Thursday, January 16, 2014

Child Support - Garnishment or Payroll Deduction?

In 2009, about two-third of all child support collected for the year nationwide came from employers deducting those support payments from employee's or individual independent contractor's income payments. Some of these deductions came about by court order,  some by administrative order and some by voluntary agreement.

The last, voluntary agreement, lacks an essential characteristic of a typical garnishment, which is involuntarily imposed by law. However, many of the non-voluntary child support withholding orders lack another common characteristic of garnishment. It is not necessary that the non-custodial parent with the child support obligation be in default before the withholding order is imposed. Being in arrears or in non-compliance with a child support order is not always a precondition to a wage or payment withholding order. 

Over the last thirty years, or so, child support has changed from a purely personal and family court judicial matter into a highly legislated, regulated and automated interstate child support enforcement system. The changes have been all for the good, no doubt, but it has left many of the traditional precepts of garnishment in the dust. I can only conclude that calling the child support collection process a garnishment, a withholding or a paycheck deduction is not important. It is what it is. 

But, standard garnishment laws and procedures cannot be, and are not, wholly divorced from the modern child support collection apparatus. Many of the older limits and priorities still apply.

More importantly, there is a certain social stigma attached to the idea of wage garnishment in general, and to a child support wage garnishment in particular. The common mistaken perception of child support collection by payroll deduction sometimes throws out the pejorative,  "deadbeat dad," when the facts of the situation simply do not support any suspicion that a non-custodial parent is in any way personally remiss in meeting child support obligations.  It's just the way the system works. An individual may be wholly faithful and diligent in meeting child support payment obligations and yet be subject to a involuntary order requiring wage withholding.

In Kentucky, upon request, the Commonwealth's Cabinet for Health and Family Services, will assume the support collection and disbursement responsibilities for any dependent child, regardless how the support obligation originated. The support obligation could result from administrative action because the child's custodian is receiving public assistance; it could come from a judicial order in a divorce or paternity cause of action; or it could result from a voluntary agreement. It does not matter.

In fact, the Cabinet for Health and Family Services (CHFS) can, upon request, also enforce and collect spousal support where:
  1. There is an existing spousal support order;
  2. The spouse or ex-spouse is living with the dependent child, and;
  3. CHFS is already collecting support for the child.
The Family Support Act of 1988 revised the old Aid to Families with Dependent Children (AFDC) program requiring the wages of a non-custodial parent to be subject to wage withholding, "regardless of whether support payments by such parent are in arrears."

The Uniform Interstate Family Support Act, drafted by the National Conference of Commissioners on Uniform State Laws in 1992 and subsequently adopted by every state, allows child support orders to be enforced across state lines.

The Personal Responsibility and Work Opportunity Reconciliation Act 0f 1996 established the framework for each state to create a central child support collection unit, the creation of standardized child support wage withholding orders, and imposed a requirement that all businesses of a certain size timely report newly hired employees to a statewide central registry to facilitate tracking non-custodial parents to new places of employment.

These days, imposing and enforcing child support obligations is part of a very big and interlinked nearly-automated machine. It is similar to wage garnishment in many ways, but in many other ways it is quite different.