Something is Terribly Wrong With Our Child Support System

February 20, 2003

This letter was written to the jail cell of fathers' rights activist Paul V. Trimboli, who has been protesting for years about the unlawful action of judges in separating children from their fathers.

The letter is from Atty. Rinaldo Del Gallo President, Berkshire Fatherhood Coalition.

When I see a father like you in jail, I know there is something terribly wrong with the system. For 1,000 years, the obligation to support a child was concomitant with the right to have the child. "Supporting a child" meant bringing a child into your home and providing him the necessaries of life.

"Failure to support a child" was a failure to bring a child into your home and provide him the necessaries of life. This was the rule of law from the earliest memories of our Anglo-American system of jurisprudence. It was very rare indeed when the obligation to support was separated from the right of rearing one's own children and having physical custody.

This happened only when the father was ruled unfit, which seldom happened. In that case, custody usually went to the father's family because it was thought that compelling a person to pay for another to raise a child (even if it was the child's mother), was unconscionable.

Today, by contrast, so-called "women's advocates" (though they do not advocate views held by most women) estimate that over fifty percent of all fathers who owe child support are in arrears or are not paying. This only seems to foster clarion calls for more vigorous enforcement from these shrill voices, not an inquiry, as Saint Thomas Aquinas suggested we do, to ask whether we have set the law so high that nobody can meet its expectations. Universal failure beckons an inquiry of the standard, not enforcement of it.

It is worthy of notice that there were very few cases, in fact it was almost non-existent, of father's failing to provide real child support, i.e., the taking in of one's own child and nurturing them. This is not difficult to believe, for God has imbued us with a desire to take in and raise our own children. The lack of real child support, i.e., the taking in and rearing of one's own child, was so seldom an issue that Blackstone's Commentaries of
the Law of England proclaimed that there was no duty under English Law to pay for the support of one's own child.

Children, the treatise commented, ought to feel the need to go out and help support the family. I say this not to suggest that one should not be legally obligated to provide real child support for their child, i.e., take them in and raise them, but as a matter of historical fact. Under the traditional system where the duty to support is not separated with the right to rear and have physical custody, there were so few problems that the law did not see
fit to provide a remedy.

The institution of marriage has dramatically changed in the last 100 years, and very significantly in the last 30 years, from the way it was known throughout the ages. Divorce is common-today, roughly one out of two marriages end in divorce. The ground for divorce has deteriorated to the point of divorce on demand.

Judge Edward LaPointe and Judge David Kopelman of the Massachusetts Family and Probate Court system have recently ruled that a wife can unilaterally ask for a divorce without fault and obtain one based simply upon an "irretrievable breakdown of the marriage." There is no need for a "joint petition." The concept of marriage as a sacred contract that is difficult to extricate oneself from has totally ended. Wives today are pretty much free to leave at will when "they have had enough." Even a marriage based upon fault is far more likely to be awarded today than it was 100 or 120 years ago.

Apart from these legal developments, divorce is infinitely less socially stigmatizing then it once was, and there is a vast array of misinformation in the current culture pollution suggesting that is not harmful to children.

Less than five percent of all marriages ended in divorce in the 19th century. Today, half of them do. The final transformation is that payments to the wife have gone from the nomenclature "alimony," "spousal support" or "support" to "child support." Therefore, when money is not furnished, one does not say that one is not paying "spousal support," or one is not supporting his ex-wife, one can say "one is not supporting his children."

We live in a culture wherein failure to pay what was traditionally called "alimony" or "spousal support" (which could not survive modern notions of equality and the women's role in the work place) have been supplanted by the term "child support." Therefore, the full moral derision of failing to support your child in the traditional sense of taking them in and rearing them, has been put upon, not sending your former spouse a paycheck. The
institution of marriage and its concomitant rights and responsibilities, for better or worse, is not recognizable from its historical roots as little ago as the nineteenth century.

We already have our hands full with trying to prevent punitive child support levels and the judicial chicanery of "imputed income," wherein judges base child support levels on literally (and this is the proper use of the word "literally") imaginary incomes. That is why I offer no opinion in this letter, or elsewhere for that matter, about the propriety of the child support order in the first instance. I do not want people secretly suspecting that child support is not being paid out of philosophical objection rather than inability.

Our problems are already very serious, even accepting the fundamental premise that fit fathers should lose their children and be forced to pay the other support (however you may wish to term it) in order to raise the children. On the one hand, fathers who cannot pay the amount of child support because it is based on a fantasy salary are being punished for an event that they cannot control anymore than their ability to be ten-feet high.

For those that can actually pay for child support but refuse to work, the argument is, "We know that tax levels and child support levels are so high that we have totally destroyed any incentive to work. Therefore, instead of a profit incentive of a day's pay for a day's work, we will make you work not through the incentive of profit but by threat of jail, and we will confiscate nearly all of or much of your paycheck." While the apologist for imputed income would certainly make their arguments much more euphemistically, this is the argument. Just two days ago I met a father who made $400 a week ($10 per hour). After taxes and child support, he was left with $160. We have one member that was making $960 per week before being injured. He was left with $250. Judge Geofrion increased child support so that now he is only left with $150 per week. Some weeks, there is nothing left.

Our own child support statutes do not put child support in terms of "after tax income." They chose to put it in terms of "gross" so as to not allow the embarrassment be known about the truly exorbitant levels of child support.

Simple math shows that a child support order of "17% gross," is a real world order of 28% given a real tax rate of 40%. If one makes $100 per week and is left with $60 per week after taxes (income, social security, sales tax, property, excise, etc.), and $17 is removed from the $60, this is 28% of the after tax income of $60. The number of 17% is bandied about to make child support sound reasonable. It is not a real number. The average father pays out of every $100 per week he earns, $17 in child support and $40 in taxes, totaling $57 and leaving him with $43. This is for just one child and does not address imputed income or past-due child support (commonly called arrearages). Confiscation of 70%, 80% or even all of one's salary is not unknown and is common.

Indeed, it would be folly to recognize the modern institution of marriage as "ancient" in origin. It bears little resemblance to its historical counterpart and constitutes shacking-up until one party tires of the relationship, which is the mother 70% of the time. The father has little to no rights to the children upon the dissolution of the marriage at the mother's will. This bears almost no resemblance to a solemn contract that was seldom broken, wherein cause for escaping its strictures was a very high standard, and wherein the right to physical custody of children was not separated from the duty to support.

Whatever women of the 19th century suffered, and there were numerous wrongs too lengthy of mention here (and by which are in no way denied), seldom was one of them forced into separation from their child. Indeed, the 20th century father experienced and his counterpart in the dawn of the 21st century continues to experience the loss of the fundamental right to raise one's child at a far greater magnitude and for infinitely less cause then suffered by women of the 19th century. Women almost never suffered the loss
of their children in the 19th century, and when they seldom did, they never had to pay for the indignity, no matter if she inherited millions.

I do not here argue that fathers should not be compelled to pay what is now called "child support" even if they are fit parents, fit husbands, and totally opposed to separation. Rather, I simply observe as a historical fact the change and that marriage as we know it, is not the same, without commentary on the propriety and moral footing of this vast change. The knowledgeable reader may make of it what he or she will. That is theirs to
ponder. I simply am a conduit of information. Now you sit in jail. I do not know the circumstances of your imprisonment, but I do know this. We have gone from a culture that values the father/child bond to a culture that attacks fathers, calling them "deadbeat."

We have gone from a culture that would have thought it perverted to compel a fit father to pay another to raise his children, to a culture that would find it perverted for a father not to submit to such an arrangement. We have gone from a culture that made it impossible to get a divorce to a culture that embraces it and provide to women legal institutions that make it possible, through Department of Revenue attorneys, who will vigorously fight for weekly emoluments to those that want to break the once solemn contract of marriage. We also have groups like "Western Mass. Legal Services" who are
more aptly called "Western Mass. Women's Legal Services."

They use the defense of children as their principle argument, as if fostering divorce was protecting children. Today, there is seemingly an ethical duty to extol the so-called "virtues and advantages" of divorce.

Marriage is claimed to be a "trap" by these few extremists who claim they speak for the majority of all women, though they speak for a distinct minority.

In the 19th century, the cost of defending (not instituting) a divorce was a "necessary" that the father was compelled to pay under the doctrine of necessaries. We then, as a society, subsidized the individual defending against the divorce. Today, the individual seeking the divorce is subsidized. This bespeaks a dramatic cultural shift.

Finally, in Massachusetts by statute in the 19th Century, the grounds for divorce were tried by a jury. Today, not only are the grounds for divorce not tried by a jury, but also whether someone has willfully failed to pay what is now called "child support" is not tried by a jury. Men are being imprisoned without the benefit of a jury trial. Juries are far less likely to find that a father has willfully not desired to pay child support, and a fundamental right dating back to the Magna Charta has been obliterated.

It was once the rule that in order to punish for "civil" contempt, the "key" had to be in your hands. Once you complied, they had to let you out of jail. The purpose of civil contempt was to compel compliance, not punish. Given that the key was in your hands, trial without a jury was more defensible.

While in theory this is still the law, in practice it has gone by the wayside. All too often, child support orders become ransoms where mother and fathers (i.e., the child's grandparents) or friends cough up the money in order to not see their loved one go to jail.

The judge then pats himself or herself on her back for "protecting children" and demonstrating to themselves that the father "really had the means to pay child support but was refusing."

There is an alternative to the "winner take all" sole custody regime where Dad goes to jail if he cannot pay the child support system. It is called shared parenting-where both parents take financial responsibility and are equals before the law. It is a system that truly embraces gender equality and the sacred role both parents play in raising a child. Many of Christ's followers found themselves in prison. You are in good company.

- Your Brother in the Cause of Father's Rights, Rinaldo Del Gallo.

Editor's Comment: Many feminists, including Betty Friedan and Germaine Greer would disagree that American women were unhappy in their lives. Friedan wrote: "Until, and even into, the last century, strong, capable women were needed to pioneer our new land; with their husbands, they ran the farms and plantations and Western homesteads. These women were respected and self-respecting members of a society whose pioneering purpose centered in the home. Strength and independence, responsibility and self-confidence, self-discipline and courage, freedom and equality were part of the American character for both men and women, in all the first generations.

"The women who came by steerage from Ireland, Italy, Russia and Poland worked beside their husbands in the sweatshops and the laundries, learned the new language, and saved to send their sons and daughters to college. Women were never quite as Ofeminine' or held in as much contempt, in America as they were in Europe. American women seemed to European travelers, long before our time, less passive, childlike and feminine than their own wives in France or Germany or England.

"By an accident of history, American women shared in the work of society longer, and grew with the men. Grade- and high-school education for boys and girls alike was almost always the rule; and in the West, where women shared the pioneering work the longest, even the universities were coeducational from the beginning.

"The identity crisis for women did not begin in America until the fire and strength and ability of the pioneer women were no longer needed, no longer used, in the middle-class homes of the Eastern and Midwestern cities, when the pioneering was done and men began to build the new society in industries and professions outside the home." The Feminine Mystique at p. 323.

Germain Greer said that the farmwomen of America were "authentic" with an "unadorned love of family." See Freedom Will Conquer Racism and Sexism by J. Edward Pawlick.