TOOL OF THE DAY: Child Support…How to End Cash for Kids
CATEGORY: Family Law Power
Child Support is the State's Cash Cow
Child support has become a cash cow for States and the Federal government. And it has become extremely difficult for a person to challenge this hungry beast. So, we have created a simple formula for protecting your cash, your assets, and your precious time with your child.
First, you should know your rights with respect to your duty to your child. Second, you should know what the States believe they have the authority to do. Third, you should know what protects your rights. Fourth, you will apply the formula. These are what gives you the power to challenge anything in place that is empowering authority improperly.
Rights vs Duties
You have the right to the care, custody, control, and companionship with your child. You “only” have a duty to provide for your child to the basic minimum standards. e.g. food, clothing, shelter, medical care, and reasonable safety. Where does this duty come from? You can find this in DeShaney v. Winnebago as “the state only has a duty to provide for basic human needs under the proper triggers “e.g., food, clothing, shelter, medical care, and reasonable safety”,” The word “only” is important here because many parents have had duties imposed on them at much higher levels. Courts have ordered parents to support their children and their former spouse to the level of the lifestyle of the marriage. Courts have ordered parents to pay for the purchase of expensive sports cars and bar mitzvah's, etc.
The State's Rights
These are the things you should know about what the State believes they have a right to do, what rights they have, and what rights they don't have. Let's start with a right they don't have. The due process clause of the 14th amendment is “a limitation on the State's power to act.” This is important because when the State imposes a duty on you they have to be doing so with the proper authority to act.
Pull the statutes that the State is using for ordering child support. Include this statute in your pleadings that you have intent to challenge it. Be ready to provide a short summary of the legal theory and bases you have for that challenge.
Challenging the State’s authority might start with something like this:
Wetmore v. Markoe says “The law interferes when the husband neglects or refuses to discharge this duty and enforces it against him by means of legal proceedings.” Therefore it would be safe to say that if the State is depriving a parent of direct care, custody, control and companionship equal to the other parent of their child that this is improper grounds for imposing an indirect duty to provide care through a third party. You have not “discharged” this duty yourself. And the only way that the State can force you to “discharge” your duty to your child is through a proper fitness hearing. Also called adjudication hearing as you have read in the Michigan State Supreme court ruling, In Re Sanders.
NOTE: Whenever you use old cases make sure you Shepardize them to confirm they are still valid and controlling. Watch this video to help you understand what this is and how to do it.:
This takes us to the next prong of what authority the State has or doesn’t have, or may believe that they have. In Re Sanders is a recent case, June of 2014, where a father challenged something used just like a statute is used, called the “One-Parent Doctrine.” Most of our courts use “Best Interest Doctrine” but pretty much assume the same. They assume that if one parent comes to the courts that both parents are now subject to the court over-riding all of their individual parental rights.
It’s not important that the “One-Parent Doctrine” and the “Best Interest Doctrine” are not exactly the same. What is important is that the case that overturned the One-Parent Doctrine in Michigan used the principles behind the United State Supreme Court cases you find close to the back of our book, “NOT in The Child’s Best Interest” that state that until a parent is proven unfit or a clear and present danger, the parent is superior to the court.
What does this mean with regards to child support? Well, this means that the court must apply proper due process and meet specific triggers before they can begin to impose punishment on you. In other words, before they get to control your decisions, they have to prove that the decisions you made placed you under their control. Most of the time, this is very simple in criminal law. You know the law, if you break it, and they bust you and convict you, they get to take control of you and make decisions for you. In family law, they try to make this much more confusing. That’s precisely why we started writing to you.
What Protects Your Right to Challenge Child Support
Let’s start with the due process statement that I made earlier: The Due Process clause of the 14th amendment is “a limitation on the State's power to act,” First of all you must know that the family court probably isn’t even thinking about this. And they most certainly don’t believe that anything is limiting their ability to randomly pick a parent, make one noncustodial and one custodial, and then force a child support order on the NCP. So it is very important that you understand this.
Many people are going around saying the due process clause protects them and then they don’t know how it protects them. Some think that this means that the State has a duty to force child support on one of the parents or force the other parent to stop doing something they don’t like with the child.
The due process clause is supposed to prevent the Court from depriving you of the equal rights that you have with anyone else without proper due process of law.
However, the due process clause does not require the State to protect you from private party actions. (You can search for cases on this on scholar.google.com later. Stay with me here for now though. Let’s finish this up before you go off onto other issues.) There was a case where a suit was brought by black individuals against white ones who beat them up. They sued on the grounds that they were being beaten for trying to exercise their civil rights. The federal government stated that since it was not the government beating on them, they could not do anything about it. They said that it was the State's decision as to whether or not they would pass laws regarding this type of conduct. This was before the 14th amendment passed.
But the 14th amendment still applies to the State and not private individuals. If the due process clause does not require the State to protect you from private party actions, then how can you say they have to protect you from the other person keeping your child from you? Well, that’s easy, the State does have a duty to provide you with reasonable protection to be able to exercise your inalienable fundamental rights. In other words, they have to protect the rights that the United States Constitution guarantees. That's why most laws protect you from being murdered, tricked, taken advantage of, etc. Why is that? That’s so that you can pursue freedom, liberty, and property, correct? Yes.
Each State is free to make laws to protect individuals from private actions. If they created a law that says that you have a right to not have another person interfere with your time with your child, then you can ask the State to enforce that law. Every State has laws regarding child possession interference, so it's pretty safe to say that the States recognize your right to be protected from private individuals keeping your child from you.
Now think in terms of your rights to your child as inalienable fundamental parental rights. These might be a slot lower than the right to life itself, but it’s pretty high up there. Most States by the way also have a constitution of their own that provides you with protections in addition to the United States Constitution protections — some State constitutions even have more protections built into them than the Constitution provides you with — Florida is one. (Most parents and their attorneys are not using this to protect them however.)
For the most part though the States make laws and those are the things you have a right to be protected from regarding private parties.
But, here’s where it starts to get a little tricky, the legislators cannot pass laws that violate the substantive limits that the due process clause has placed on them. So they cannot pass laws that limit your ability to raise your child without proper due process.
The federal government interprets the rights that you have protected by the Constitution. The States decide how they will handle those rights when those rights are challenged.
So if you go back to all of those cases that say you have rights to support your child directly until you discharge them (which by the way you discharge them through the decisions that you make – either by willingly saying I give up this right or by making the choice to commit a crime…and in most family law cases neither one of these have happened), then those rights theoretically are protected until that time. But the States are not telling you that you have those rights and most the time parents are forfeiting them unknowingly. Then State action becomes almost automatic.
So how do you protect your rights when the legislators have passed laws that violate due process?
To protect those rights that the State believes they owe you no protection for because it is another private party bringing the action or because they believe that you are forfeiting them, or they believe that their statutes are authorizing them to override your rights, you add the following to your notes when creating your arguments for arguing against being charged child support:
The State must prove that you have failed to satisfy your duty. You must prove that the Court has this burden and that any statutes authorizing them to skip this are unconstitutional.
This can be a slippery slope too because the Court generally will assume that the measure of whether or not you have discharged your duty is by determining who has the child or who will be awarded the child. Then it is declared that the parent who has possession of the child is supporting the child more than you financially and therefore is owed child support.
That’s not the correct measure. You have to have the measure right. The measure again is what we stated earlier, “Have you discharged your duty to the care, custody, control, and companionship of your child” or has the other parent kept your child from you? And “Have you discharged your duty to support your child directly and take care of their basic needs for food, clothing, shelter, basic medical care, and safety” or is the other parent just imposing costs on you because they forced you into not being able to provide these things directly to your child? And has the legislator passed a statute that crossed the limits of what a legislator was allowed to pass? By re-framing what the court is addressing, you are controlling the story to the court.
You are showing the court that the question to ask is not who is caring for the child right now, and who is the child living with, but should the court be protecting your ability to exercise your rights? The court would protect you if someone was trying to kill you. The courts would protect you if you were robbed. The courts would protect you if someone, anyone else stole your child from you. The courts should be protecting you from the other parent taking your equal time and rights as well. And don’t forget to attach the Equal Protection paper to your arguments so that the court understands that when they don’t protect your rights to care for your child directly, they are failing to protect the child’s right to be influenced by both parents directly and equally as well.
Child Support Formula
So the simple challenge child support formula you use to keep this simple and easy for the court is this:
- List your rights and support them. (The court won’t know them if you don’t.)
- Address the elephant in the room – List the statutes authorizing the court to award child support and a short summary of what trigger is needed prior to the court applying that statute. Also point out the inconsistencies between the statutes and your rights. [Go here to see how to organize the statutes and address the inconsistencies: Child Support Rule of Laws chart]
- Control the story to the court. (Paint your picture and stick with it. Have a way to go back to your core message any time the other side tries to divert the court onto something else.)
Meet me back here tomorrow for another daily blog tool entry.
(Want to learn more of your rights, we cover them in our book: “NOT in The Best Interest of The Child.” So if you want to learn more about your rights so you can argue them more effectively, you can get the book here.)
[You can learn more about this and how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
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*Whenever using old case law, remember to Shepardize. If you are not familiar with how to do this go to our next blog post here and watch the video: Child Support…Identifying the Legal Issues and Organizing Your Winning Argument.”
Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Website: www.fixfamilycourts.com
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