Misery Business

Second Families by Glenn Sacks

Tennessee Appellate Court Sends Message: Second Families Count
By Dianna Thompson and Glenn Sacks

 

The Tennessee Court of Appeals sent an important message last week--second families count.

The court ruled in a case in which a Memphis father faced an 80% increase in his child support, and the father argued that the expense of raising two children in his current marriage should be considered in figuring how much he should pay to support a third child from a previous relationship. Current child support guidelines prohibit financial considerations for children from second families, except under extreme circumstances. The court found that these guidelines "violate the equal protection guarantees of the federal and state constitutions."

The court's recognition of the needs of children of second families is long overdue. According to Jan Larson, author of Understanding Stepfamilies, one out of every three Americans is now either a stepchild, stepparent, a stepsibling, or some other member of a stepfamily. US Census Bureau reports that over half of all first marriages eventually end in divorce, and roughly 75 percent of divorced men and women will remarry. Yet our laws, family courts, and public discourse generally ignore second families and their concerns.

For example, some states allow a second wife's income to be factored in when determining the child support a divorced dad pays to his first wife. Thus second wives' income is used to support their stepchildren, even in cases where first wives are not working.

Second families are also affected by the way state agencies and family courts mistreat divorced dads. For example, many of the fathers who fall behind on their child support payments do so because they lost their jobs or became disabled. Yet, according to Elaine Sorensen of the Urban Institute, even among fathers who experience income drops of 15% or more, less than one in 20 are able to get courts to reduce their child support obligations. While these fathers were unable to work their arrearages mount, along with interest (10% or more in many states) and penalties, and federal law prohibits these debts from being forgiven retroactively.

Many other fathers are the victims of child support billing errors--which audits and evaluations have shown comprise a third of all arrearages in some states and counties--and it is very difficult to get errant child support agencies to correct their errors, cease collection efforts, and refund mistakenly collected money.

In addition, states often change their child support guidelines, sometimes quickly doubling or even tripling the child support owed.

These factors create a situation in which many divorced dads and their second families are trapped in a spiral of child support debt, interest, and penalties--a spiral which often forces second families to empty their savings, sell their homes, or declare bankruptcy.

Many divorced dads who have second families work overtime or work second jobs to try to meet their first family support obligations and to help their second families. Yet courts often use these fathers' sacrifices against them by raising their support obligations based on the extra income. Thus fathers are often trapped into working long hours and being away from their families.  In addition, often the overtime hours that were available one year are often unavailable the next, thus saddling divorced dads with support levels they cannot meet.

Second families' other grievances include "move-away moms" (custodial mothers who move their children hundreds or even thousands of miles away from their fathers) and custodial mothers who interfere or deny a divorced dads' visitation and access to his children.  These often make it impossible for men to be fathers to the children of their first marriages, and also necessitate costly legal battles which can drain second families' financial resources. Second families are often left feeling that they must always maintain a permanent defensive posture, and that they have lost control over their own lives.

The Tennessee court's ruling is a sign of the increasing awareness that the needs of all children, regardless of birth order, must be considered. What is needed now are new child support guidelines which balance the needs of children from first families with those of second families. After all, what parent would dare to put the needs of one child above the other?

The Wonderful Bradley Amendment

The Wonderful Bradley Amendment

Bradley Amendment
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In United States law, the Bradley Amendment is the common name given to any of a number of amendments offered by Senator Bill Bradley, the most notable of which is the amendment to 42 U.S.C. § 666(a)(9)(c) which requires state courts to prohibit retroactive reduction of child support obligations.

The Amendment was passed in 1986 to automatically trigger a non expiring lien whenever child support becomes past-due.

* The law overrides any state's statute of limitations.
* The law disallows any judicial discretion, even from bankruptcy judges.
* The law requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to make the notification or regard for their awareness of the need to make the notification.

But, like any other past-due debt, the obligee, typically a mother, may forgive what is owed to her.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an offer in compromise.

The amendment was intended to correct a perceived imbalance between the power of the obligee (usually the mother) and the obligor (usually the father) during subsequent child support disputes. It had been alleged that a significant number of men were running up large child support debts and then finding a sympathetic judge, often in another state, to erase them.

The Bradley Amendment is credited with increases in the collections success of wealthy debtors including a New York plastic surgeon who owed $172,000, a professional athlete who owed $76,000 and a yacht company owner who owed $50,000. The Bradley Amendment standardizes the treatment of interstate child support disputes (estimated at 40% of all cases according to Geraldine Jensen, president of the Association for Children for Enforcement of Support).

According to Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement, the child support system collects "about 58% of current support due." The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999 - however this information is based on data supplied only by the custodial parent so it be viewed with extreme doubt). Some believe that the process can never collect the full amount because a high proportion of obligors are unable to make the required payments. According to Ford Foundation Project Officer Ronald B. Mincy, between 16 percent and 33 percent of obligors are "turnip dads" (obligors earning less than $130 a week). According to one study 38% of non-custodial parents not paying child-support said they lacked the money to pay.[1]

The Health and Human Services numbers above omit closed cases. Typically, cases are closed after four years of inactivity. Open or closed, past-due child support automatically triggers a non expiring lien.

[edit] Controversy

The Amendment has been a controversial law and has resulted in several notorious examples of unintended consequences including:

* A veteran of the first Gulf War who was captured in Kuwait in 1990 and spent nearly five months as an Iraqi hostage being arrested the night after his release for not paying child support while he was a hostage.
* A Texas man wrongly accused in 1980 of murder. After 10 years in prison, the man sued the state for wrongful imprisonment. The state responded with a bill for nearly $50,000 in child support that had not been paid while in prison.
* A Virginia man required to pay retroactive child support even though DNA tests proved that he could not have been the father.

In September 1999, Marilyn Ray Smith, the Chief Legal Counsel for the Massachusetts Department of Revenue, Child Support Enforcement Division gave the following testimony before the US House of Representatives.

As you know, under the Bradley Amendment enacted by The U.S. Congress in 1986, a child support obligation becomes a judgment by operation of law as of the date that that it is due and unpaid. In addition, under Section 368 of PRWORA (42 U.S.C. 666 (a) (4)), an administrative lien also arises by operation of law against any unpaid child support. It is therefore not necessary to return to court after each payment is missed to get past-due support reduced to a judgment in order to obtain a lien or enforce a judgment. This means that a child support agency can move quickly to seize income and assets of a delinquent noncustodial parent without first passing through a judicial or quasi-judicial hearing process."

In 2003, Keith McLeod, author of The Multiple Scandals of Child Support, testified before the Committee on Ways and Means that

"The 1986 Bradley Amendment to Title IV-D forbids any reduction of arrearage or retroactive reduction for any reason, ever. This reinforces the approach that inability to pay is no excuse. Needless to say, there are endless stories of men who are now crushed by a debt they will never be able to pay because they were:

* In a coma
* A captive of Saddam Hussein during the first Gulf War
* In jail
* Medically incapacitated
* Lost their job but were confident of another so did nothing until it was too late
* Did not know they could not ask for retroactive adjustments and waited too long
* Cannot afford a lawyer to seek adjustment when adjustment was warranted
* Wouldn't use the legal system even if they could, feeling it alien from their world, so don't ask for a reduction when the legal establishment expects them to.

Some say this measure is a violation of due process and cruel and unusual as it removes the use of human discretion from dealing with individual cases, not to mention removing human compassion. But non-custodial fathers do not have the money to fight a constitutional case."

As of 2004, the Bradley Amendment was being challenged as unconstitutional and was the subject of a repeal effort.

* February 2006 the court case has been dismissed and Congress has made no visible effort to reform the Bradley amendment.

In Case You've Never Heard Of Megan Williams

Megan Williams was rescued Tuesday when sheriff's deputies, acting on an anonymous tip, went into the rural hills of West Virginia and found the badly abused woman at a mobile home.

Six people -- including a mother and son and a mother and daughter -- have been charged with an assortment of crimes in the case.

Frankie Brewster, 49, was charged with kidnapping, sexual assault, malicious wounding and giving false information during a felony investigation. Her son, Bobby R. Brewster, 24, who allegedly brought Megan to the mobile home, was also charged with kidnapping, sexual assault, malicious wounding and assaults during the commission of a felony. Danny J. Combs, 20, was charged with sexual assault and malicious wounding; George A. Messer, 27, was charged with assault and battery; Karen Burton, 46, was charged with malicious wounding, battery and assault; and her daughter, Alisha Burton, 23, was charged with assault and battery.

The accused are being held on $100,000 bonds each.

According to a criminal indictment, the perpetrators raped Megan, doused her with scalding hot water, made her eat dog and rat waste and drink from a toilet. Her captors also stabbed the victim in the leg several times. During the attacks, Megan was repeatedly called a racial slur.

The Logan County, W. Va., sheriff described the crime as "something that would come out of a horror movie."

Public defender Dwyane Adkins, appointed to represent Bobby Brewster, and public defender Betty Gregory, appointed to represent Karen Burton, declined comment. The other defendants' lawyers were either in hearings or did not return telephone calls Wednesday.

In West Virginia, kidnapping charges carry a maximum penalty of life in prison. Sexual assault charges carry a sentence of up to 35 years, while a hate crime charge carries a penalty of 10 years.

Since 1991, police have filed 108 criminal charges against the six.

Frankie Brewster was charged in 1994 with first-degree murder, but pleaded guilty to lesser charges of manslaughter and wanton endangerment. She was released from prison in 2000 after serving five years in the death of an 84-year-old woman, court records show.

Bobby Brewster was accused in March of attacking his mother with a machete, according to court records. The outcome of those charges - domestic assault, brandishing a deadly weapon and obstructing an officer - was not immediately clear.

He also faces domestic battery and assault charges after a dispute involving Megan Williams in July. A court date has not yet been set.

The Brewsters were constantly fighting, drinking and disrupting the otherwise quiet hollow in southern West Virginia, Roy and Charlotte Williams said.

``Sometimes we'd hear music playing really loud,'' Charlotte Williams said. ``We could tell you what the words to the song was, it was so clear. It would go for three or four days, 24 hours a day sometimes.''

Roy and Charlotte Williams said they were concerned the case would unfairly taint Logan County as racist. They said the county was a place where people go to church together and hold yard sales.

``You never, ever expect this to happen anywhere near you. Never,'' Charlotte Williams said.

Residents say that even where racism lurks, it is restrained.

``This goes beyond prejudice,'' said the Rev. Audie Murphy Sr., president of the Logan County branch of the NAACP. ``It's actually evil in its heightened form.

``I feel it's not a direct indication of the community in its entirety,'' he said, ``because there are great people here, such as the one who notified the authorities that the girl was being held captive.''

A Woman’s Story about 9/11...and about MEN, who this country seems to shit on so much...

We had been inside it for six or seven hours, and were heading up Church Street in the Con Edison hard hats a detective from a suburban New York police department had handed us and with the tatty used paper masks we had picked out of the rubble and donned earlier now around our necks. Rosie's running shoes were sodden and her soles blistering; my feet mud-streaked in the open-toed, high-heeled sandals I had cunningly chosen to take with me.

Above us, the sky was as clearly delineated as good and evil: Black and poisonous over the fallen World Trade Center and environs, cloudless and blue just a little to the north.

As we approached the first barricade, beyond which to our huge delight we saw some of our press colleagues (including at least one of our competitors from Toronto) stranded and waiting to greet us, we passed a line of firemen, all of them sooty and exhausted, who were trudging straight back into what seemed to us the very heart of darkness.

Rosie came to a dead stop as they passed; I swear my mouth actually fell open. One of them had a face like an angel.

"Did you see that?" she asked.

I had, of course, and cite the young fellow as my lust-filled illustration of the secret untold story that is the tale of the Twin Towers and the Sept. 11 horror -- that this one, this wonderful triumph of the human spirit, belongs squarely to men.

There were, of course, plenty of women among the 6,000-plus victims still buried beneath the WTC and the Pentagon, and plenty of illustrations of how well they conducted themselves at the moment of truth, calling home to say brave goodbyes. And it is certainly true that among the estimated 300 firefighters who were lost, and among the police and ambulance personnel who perished, were some women who died as heroically as their male colleagues. And it is true, too, that among the fire and police who have worked so tirelessly in that immense crematorium in the endless aftermath are some women.

But you know what?

Most fire and police departments resolutely remain predominantly male.

Most of the firefighters and police who were killed were men.

Most of the most astonishing acts of courage that we know about, from the man who in one of the towers stayed with his wheelchair-bound colleague so he would not die alone to the male passengers who apparently rushed the hijackers on flight 93, were performed by men.

Most of the people doing the dirtiest work -- day after day driving the big trucks in and out; clearing the site of giant chunks of debris, concrete and metal; moving the earth; picking up tiny pieces of skin and muscle that thus far form the single biggest category of remains and placing them into little envelopes and the little envelopes into zip-up body bags -- were and are men, in the main blue-collar, working-class boys.

Even most of the wondrous political leadership, from New York Mayor Rudy Guiliani to George W., has come from men.

And but within the ranks of journalists -- and except as witnesses, we properly do not count -- almost everyone, almost everywhere you looked, was reverting to ancient, pure and decidedly gender-stereotyping form.

Somewhere, I thought to myself with considerable satisfaction, Michele Landsberg, one of Rosie's colleagues at the Star and an unrelenting denouncer of all things male and subscriber to the notion that women are made of more noble stuff, is weeping.

Women made sandwiches and served 'em, walked about with trays of hot dogs (and even, incredibly, packets of mustard and relish), ministered to the sick, consoled the grief-struck and looked on, with worshipful sidelong glances, in wonder at the men.

And ohhhh, what men they were, and are.

They were unyielding, and yet not stupidly stoic; I cannot count the number of times I saw firemen or police officers wrap their arms around one another or clamp big hands to one another's shoulders, and often saw tears behind goggles and once or twice streaming down grime-covered cheeks.

They were affectionate and tender with each other, but strong and fierce in their resolve. They outlasted even the police sniffer dogs, who grew depressed by the continuous lack of "reward" -- that is, not finding anyone alive -- and had to be given breaks and played with and petted.

The men were quiet and shy but willing to speak and never inarticulate and occasionally near-poetic (Why do firemen rush into buildings? I asked one captain outside the little midtown station that is home to Engine Co. No. 8 and Ladder No. 2 of the 8th Battery and where 10 of the 50 men were lost. "Who knows?" he replied with a weary little smile. "It's a secret.")

The raw physical courage of all those who had raced to the scene and headed into the very towers that they, of all people, with their knowledge of structures and the sort of damage that a fireball could inflict upon skyscrapers, would best know were at risk of collapse, was enormous; their collective selflessness, putting women, children and civilians before themselves, utterly astonishing.

I am old enough to remember what some call the "feminization" of these very organizations, and the military, that began all over North America.

As the rhetoric went then, integrating women into these places would be good for the men, would gentle their inherent violence and risk-taking, temper the soaring levels of testosterone, somehow better the culture.

The truth is, it did nothing of the sort. If anything, the women who became firefighters and police and soldiers took their cues from the men. And in the end, there remains such comfort in this, in knowing that, push come to shove, should you find yourself in crisis, in a burning building or a car crash, the ground treacherous and shifting beneath your sandal-shod feet either literally or metaphorically, a burly figure will be coming for you, and he will be driven enough to find you and strong enough to lift you up and away.

There is nothing to better here. There never was.

I Hate Gender Biases

Police squad cars all across America bear the slogan, "There's no excuse for domestic violence." Yet there is one situation in which the media and the public seem to feel that domestic violence is sometimes excusable — when the perpetrator is a woman, and the victim is a man.

Imagine a woman trapped in a loveless marriage with a jealous, potentially violent husband whom she believes may be cheating on her. She stays in the marriage because she fears she could be separated from her children should they divorce, and finds understanding, companionship and passion in a relationship with a coworker. Her husband finds out about the affair and goes on a violent, jealous rampage, slaughtering her in front of her daughter as the daughter begs him not to kill her mother.

There would be no tears or excuses for the killer, and nobody would dare to proffer the fact that his wife had been cheating on him as a justification for the murder.

These are the facts of the Clara Harris case, with the genders reversed. Yet the reaction has been quite different.

The media on both the left and the right have poured derision upon the murder victim, referring to David Harris as a "rat," a "lying, cheating scumbag" and Clara Harris' "unfaithful dog of a husband." Commentator Susan Estrich asked, "Who could blame [Clara] for getting into her Mercedes and running him over?" and seemed a little sad that the Harris County criminal trial jury did. Conservative talk show host Joseph Farah penned a column entitled "Free Clara Harris!" in which he wrote, "I'd give her a medal. … She did the right thing. That creep deserved what he got."

Even the prosecutor in the murder trial, Mia Magness, expressed her disgust, saying that Clara, instead of killing David by her own hand, should have "[done] like every other woman … get his house, car, kids — make him wish he were dead."

Lorna Mullens, the jury forewoman in the recently concluded wrongful death trial, expressed sympathy for Clara but said she decided that Clara was responsible for David's death because, after all, "She kept running over him. She could have stopped after she hit him the first time."

CBS portrayed Clara as a pitiable, betrayed wife in the 2004 movie Suburban Madness, and Oprah Winfrey sympathetically interviewed the sobbing Clara from prison in 2005. Of the 354 news stories covering the wrongful death trial that are indexed on Google News, 233 refer to David Harris as Clara Harris' "cheating husband." Not one mentions the phrase "domestic violence."

The truth behind the Clara Harris case has come from the mouth of a child — David's daughter, Lindsey. Only 16 years old at the time of the murder, Lindsey rode in the front seat with Clara and begged her not to kill her father. Lindsey has denounced the widespread media sympathy for Clara, saying:

"[Clara has appeared] in print and on television to persuade the viewers that she is actually the victim, but she is no victim. What she did was the ultimate act of selfishness, caring only about obtaining revenge and thinking not one bit about how her horrible act was going to affect me or my brothers, Brian and Bradley. Anyone who shared my ride in the car that evening, seeing my dad's face as he was about to be hit, and experiencing the horrible feel of the car bumping over his body would understand that this murderess deserves no sympathy."

Bobbi Bacha, vice president of Blue Moon Investigations, the private detective agency Clara had hired to spy on David, also conducted an investigation of Clara. Though the media have largely ignored it, in November 2002 Bacha presented the criminal court with several audio tapes on which witnesses claim that Clara was also having an affair before she killed David.

Lindsey says that Clara mistreated and neglected David, and that her father often confided in her how lonely he felt. Coupled with Clara's temper and evident capacity for violence, David had ample reason to want to get out of the relationship. Instead of letting him go, Clara killed him.

While many see the Clara Harris case as one of love and betrayal, it is in fact a garden-variety domestic homicide. Clara Harris is no better than high-profile wife-killer Scott Peterson. Perhaps Clara is even worse — at least Peterson spared us the crocodile tears.

It Doesn’t Make Sense. It’s Not Fair & It’s Not Right

The television station shows three general laborers, three construction laborers, a landscaper, a salesman and two tradesmen, most of them Latino men with dour expressions on their faces. Are they the featured men in a report about hard times for blue-collar workers in the state of Texas? The hopefuls for a local job training program? No—they are Texas Attorney General Greg Abbott's "Top 10 Most Wanted Child Support Evaders."

The 10 men collectively owe nearly $700,000 in back child support. Not one appears to have an education, and the big wage earner in the group is a plumber. Abbott says he "singled out" these men because they "have the ability" to pay their child support but "refuse to do so." One wonders what the financial condition of those not "singled out" is.

For the past month Abbott has been publicizing lists with the men's photos and biographical information. The lists have been published or reported on in dozens of Texas media outlets.

Abbott recently proclaimed the list a success, after he arrested the landscaper--who owed $109,747--the salesman, and one of the construction laborers. The two highest-ranked evaders still on the lam are the welder, who owes $130,796, and one of the general laborers, who owes $94,107. Few, if any, are asking the obvious question—how did men of such humble means end up owing so much money?

While none on Abbott's list would or should qualify for Father of the Year, the arrearages are likely created in large part because the child support system is mulishly impervious to the economic realities working people face, such as layoffs, wage cuts, unemployment, and work-related injuries. According to the Urban Institute, less than one in 20 non-custodial parents who suffers a substantial drop in income is able to get courts to reduce his or her child support payments.

Abbott's office backhandedly acknowledges the difficulties men in these situations face, advising obligors "it is best to get a lawyer, if you can afford one, to handle your attempt to change the amount of child support you owe." Yet how many unemployed blue-collar workers can afford to hire an attorney at $200 an hour or more to represent them in a child support case?

By federal law, child support orders cannot be retroactively modified, no matter how mistaken, misguided or ridiculous. Even men who fell behind on their child support because they had heart attacks, broken legs or cancer cannot have their arrearages eliminated. And much of the arrearages owed by Abbott's "Top 10" accrued before 2002, when Texas charged obligors 12% interest, one of the highest interest rates in the country.

Also, under Texas law, an obligor who owes only three months of past-due child support can have his driver's license or other professional licenses suspended, interfering with his ability make a living.

To be fair, Abbott's "Top 10" list is not unusual. Federal Office of Child Support Enforcement data shows that two-thirds of those behind on child support nationwide earned poverty-level wages; less than four percent of the national child support debt is owed by those earning $40,000 or more a year.

In the past 18 months, "deadbeat parents" have been the targets of similar, highly-publicized law enforcement actions in Virginia, Kentucky, and Arizona. Virginia's "Most Wanted" list was topped by a laborer, a carnival hired hand, and a construction worker, who collectively somehow owed over a quarter million dollars in child support. Kentucky's list sported only one obligor with an education, and the most common designation for occupation was "laborer." Near the top of Arizona's list was a maintenance man who owed $90,223, an unemployed man of no known occupation who owed $54,298, and, best of all, a roofer who owed $240,581.

While Abbott's list no doubt contains a few bad actors, the larger problem lies not with non-custodial parents, but instead with the child support system. Arresting low-income parents is neither fair nor useful. What's needed instead is an overhaul of the system, so that blue-collar workers aren't turned into criminals because they've failed to pay obligations which are beyond their reach.