28.) U.S. GEN. ACCT. OFF., GAO/IMTEC-92-46, CHILD SUPPORT ENFORCEMENT: TIMELY ACTION NEEDED TO CORRECT SYSTEM DEVELOPMENT PROBLEMS 2 (1992).
(29.) Child Support Recovery Act of 1992, 18 U.S.C. [sections] 228 (1992).
(30.) The Child Support Recovery Act, in its original form, stated:
(a) Offense-Whoever willfully fails to pay a past due support obligation with respect to a child who resides in another State shall be punished as provided in subsection (b).
(b) Punishment-The punishment for an offense under this section is-
(1) in the case of a first offense under this section, a fine under this title, imprisonment for not more than 6 months, or both; and
(2) in any other case, a fine under this title, imprisonment for not more than 2 years, or both.
(c) Restitution-Upon a conviction under this section, the court shall order restitution under section 3663 of this title in an amount equal to the past due support obligation as it exists at the time of sentencing.
(d) Definitions-As used in this section-
(1) the term "past due support obligation" means any amount-
(A) determined under a court order or an order of an administrative process pursuant to the law of a State to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living; and
(B) that has remained unpaid for a period longer than one year, or is greater than $5,000; and
(2) the term "State" includes the District of Columbia, and any other possession or territory of the United States.
(18) U.S.C. [sections] 228(a)-(d).
(31.) Cf. WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 194 (1995) (explaining that the late modern state represents itself like the so-called new man: "quasi-impotent, perpetually hamstrung, and in need of decentralization because it is unable to come through on many of its commitments."). There is, however, one important exception to this normative shift. Because the CSRA focuses on the most egregious of child-support evaders, or `deadbeats,' the Act can be compared to the nineteenth-century state court practice of disavowing the father's independence and awarding prospective child support payments where the mother could prove that the father had acted immorally.
(32.) See Criminal Penalty for Flight to Avoid Payment of Arrearages in Child Support: Hearing on S. 1002 Before the Subcomm. on Juvenile Justice of the Senate Comm. on the Judiciary, 102d Cong. 2 (1992) [hereinafter Hearing on S. 1002] (statement of Sen. Herbert Kohl); see also 138 CONG. REC. H7324, H7325 (daily ed. Aug. 4, 1992) (statement of Rep. David Schumer) ("[T]he bill is a bipartisan effort, and I want to truly commend the gentleman from Illinois (Rep. Henry Hyde) who really spearheaded the efforts on this bill for the last several years.").
(33.) Hearing on S. 1002, supra note 32, at 5-6 (statement of Sen. Joseph R. Biden, Jr.).
(34.) Id. at 9 (statement of Sen. Richard C. Shelby). Of course, as a practical matter, the constraints of the Commerce Clause prevented Congress from enacting a criminal nonpayment statute that punished intrastate obligors, who still constitute the majority of offenders.
(35.) See id. (statement of Sen. Richard C. Shelby) (testifying that "[n]onpayment of child support is robbing American children of happy and healthy childhoods" because "[t]he absence of child support in a household that has been awarded by a court forces the mother to spend more time away from her children, depriving the child of valuable parental attention and in too many cases the basic necessities for living and growing.").
(36.) See id. at 7.
(37.) Hearing on S. 1002, supra note 32, at 34 (statement and testimony of William N. Fetzner, Vice President, Wisconsin Fathers for Equal Justice, Inc.).
(38.) See id. at 42 (noting that census data demonstrate a direct correlation between payment of child support and access to the child). In 1990, 90.2% of fathers with joint custody paid child support. Compliance fell to 79.1% for fathers having only visitation privileges and was 44.5% for fathers enjoying neither right. Id. Of course, one could just as easily infer from the census data that courts do not award custody or visitation rights to the type of noncustodial parent who is most likely to shirk his or her child support obligation.
(39.) Id. at 40.
(40.) For a more detailed analysis of how the CSRA has the potential to harm rather than help custodial mothers, see notes 115-15 infra and accompanying text. In contrast to the public's reaction to the CSRA, women's rights groups have appeared in droves to contest the Fathers Count Bill, which would encourage noncustodial fathers to reconnect emotionally and financially to their partner and children. See, e.g., Jan Erickson, Fathers Count Bill to Fund Men's Custody Movement, NAT'L NOW TIMES, Winter 2000, at 13 (arguing that the proposed grant money would be more effective if given directly to custodial parents, and complaining that the proposed statute promotes marriage as a solution to poverty, despite the higher incidence of domestic violence reported by poor married women).
(41.) Supporting Welfare Reform: Cracking Down on Deadbeat Parents: Hearing Before the Subcomm. on Oversight and Investigations of the House Comm. on Commerce, 106th Cong. 30 (1999) [hereinafter Welfare Hearing] (statement of John E. Hartwig, Deputy Inspector General for Investigations, Dep't of Health and Human Serv.).
(42.) See, e.g., United States v. Sage, 92 F.3d 101, 103 (2d Cir. 1996).
(43.) See id.; see also United States v. Williams, 121 F.3d 615 (11th Cir. 1997) (holding that CSRA was proper exercise of Congressional authority under the Commerce Clause); United States v. Black, 125 F.3d 454 (7th Cir. 1997) (same); United States v. Bailey, 115 F.3d 1222 (5th Cir. 1997) (same); United States v. Johnson, 114 F.3d 476 (4th Cir. 1997) (same); United States v. Parker, 108 F.3d 28 (3d Cir. 1997) (same); United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (same); United States v. Hampshire, 95 F.3d 999 (10th Cir. 1996) (same).
(44.) See 22 U.S. (9 Wheat.) 1, 189 (1824) (stating that commerce is not limited to the interchange of commodities).
(45.) United States v. Ballek, 170 F.3d 871, 874 (9th Cir. 1999).
(46.) Id. at 873; accord United States v. Mattice, 186 F.3d 219, 227-28 (2d Cir. 1999).
(47.) United States v. Poll, 521 F.2d 329, 333 (9th Cir. 1975) (emphasis added).
(48.) See id. (comparing imprisonment of parents for failing to pay child support to the historical imprisonment of sailors who desert their ship and of young men who refuse to perform military service). The Ninth Circuit's reasoning is unpersuasive, however, because only a few states permitted imprisonment for failure to pay a support order in the nineteenth century, and these few states were reluctant to enforce the statutes. Schuele, supra note 8, at 838. The court is correct in asserting that the duty to pay child support was widely acknowledged in the nineteenth century, but state criminal sanctions did not become a widespread enforcement mechanism until the latter half of the twentieth century.
(49.) Ballek, 170 F.3d at 874.
(50.) See Judge Jack B. Weinstein, Compensation for Mass Private Delicts: Evolving Roles of Administrative, Criminal and Tort Law, U. ILL. L. REV. (forthcoming 2001) (noting that the growing use of the criminal justice system to compensate victims may ironically alienate those same victims from the legal process).
(51.) 18 U.S.C. [sections] 228(b)(1) (1994).
(52.) 106 F.3d 1027 (1st Cir. 1997); see also United States v. Bongiorno, 1996 WL 208508, at *2 (D. Mass. Jan. 25, 1996) (explaining that the sentence was intended to ensure that Bongiorno work toward meeting his restitution order, which was divided into monthly payments).
(53.) Bongiorno, 106 F.3d at 1034.
(54.) Id. at 1035 (citing 18 U.S.C. [sections] 3563(b)(11) (1994)).
(55.) Id. at 1035-36.
(57.) Id. at 1039.
(58.) Id. at 1029.
(60.) Id. at 1039.
(61.) See Rovella, supra note 5, at A6 ("We have so many cases in which the victim doesn't have the resources to collect the restitution owed them [sic]; [many just] get an empty judgment." (quoting Asst. U.S. Attorney Christopher Alberto)).
(62.) See Hearing on S. 1002, supra note 32, at 39 (statement of William N. Fetzner, Vice President, Wisconsin Fathers for Equal Justice, Inc.) (citing a 1991 Wisconsin study which found that while 27% of fathers failed to pay child support, 47% of women who owed child support failed to make payments); see also United States v. Nichols, 928 F. Supp. 302, 318 (S.D.N.Y. 1996), aff'd, 113 F.3d 1230 (2d Cir. 1997) (discussing equal protection challenge based on defendant's review of cases that revealed only male defendants). Accurate data on the number of women who owe child support and fail to pay is lacking; for example, a study conducted by the U.S. Census Bureau and sponsored by the federal Office of Child Support Enforcement failed to question custodial fathers about the child support status of their children. U.S. GEN. ACCT. OFF., GAO/HRD-92-39FS, INTERSTATE CHILD SUPPORT: MOTHERS REPORT RECEIVING LESS SUPPORT FROM OUT-OF-STATE FATHERS 28, 30 (1992).
(63.) By `poor' obligor, I simply mean a member of a household that was dependent on state support before the father left that household.
(64.) 18 U.S.C. [sections] 228(d) (1992).
(65.) For descriptions of these three cases, see Welfare Hearing, supra note 41, at 9 (providing the testimony of Diana L. Daffron, `victim,' that when her ex-husband failed to meet his child support obligations, she and her three children had to accept welfare checks and food stamps); United States v. Black, 125 F.3d 454, 457 (7th Cir. 1997) (noting that upon the Black couple's divorce and Gerald Black's nonpayment of child support, his ex-wife Elaine Black was forced to go on welfare); and United States v. Ballek, 170 F.3d 871 (9th Cir. 1999).
(66.) Compare United States v. Ballek, 170 F.3d 871, 871 (9th Cir. 1999) (noting that Jeff was ordered to pay $500 a month, assuming his wife and children did not leave the state), and Black, 125 F.3d at 457 (noting that Gerald Black was ordered to pay a monthly sum of $600), with United States v. Brand, 163 F.3d at 1268, 1270 (11th Cir. 1998) (explaining that the state judge ordered Abraham Brand to pay $2,500 per month in child support).
(67.) 18 U.S.C. [sections] 228(c) (1992).
(68.) IRA MARK ELLMAN, PAUL M. KURTZ & ELIZABETH S. SCOTT, FAMILY LAW: CASE, TEXT, PROBLEMS 1038, 1049-52 (3d ed. 1998).
(69.) Although I cannot list the citations of every one of the 105 convictions due to space constraints, I can vouch that I have personally reviewed all of these convictions and all have involved child support obligations related to divorce proceedings rather than paternity suits. For evidence of recent increases in findings of paternity as a result of the PRWORA, see Welfare Hearing, supra note 41, at 32 (statement of John E. Hartwig, Deputy Inspector Gen. for Investigations, Dep't of Health and Human Serv.), and Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105, 2118 (1996).
(70.) Telephone Interview with Gary Fry, Assistant U.S. Attorney, United States Attorney's Office, [Northern District of California] (Feb. 1, 2000).
(71.) 140 CONG. REC. S9379-02, S9430 (daily ed. July 21, 1994) (statement of Sen. Kohl).
(72.) Telephone Interview with Gary Fry, supra note 70.
(73.) See Welfare Hearing, supra note 41, at 4 (statement of Rep. Ron Klink, Member, House SubComm. on Oversight and Investigations) (stating that the DOJ and FBI cite a lack of resources as justification for relying on the Inspector General's Office).
(74.) See id. at 59 (statement of Rep. Richard Burr, Member, House Comm. on Commerce). These screening techniques have been soundly criticized by child welfare advocates like Vicki Turetsky, Senior Staff Attorney, Center for Law and Social Policy. Turetsky contends that Assistant U.S. Attorneys want to leave the enforcement of small amounts of child support arrearages to the states in contradiction to the CSRA's purported intent, and criticizes the Inspector General's assumption that spending federal resources on high-profile cases will have a beneficial trickle-down effect on children whose parents are not as wealthy. See id. at 50-51 (statement of Vicki Turetsky, Senior Staff Attorney, Center for Law and Social Policy).
(75.) Id. at 33 (statement of John E. Hartwig).
(76.) See id. at 30 (statement of John E. Hartwig).
(77.) United States v. Mussari, 168 F.3d 1141, 1146 (9th Cir. 1999) (quoting a statement made by Judge Rosenblatt during Mussari's trial).
(78.) Letter from The Honorable J. Clifford Wallace, Chief Judge, U.S. Court of Appeals for the Ninth Circuit, to The Honorable William H. Rehnquist, Chief Justice of the United States (Mar. 29, 1993), in William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719 app. A at 740 (1995). But see Mussari, 168 F.3d at 1145 ("I do not believe [that] it is appropriate for a court to undermine enforcement of a federal statute....") (Kozinski, J., dissenting).
(79.) 18 U.S.C. [sections] 228 (1998) (original version at 18 U.S.C. [sections] 228 (1992)).
(80.) See 143 CONG. REC. S1357-01 (daily ed. Feb. 13, 1997) (statement of Sen. Kohl).
(81.) 18 U.S.C.A [sections] 228(a)(3), (c)(2) (West 2000).
(82.) Id. [sections] 228(b). Neither the statute nor the case law clarifies what burden of proof defendants bear in rebutting this presumption.
(83.) See Erickson, supra note 40, at 13.
(84.) H.R. 3073, 106th Cong. [sections] 403A(b) (1999); accord Erickson, supra note 40, at 13.
(85.) H.R. 3073, 106th Cong. [sections] 403A(a) (1999).
(87.) Erickson, supra note 40, at 13.
(88.) See Welfare Hearing, supra note 41, at 1 (statement of Rep. Upton, Member, House Comm. on Commerce) (providing statistics for support owed in 1997). Proponents of federal child support enforcement legislation claim that the CSRA has resulted in an increased number of child support awards that must be enforced, which could ostensibly account for the increased amount of uncollected child support. However, the CSRA's supporters claimed that the CSRA would both increase the number of child support awards and ensure that those awards are collected. See id. at 1-2.
(89.) See id. at 32 (prepared statement of John E. Hartwig).
(90.) See note 62 supra and accompanying text. The only case in which a woman was criminally implicated under the CSRA is the case of Patricia Hill, who was accused of helping her husband, a child-support evader more than $90,000 in debt, escape from federal officials. See Wife Arrested in Deadbeat Case, PORTLAND OREGONIAN, Feb. 3, 1999, at B6.
(91.) See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (striking down a San Francisco ordinance that banned laundries in wooden buildings as violating the Equal Protection Clause because all non-Chinese launderers were exempted from the requirement, whereas no Chinese launderer was exempted). For background on gender-based violations of the Equal Protection Clause, see Pers. Adm'r v. Feeney, 442 U.S. 256, 274 (1979) ("The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based ... covert[ly] or overt[ly]....").
(92.) See notes 62, 90 supra and accompanying text.
(93.) See Feeney, 442 U.S. at 274 ("[T]he second question is whether the adverse effect reflects invidious gender-based discrimination.").
(94.) 429 U.S. 252 (1977).
(95.) Id. at 268.
(96.) United States v. Nichols, 928 F. Supp. 302 (2d Cir. 1997).
(97.) Id. at 317.
(98.) See Criminal Penalty for Flight to Avoid Payment of Arrearages in Child Support: Hearing on H.R. 1241 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Congress 3 (1992) [hereinafter Hearing on H.R. 1241] (statement of Rep. Henry Hyde); see also Hearing on S. 1002, supra note 32, at 1, (statement of Sen. Kohl) (introducing the CSRA as a "deadbeat dads" statute); id. at 4 (statement of Sen. Biden) ("Somewhere, [fathers] picked up the notion that they could abandon their obligations and leave their children behind. It's time to remind the deadbeat dads of this country of their responsibility, and it's time to hold them accountable."); id. at 9 (statement of Sen. Shelby) ("More and more fathers are tempted to flee across State lines.... This bill will close the escape route and will effectively leave no place for deadbeat dads to hide.").
(99.) Significantly, the female witnesses are categorized as "victimized parents" in a prominent section of the committee hearings, whereas the male witness is simply introduced as Michael Bizik from Alexandria, Virginia in a portion of the committee report that looks like an afterthought. See Hearing on S. 1002, supra note 32, at 110-16.
(100.) See notes 26-28 supra and accompanying text.
(101.) See Hearing on S. 1002, supra note 32, at 14 (statement of Sen. D'Amato) (lamenting the economic and psychological effect that divorce wreaks on children as well as the statistics indicating that millions of mothers do not receive child support because noncustodial fathers fail to pay).
(102.) See Pers. Adm'r v. Feeney, 442 U.S. 256, 281 (upholding a veterans' hiring preference initiative even though all of the veterans were male because the legislative history indicated that the legislators' intent was to reward veterans qua veterans rather than to prefer men over women).
(103.) See United States v. Virginia, 518 U.S. 515,533 (1996) (reiterating that the state must show an "important governmental objective" and a substantial relationship between the discriminatory means and the objective).
(104.) See Craig v. Boren, 429 U.S. 190, 201-04 (1976) (striking down a statute allowing women to buy beer at a younger age than men; although statistics showed that two percent of young males and only .18% of young females were arrested for drunk driving, predictive empirical relationships do not justify the use of sex as a decision-making factor).
(105.) See Virginia, 518 U.S. at 531 (an "exceedingly persuasive justification" is required to defend a gender-based government action).
(106.) J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 131 (1994).
(107.) See ELLMAN, KURTZ, & SCOTT, supra note 68, at 580-86.
(108.) Compare In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993) (holding that the child's increase in age and athletic skill was a sufficient change of circumstances to modify custody), with Lizzio v. Jackson, 640 N.Y.S.2d 330 (N.Y. App. Div. 1996) (holding that an asthmatic child's allergic reaction to custodial mother's smoking is not a changed circumstance, as the mother smoked at the time of divorce).
(109.) United States v. Ballek, 170 F.3d 871, 875 (9th Cir. 1999).
(111.) See Transcript of Proceedings at 162, United States v. Ballek (D. Alaska 1997) (No. A97-0049-CR).
(112.) See id. at 157.
(113.) Id. at58.
(114.) See, e.g., Kelly v. Hougham, 504 N.W.2d 440 (Wis. Ct. App. 1993) (allowing reduction for father who returned to graduate school and quit his full-time job because the father continued to work part time and the custodial mother now had a full-time annual salary of $45,000); In re Marriage of Ilas, 16 Cal. Rptr. 2d 345 (Cal. Ct. App. 1993) (denying reduction to noncustodial parent who quit full-time job to attend graduate school because obligations were measured against earning capacity, not earnings, regardless of good faith).
(115.) See, e.g., In Re Juvenile Appeal, 455 A.2d 1313, 1323 (Conn. 1983) (holding that the sudden unexplained death of one of the custodial mother's six children together with marks on the dead child's body gave the state a compelling interest to intervene on behalf of the remaining five children).
(116.) See Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 GEO. L.J. 887 (1975), in JUDITH AREEN, FAMILY Law: CASES AND MATERIALS 1326, 1328 (4th ed. 1999) (explaining that poverty is no longer considered grounds for state intervention). A neglected child is now defined as one "whose parent ... does not adequately supply the child with food, clothing, shelter, education, or medical or surgical care, though financially able or offered financial means to do so." Id.
(117.) When applying rationality review to a challenged statute, the courts usually presume constitutionality. See, e.g., Bowen v. Owens, 476 U.S. 340, 347 (1986) (upholding seemingly irrational classification of entitlement beneficiaries because legislative branch is entitled to effect reform in increments).
(118.) See Romer v. Evans, 517 U.S. 620 (1996) (striking down amendment to Colorado Constitution prohibiting all state action protective of homosexuals; the amendment failed under rationality review because it was so far removed from its purported objectives that that Court inferred that it must have been created out of animosity for homosexuals).
(119.) See id. at 633-35. See also United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (striking down a state law that excluded from participation in food stamp program any household containing an individual unrelated to any other household member on grounds that Congress' real purpose is to discriminate against "hippies," a politically unpopular group).
(120.) See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105, 2118 (1996).
(121.) This is a particular concern because as of 1997, a federal investigative task force has been responsible for referring CSRA cases to the United States Attorney's Office, whereas before 1997, it was the custodial mother and her attorney who referred the vast majority of cases. Legislators view this administrative change with enthusiasm, as it could result in the prosecution of men whose ex-partners lack the resources to hire an attorney, but in reality, most of the women whose ex-partners have been charged can afford to hire their own counsel. See note 41 supra.
(122.) Meyer v. Nebraska, 262 U.S. 390 (1923).
(123.) Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
(124.) 533 N.W.2d 419 (Wis. 1995).
(125.) See id.
(126.) Cf. Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding that a biological father does not have liberty interest in his relationship with his child where the mother was married to her current husband at child's conception and birth because to permit such a connection would intrude upon the established couple's marital relations).
(127.) See, e.g., Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387, 393 (1984) ("Any effort to protect women from private oppression by their husbands may expose them to public oppression by the state; any effort to keep the state out of our personal lives will leave us subject to private domination.").
(128.) See, e.g., Gary Bauer, The Family: Preserving America's Future, United States Dep't of Educ., Report of the Working Group on the Family (Nov. 1986) (suggesting that the Reagan administration set out a plan to preserve and protect the American nuclear family to preserve the country's foundation of economic growth).
(129.) See, e.g., Barbara Ehrenreich and Frances Fox Piven, Women and the Welfare State, in ALTERNATIVES: PROPOSALS FOR AMERICA FROM THE DEMOCRATIC LEFT 41, 60 (1984) (urging feminists to "lead the way in resisting [attempts] to destroy the welfare state").
(130.) See BROWN, supra note 31, at 169 (explaining that in North America's more militant feminist past, there was skepticism about the value of engaging in "reform politics," often derived from "liberal nervousness" about the appropriateness of state intervention in familial and sexual matters).
(131.) Id. at 160.
(133.) Id. at 162.
(134.) HEGEL, PHILOSOPHY OF RIGHT 114 (T.M. Knox trans., 1958).
(135.) Transcript of Proceedings, United States v. Ballek (D. Alaska 1997) (No. A97-0049-CR) at 1-20, 1-21.
(136.) See United States v. Ballek, 170 F.3d 871, 875 (9th Cir. 1999) (emphasis added).
(137.) BROWN, supra note 31, at 182.
(138.) United States v. Brand, 163 F.3d 1268, 1270 (11th Cir. 1998).
(139.) Id. at 1277.
(140.) Erickson, supra note 40.
(142.) Shelby, supra note 35.
(143.) BROWN, supra note 31, at 167.
(144.) Id. at 166-67.
(145.) Brown's multifaceted vision of the state stands in sharp contrast to political thinkers like Machiavelli and Catharine MacKinnon, who envision the state as deploying only one kind of political power, be it violence or sex. Id. at 174-75.
(146.) Id. at 196.
(148.) See notes 131-133 supra and accompanying text.
(149.) BROWN, supra note 31, at 189-90.
(150.) Id. at 190.
(153.) Id. at 191-92.
(154.) Id. at 191-93.
(156.) Id. at 192.
(157.) See notes 35-36 supra and accompanying text.
(158.) See BROWN, supra note 31, at 194. Despite its disavowals, the state's power and privilege increases through decentralization, which diffuses its operations and sites of control. Brown describes the extent of state regulation in the realm of child support enforcement: "[S]tate-assisted child support guarantees ... invite extensive state surveillance of women's and men's daily lives, work activities, and sexual and parental practices...." Id. at 171.
(159.) MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 101 (1995) ("[M]othering outside of the traditional heterosexual family calls into question some of the basic components of patriarchal ideology.").
(160.) Transcript of Proceedings, United States v. Ballek (D. Alaska 1997) (No. A97-0049-CR), at 1-20, 1-21.
(161.) See note 158 supra.
(162.) See FINEMAN, supra note 159, at 101-02.
(163.) Margaret A. Baldwin, Public Women and the Feminist State, 20 HARV. WOMEN'S L.J. 47, 56 (Spring 1997); see also Hunter Cutting & Sarah Xochitl Bervera, The Silencing of Poverty, EXTRA!, Jan./Feb. 2000, at 22 (noting that the behavior of welfare recipients is often likened to that of criminals; e.g., a return to the welfare rolls is described as `recidivism,' and long term welfare recipients are termed `hardcore').
(164.) See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, [sections] 403 (a)(2), 110 Stat. 2105, 2118.
(165.) U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, CHILD SUPPORT AND ALIMONY: 1989 (1991), at 3 (reporting that out of 3,206,000 single mothers living below the poverty level, 1,590,000 of them had never married their child's father).
(166.) See notes 82-85 supra and accompanying text.
(167.) See BROWN supra note 31, at 171; see also ROBERT H. MNOOKIN, BARGAINING IN THE SHADOW OF THE LAW: THE CASE OF DIVORCE (Centre for Socio-Legal Studies, Oxford Univ., Working Paper No. 3, Feb. 1979) (arguing that the law grants parents broader discretionary powers when making divorce agreements).
(168.) Welfare Hearing, supra note 41, at 44-48 (statement of Donald Skidmore, Investigator, Wayne County, Mich. Sheriff's Dep't) (arguing that criminal child support enforcement has optimal value at the local level).
Catherine Wimberly, Law Clerk for the Honorable Jack B. Weinstein, Senior Judge, United States District Court, Eastern District of New York. J.D., Stanford Law School, 2000. B.A., University of Virginia, 1994. This note was inspired by a bench memorandum I wrote for the Honorable William W Schwarzer, Senior Judge, United States District Court, Northern District of California, when I interned in his chambers during the summer of 1998. This note does not refer to any privileged discussions I had with Judge Schwarzer or his law clerks, and does not contain any judicial work product. My thanks to Professor Janet E. Halley for her encouragement and insight in supervising this project. Thanks are also due to Judge Schwarzer and Professor Deborah R. Hensler for their input and observations. Finally, I am grateful to my father, Ben Wimberly, for his unwavering support.
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|Publication:||Stanford Law Review|
|Date:||Dec 1, 2000|
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