Itemization of Child Support

Ampersand from Alas, a Blog linked to a bunch of my recent fathers' rights posts, especially the ones about the misogynistic group Equal Rights for Divorced Dads. Amanda from Mouse Words wrote this in his comments:

"Gosh, line-by-line accounting of how a woman they're not married to any longer is spending money she is owed by him? What next--our employers get a breakdown of how we spend our salaries?

And of course, it does give one pause to realize that if these men had learned a long time ago that this kind of controlling behavior is wrong, they might not have had their wives finally throw in the towel and leave."

Since she brought up itemization - that line-by-line accounting of child support demanded by plenty of fathers' rights activists - I thought I'd write a bit about it here.

The kind of itemization demanded by fathers' rights activists has been rejected numerous times by the courts.

Supporters of itemization are purposefully vague about how to do it because they don't want anyone to know that they really want to have the ability to approve and veto decisions made by the custodial mother. That's why you hear them say they want to "stop fraud in its tracks": that they say the mother is spending the money on herself while the children "are dressed in rags," and that they want to "make sure the money goes to the children." Even though they may say they want the receipts sent to court for review, having the ability to send the receipts in the first place gives them excessive control over the woman's decision-making.

Having the ability to scrutinize the custodial mothers' receipts is only the tip of the iceberg. If the non-custodial dad sees things in the receipts of which he does not approve, he wants to be in a position to force the custodial mother to purchase what he wants. If he thinks the rent/mortgage is too high, he wants the ability to tell her to move a less expensive home. If he doesn't like the food she purchases, or if he doesn't like her purchasing clothing at yard sales because he thinks the kids are "dressed in rags," he wants to be in a position to make his ex spend "his" money as he sees fit. Itemizing is a gross violation of the woman's privacy. It is all about controlling how women run their households.

Child support is not about counting every stitch of clothing and morsel of food purchased for the child. It isn't about hoarding receipts to later be scrutinized by a supposedly neutral third party, or (especially) by the non-custodial dad himself. Itemizing every little thing is completely unnecessary. The mother is providing in an ongoing manner the basic shelter and care covered by child support. The child is not supported by air. The mere presence of the child automatically drives up basic costs such as food, clothing, utilities, and space (It's safe to assume that the child will not live in a box) that an adult would not have to pay if that child was not around. So, "discussions" of ways to itemize child support, even if on the surface they seem fair and equitable, are an exercise in futility. Holding "discussions" of itemization to please the disgruntled because they want to "make sure the money is spent on the child" (read: "they want to control how their ex's run their households.") are more obviously a waste of time.

Welfare reform (not feminism) has led to common misconceptions about child support: namely, that child support is "owed" to the child, that child support is out-of-pocket expenses needed by a child, or a number of objects "owed" to a child, and that child support is really "hidden alimony." Yes, "child support" is owed to the child, and the person who is providing it is the custodial parent who must provide that support regardless of the trouble, the expense, the inconvenience, or effort required to provide it. Child support is reimbursement paid by a noncustodial parent to a custodial parent for the tangible and intangible costs as well as costs not directly related to the child that the custodial parent must incur (over and above costs incurred by the non-custodial parent) on an ongoing and continuous basis. This includes opportunity costs -- things like the custodial parent earning less because the custodial parent is required to be at home when school ends, or the custodial parent cannot take a higher paying job elsewhere (such as a job promotion/relocation, especially if a move-away request is denied) because that would interfere with the non-custodial parent's visitation, or the custodial parent earns less and is passed over for promotions because the custodial parent is unable to taken on business travel due and other business-related duties to childrearing responsibilities over and above that of the non-custodial parent. A custodial parent can't be in two places at one time. These costs are not about what happened in the past; i.e., they are not "hidden alimony" disguised as child support. Child support is about the present and the future. All of that is why itemization or a "fund" to squirrel away child support that can only be accessed if purchases are approved (another meddling fathers' rights recommendation for itemization) are unnecessary. Child support is not and has never been designed to cover everything, nor is it to be reduced to specific "things" purchased.

When there are gross violations - when it is very clear that the children are not being properly taken care of - each case is dealt with individually. There is no need to require custodial parental accountability across the board.

Much of the following information about itemization may be found in Laura Wish Morgan's article "The Custodial Parent's Duty to Account to The Non-Custodial Parent For How Child Support Money Is Spent." Some states include itemization of child support in their laws under certain conditions, but itemization is not done in the controlling and privacy-invading way fathers' rights activists want it done.

The following states rejected accounting for several reasons: custodial parent holds child support as a fiduciary for the child not for the father; no statute authorizing accounting; undue burden on courts to supervise custodial parent; undue burden on custodial parent; accounting interferes with custodial parent's decision-making authority; invasion of privacy.

Indiana
Mississippi
Georgia
Arizona
North Carolina
Missouri
Wisconsin

INTERFERENCE WITH CUSTODIAL DECISION-MAKING AUTHORITY
UNDUE BURDEN ON CUSTODIAL PARENT (Wisc.)

Uniform Marriage and Divorce Act § 408(a), 9A U.L.A. Part II 437 (1998) (the custodian may determine the child's upbringing, including his education, health care, and religious training).

2 Homer H. Clark Jr., The Law of Domestic Relations in the United States § 20.2 at 482 (2d ed. 1987) (authority to make decisions concerning the child's care, education, religion or training, is attributed to the child's custodial parent).

Resong v. Vier, 459 N.W.2d 591 (Wis. 1990), the court stated:

[T]he custodial parent should not lightly be stripped of her ability to make decisions concerning rearing her child. Eliminating a parent's right to make spending decisions is more akin to altering the parent's custodial powers than it is to a modification of the amount of child support....

In the absence of factual findings suggesting the mother was incapable or unwilling to wisely spend the child support money, it was error for the court to dictate how those funds be spent.

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INTERFERENCE WITH CUSTODIAL DECISION-MAKING AUTHORITY (BURDENSOME)(Fla.)

Rico-Perez v. Rico-Perez, 734 So. 2d 1177 (Fla. 3d DCA 1999), echoed the principle that an accounting represents an unwarranted intrusion into the custodial parent's financial affairs. In this case, the husband claimed that his monthly child support payments of $6,750 were being misused, and he sought an appointment of a guardian of his minor son's property in the circuit court. The court held that before a guardian could be appointed, he must seek an accounting in the family court. The accounting, however, must not unduly intrude into the custodial parent's affairs or be otherwise burdensome.

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UNDUE BURDEN ON CUSTODIAL PARENT (Ind.)

Olive v. Olive, 650 N.E.2d 766 (Ind. Ct. App. 1995), the court considered the Indiana statute authorizing an accounting "upon a showing of proper necessity." There, the court stated that it would be loath to order an accounting, because it would place an undue burden on the custodial parent:

We recognize that although a custodial parent may be able to account for direct costs, such as clothing and school expenses, it may be extremely difficult to accurately account for indirect costs, such as housing, transportation, utilities, and food. Child Supp. G. 6. Thus, the authors of the Child Support Guidelines do not recommend that an accounting be ordered as a matter of routine. Child Supp. G. 6.

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UNDUE BURDEN ON COURTS (Mo.)

D.M.S. v. P.E.S., 526 S.W.2d 361 (Mo. Ct. App. 1975), the court stated,

Without benefit of established precedent or direct case authority, the husband faults the trial court for not ordering the wife to render a yearly accounting to it concerning the amounts to be paid to her for child support. This point is without merit. To impress a continuing duty upon the already overburdened trial judges of this state to constantly monitor the expenditures of funds awarded for child support would be a specious requirement for at least two reasons. One, it would require them to summarily anticipate abuses by a wife respecting such awards; two, it is unnecessary because of a viable remedy for abuses in fact by way of a motion to modify.

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NO STATUTE (Az)

re Marriage of Marce, 636 P.2d 1225 (Ariz. Ct. App. 1979), the court stated,

The remaining claim of misappropriate relates to alleged misappropriation of child support monies. Appellant contends that the appellee did not use all of the child support payments directly for the children's benefit, but used them for personal investments, and that therefore the appellant is entitled to a reduction of his obligation. We are aware of no requirement that a custodial parent make a direct accounting of all child support monies to the end of showing that all were directly spent on the children. If in fact the custodial parent no longer is in need of child support payments, or the payments being made are excessive, the use made of the payments might be a factor to be considered in weighing modification. The assertions here, however, do not establish any basis for modification.

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NO STATUTE (NY)

re Diann P., 86 Misc. 2d 844, 383 N.Y.S.2d 1014 (Fam. Ct. 1976) ("Respondent's request for an accounting of all support payments received by petitioner, and the use thereof, must be denied, as no issues relating to support and alimony are before this court").

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VAGUE SUSPICIONS NOT GOOD ENOUGH (Fla.)

Bacardi v. Bacardi, 727 So. 2d 1137 (Fla. 3d DCA 1999), the husband filed a request for an accounting, alleging that the wife was using money paid as child support to support her live-in boyfriend. The trial court ordered the accounting, but the appellate court reversed.

The appellate court held that because the parties' Marital Settlement Agreement stated that child support would be used to pay a variety of expenses, "including, but not limited to, the household expenses, utilities, maintenance, food in the home and away from home, transportation, lessons, entertainment, the housekeeper, etc.," it was evident that the parties had intended that the scope of legitimate child support expenditures be enormous in scope. The court concluded,

More significantly, no showing has been made in this case to warrant such a monumental intrusion into Kimberly's financial records.

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VAGUE SUSPICIONS NOT GOOD ENOUGH (Del.)

Dunfee v. Mace, No. F-8651 (Del. Fam. Ct. May 15, 1991), refused to allow an accounting, even though the petition had alleged that the child had ill-fitting clothes and clothes that were out of season. Moreover, the general allegation that the support recipient could be using the money for drugs, alcohol, and other purposes was insufficient without specific allegations with specific facts that the child support is not being used for the child and is being used for illicit purposes.

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VAGUE SUSPICIONS NOT GOOD ENOUGH... PLUS CHILDREN ARE THRIVING (Ind.)

Kovenock v. Mallus, 660 N.E.2d 638 (Ind. Ct. App. 1996). In that case, the husband testified that he was concerned that child support payments were being used to subsidize a business and the living expenses of the wife and her present spouse. In particular, the husband alleged that the wife and her present spouse had traveled to Europe, where the wife's family apparently resides, and had purchased two vehicles since the dissolution, although they reported a total household income of between $18,000.00 and $19,000.00 in 1993. The husband did not contend that the basic needs of the children were being ignored, but he maintained that one child was not provided with swimming lessons and that both children were sometimes dressed in shabby clothes. The appellate court concluded, "[h]ere, the trial court found that the basic needs of the children were being met. After Husband had rested, the court concluded that there was no evidence of "serious" impropriety, such as the misappropriation or dissipation of support payments. We agree with the court that where, as here, the children's basic needs are met, some disagreement between the parties concerning whether adequate resources are being devoted to the children's particular "wants" as distinct from their actual needs is insufficient, by itself, to support a showing of necessity for an accounting."

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VAGUE SUSPICIONS NOT GOOD ENOUGH (NY)

Schwarzman v. Schwarzman, 88 Misc. 2d 866, 388 N.Y.S.2d 993 (Sup. Ct. 1976), the ex-husband requested an accounting from the ex-wife. The court did not dismiss the idea altogether, but rather held that there was no good cause to required such an accounting:

Furthermore, when the court contemplates the cost of raising four infant children on Long Island under current economic conditions and any minimal standard of living, one must acknowledge that $15 weekly per child is a mere pittance. With this in mind, the court denied from the Bench the plaintiff's application for an accounting from his former wife as to how that pittance was expended in behalf of each of his four children. Such a request defies common sense and this court will not allow such harassment.

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VAGUE SUSPICIONS NOT GOOD ENOUGH (NY)

Alexandre v. Davis, 90 Misc. 2d 368, 394 N.Y.S.2d 757 (Sup. Ct. 1976) ("Defendant has failed to establish a triable question of fact with respect to his counterclaim for an accounting")