Monday, October 20, 2008

The Indianapolis Star Beats A Dead(beat) Horse - My Ten Ideas on Reforming Our Divorce & Child Support Laws

Tuesday's Indianapolis Star contains an AP article entitled "Deadbeat parents face license suspension." In the article, it is announced that there is a "new program" by Governor Mitch Daniels to suspend the drivers' licenses, hunting and fishing licenses of those non-custodial parents who are at least $25, 000 behind in child support.

My first observation is that it is already the law that the prosecutor's office can order driver's licenses suspended for far less than being $25,000 behind in child support. I had a client, who was only a few thousand behind in support, who had his license suspended by an order the prosecutor's office sent to the BMV. When he lost his license, he also lost the job he had lined up. I have a real problem with the prosecutor's office, which is essentially the attorney for the custodial parent, being able to unilaterally order driver's licenses suspended. Further, I doubt the legality of Indiana's law allowing the prosecutor to suspend licenses. The United States Supreme Court has held that driving is a right and that prior to deprivation of that right the driver must be provided due process. There is no due process in the prosecutor's office sending an order to the BMV to have a person's license suspended. It would seem only right and fair that this be one of the things a judge can order after reviewing the circumstances.

This story though does provide the opportunity for me to spout off on my ideas regarding family law legal reform. These ideas come from 20 years of practicing law, fortunately not personal experience as a custodial or noncustodial parent or a party to divorce. Without further ado, here are my reform ideas:

1. Emancipation should be at 18 in Indiana.

Note: Indiana is only one of three states that has emancipation at 21 years of age. Almost every state in the union is 18.

2. Emancipation should be automatic.

Note: Right now many counties, even though they have information on the child's birth, will not stop child support at 21. Instead, the non-custodial parent has to hire an attorney to go to court and point out that the child is 21 to stop support.

3. Divorced parents should not be required to pay their children's college expenses.

Note: Indiana again is only one of 3 states that a parent can be required to pay a "child's" college expense past the age of 18. In fact, in Indiana, the divorced parent can be required to pay child support up until, I believe, the age of 25. (Of course, if you remain married, the court has no authority to order the parents to pay college expenses for their child.) My research shows we are the only state in the union that has that rule.

4. Visitation and child support should be linked.

Note: I often see custodial parents who have no problem withholding visitation, scream the second the child support check is late. Custodial parents would be less likely to withhold visitation if they knew it could affect their child support check. Likewise, noncustodial parents would be encouraged to pay child support knowing that was a requirement to get visitation.

5. The Prosecutor's Office should decline to represent custodial parents in the collection of child support if the custodial parent is not complying with visitation orders.

Note: Ideally, if the Prosecutor's Office is going to enforce child support orders, it should also enforce visitation orders. I do realize though that the Title IV-D federal money received by the prosecutor can only be used for child support collection. As a result, I did not make the suggestion that the Prosecutor enforce both, but rather that if a custodial parent comes to the Prosecutor's Office, he or she should not expect help collecting child support if that person is not following the order on visitation.

6. The Prosecutor's Office should not be using IV-D money to enforce orders relating to "children" over 18 getting college expenses paid.

Note: I had a case in one of the donut counties where I was up against a Deputy Prosecutor over a dispute involving divorced parents paying for the college expenses of a 21 year old. The law though says Title IV-D money received by prosecutors can only be used for collection of child support and college expenses are not child support under the law. Because Indiana is only one of 3 states where divorced parents can be ordered to pay college expenses, this abuse of Title IV-D money hasn't come up much. I'm certain though using that money to collect college expenses is illegal.

7. Require that child support be paid into a particular account that is maintained by the custodial parent for the benefit of the child or children.

Note: Compliance with child support orders would be much better if noncustodial parents actually thought the money was being held and spent for the benefit of the children.

8. Require annual accounting of expenditures from the child support account.

Note: Same as above. Noncustodial parents would feel a lot better about paying child support if they actually had some sort of assurance the support was being spent on the children. With modern technology, you could even set it up where noncustodial parents could monitor the account on-line.

9. Driver's licenses and other types of licenses should not be suspended without a court order.

Note: I've discussed this above. Giving the Prosecutor's Office, which is essentially a advocate for one side, the authority to make the decision, unilaterally and without review, to suspend a noncustodial parent's license, is a prescription for abuse and unfairness.

10. There should be a "cooling off" period before marriage similar to the 60 day cooling off period prior to a divorce.

Note: I've always said that conservatives are wrong that it's too easy to get divorced. The problem is that it's too easy to get married. Many people would reconsider their decision if they spent an adequate time to reflect on it.


Diana Vice said...

Excellent commentary, and thanks for making the point that driving is a right. There are many sheeple out there who believe it is a mere privilege. The right to travel is as American as apple pie. You have way too much common sense. I hope its catching.

Paul K. Ogden said...

That driving is a "privilege" and not a "right" nonsense originated as a slogan put forth by the BMV. They still have it on the BMV's website.

What people don't understand is that the whole "driving is a privilege" is merely a slogan without any legal effect whatsoever. If you meet the qualifications to have a license in this state, you have a right to that license and to drive. Period. Sure you have to meet certain conditions, but that's true with regard to other rights as well. For example, voting, which requires that you be 18 years of age, a U.S. citizen, live where you are being registered at, etc. We don't say voting is a "privilege" and not a right.