Should ‘Lost Cause’ Payor Really Have Custody of Child?

Posted: July 1st, 2015 by

Lisa Shapson, The Legal Intelligencer (online)

On May 29, the president signed into law the Rape Survivor Child Custody Act, permitting grants to states that allow the mother of any child conceived by rape to petition for termination of her rapist’s parental rights. Although Pennsylvania’s custody statute, 23 Pa.C.S.A. Section 5329, allows judges to consider rape as a factor in determining the best interests of a child in custody matters, parental custody rights have been awarded if the rapist-father is not considered a danger to the child. But, it looks like that is about to change. Mothers in Pennsylvania may soon have a companion act since both the Pennsylvania House and Senate passed the Rape Survivor Child Custody and Support Act on May 8 and June 24, respectively. Pennsylvania’s act takes things one step further by allowing termination of the rapist-father’s custody rights while still requiring him to pay child support.

Although appropriate for rape cases, this is a bit of an interesting twist since Pennsylvania does not take into consideration whether a parent is paying child support when determining custody in cases that do not involve rape. Here’s why: A payor’s child support award may be zeroed out and terminated because enforcing the order became a “lost cause” in the eyes of the court, with no effect on that parent’s custodial rights. That’s a tough sell to a client who receives support, especially with payors who go to extreme lengths to avoid paying, such as working under the table or not working at all.

To start a support action in Pennsylvania, Pa.R.C.P. 1910.3 summarily indicates that the action may be brought by a person or entity who may owe a duty to support a child or spouse either on their own or on the minor child’s behalf. Pa.R.C.P. 1910.20 indicates that a support order shall be enforced by income withholding as required by law in the manner provided by Pa.R.C.P. 1910.21, as well as providing for the many remedies that are available to a payee should the payor fail to pay.

One of those remedies is that the court may increase the amount of the monthly support payment to include a payment toward arrears at a rate to be determined by the court without a separate hearing, specific notice to the payor or a specific finding on a failure to pay. In Philadelphia, that rate is often 10 percent of the monthly obligation and is usually included within the original order, which is why no additional notice to the payor is required for garnishment of an additional amount up to that percentage. The court may also withhold or seize periodic or lump sum payments of income from a government agency including unemployment compensation, Social Security, retirement benefits and disability benefits. Periodic or lump sum payments from private agencies such as insurance carriers, private employers and workers’ compensation benefits may also be withheld or seized, along with judgments, settlements and public or private retirement funds already in pay status. Although all of these remedies are subject to the requirements of Rule 1910.21, each is an automatic tool of enforcement used by domestic relations officers.

The court may also impose liens on real property; attach and seize a payor’s assets that are held by a financial institution; reduce and execute a judgment against the payor for the unpaid support amount; initiate contempt proceedings; report the amount of the overdue support to the major consumer reporting agencies; and suspend occupational, commercial and individual driver’s licenses, as well as recreational licenses. Issuing a bench warrant and/or immediate incarceration may also occur. (See Pa.R.C.P. 1910.22-1910 .26.) In addition to the remedies that are available to the payee through local domestic relations branches, payees are also protected by the remedies that are authorized by federal and state law, which allow the IRS and the state of Pennsylvania to intercept a payor’s tax refund or lottery winnings for payment of support arrears. Support arrears that a payor accrues are not dischargeable in bankruptcy.

So, if courts are furnished with all of these enforcement remedies, why is it that so many payees have had their support orders zeroed out and terminated because the payor was considered a lost cause?  If the payor does not formally work, does not have a driver’s license, does not own a home, bank account or care about his or her credit rating or spending time in jail, then that payor is deemed a lost cause and, most times, the support award is terminated and arrears are set at zero. In other words, the court allows deadbeats to be deadbeats. For most payees, that creates a hardship where they rely on the system to enforce the financial obligations of the non-paying parent whom the system cannot protect against. We cannot take away anything from people who have nothing.

The double-edged sword for most of my clients is that they probably would not care if they never saw another dime from the other parent; the issue for many of them is why nonpayment of child support does not factor into custody. Why is it in the best interest of the child to have a relationship with a payor who is purposely avoiding the financial benefit of two incomes toward his or her child’s upbringing?

As a family law practitioner, it is embarrassing to tell clients that failure to pay child support is not a custody factor and that custody court is the one stage where the deadbeat parent can play the role of parent of the year, but it is true. By no means am I suggesting that impoverished or lower income parents should not have custody. Impoverished or lower income parents who are trying to do the best they can for their children are different than the individual who is employable, but who is willfully choosing not to be employed, or not to be employed legally to avoid a support obligation.

The individuals whose child support orders are terminated as lost causes should be held to task. Having a history of willfully failing to provide for a child financially is just as important a factor in a child’s best interest as a history of drug or alcohol abuse. Willful failure to provide child support should be relevant to a determination of which parent is more likely to provide a loving and stable environment for the child as well as which parent is more likely to attend to the daily physical, emotional, developmental and educational needs of the child as opposed to using that child as a pawn or to alienate the other parent. If a parent is willfully not paying support, just how is that parent likely to promote and attend to the needs of his or her child?

Most judges I appear in front of do not handle custody cases in a vacuum despite the fact that they are often not privy to the support side of the case. However, in custody courtrooms, I have had my questions objected to and sustained whenever I try to bring out the fact that the parties’ child support order was terminated as a lost cause. Before terminating these non-enforceable child support orders, I would like to see judges issue orders directing the payor to get job counseling, consult with an employment agency for both temporary and permanent placement and provide copies of letters to prospective employers. The problem is that, at least in Philadelphia, the bench is overwhelmed with what is already on their plate.

Only after extensive collection attempts and follow-ups with regard to employment efforts would a lost-cause finding be easier news to deliver. And, a specific finding of failure to pay child support via judgment documenting the amount in arrears forgiven, with prejudice, and lodged against that parent’s credit report would help too. This way, the termination order itself documents willful nonpayment and can be presented in a custody hearing when the deadbeat parent wants to play parent of the year. For some, a custody and credit report component with regard to these types of judgments would get nonpayors off the stage and onto the best interests of the child platform.

Reprinted with permission from the JULY 1, 2015 issue of THE LEGAL INTELLIGENCER (online). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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