The state has the right to prohibit parents from binding a minor to an employment contract based upon the theory that parents cannot 368 CHILD LABOR LAWS... CROSS REFERENCES Labor Law; P
Trang 1may deny a subsequent request for permission
to move if the move is viewed as an attempt to hinder the other parent’s visitation
Parental Kidnapping
Parental KIDNAPPING occurs when one parent deprives the other of his or her legal right to custody or visitation by illegally taking the child out of the jurisdiction It is outlawed by the federal Parental Kidnapping Prevention Act (28 U.S.C.A § 1738A[Supp 1993]), which applies the FULL FAITH AND CREDIT CLAUSE of the U.S
Constitution to child-custody cases, meaning that each state must abide by custody decisions made by another state’s courts if the other state would be bound by those decisions The law was enacted to respond to cases in which one parent leaves the state that has jurisdiction
However, in 1998, the U.S Supreme Court ruled in Thompson v Thompson (484 U.S 174,
108 S Ct 513, 98 L Ed 2d 512) that the existence of two different state-custody decrees
is not, itself, a reason for federal involvement under this law
The Parental Kidnapping Prevention Act often works in concert with state laws, such as state adoptions of the Uniform Child Custody Jurisdiction and Enforcement Act, in order to facilitate the return of a child to the state that has proper jurisdiction Many custody provi-sions in the federal law are similar to those in the corresponding state laws
Termination of Custody
Most types of custody end when the child
is emancipated (i.e., considered a legal adult)
by becoming self-supporting, by marrying,
or by reaching the AGE OF MAJORITY as specified
by state law At that point and not before then the family court loses its power to determine custody
FURTHER READINGS Bahr, Stephen J., et al 1994 “Trends in Child Custody Awards: Has the Removal of Maternal Preference Made
a Difference? ” Family Law Quarterly (summer).
Minnesota Joint Physical Child Custody Presumption Study Group 2009 “Minnesota Joint Physical Child Custody Presumption Study Group ” Text available online at http://www.leg.state.mn.us/lrl/lrl.asp; website home page: http://www.leg.state.mn.us/ (accessed August 19, 2009).
Stahl, Philip M., and Leslie M Drozd 2007 Relocation Issues
in Child Custody Cases Philadelphia, PA: Haworth Press.
CROSS REFERENCES Illegitimacy; Gay and Lesbian Rights; Family Law; Parent and Child.
CHILD LABOR LAWS Child labor laws include federal and state legislation that protects children by restricting the type of work they perform and the hours during which they are employed
The specific purpose of child labor laws is
to safeguard children against harm generally associated with child labor, such as exposure to hazardous, unsanitary, or immoral conditions, and overwork Child labor legislation primarily applies to business enterprises, but in some statesNONPROFITactivities are within the purview
of the law
The federal law controlling child labor is the
FAIR LABOR STANDARDS ACT of 1938 (FLSA) (29 U.S.C §§ 201 et seq.), administratively
regulat-ed through 29 C.F.R Part 570 et seq The law is enforced by the U.S LABOR DEPARTMENT Wage and Hour Division Federal law provides the basic structural framework for certain prohibi-tions or restricprohibi-tions placed on the employment
of children Regulations further delineate mini-mum requirements to include age restrictions,
MINIMUM WAGE provisions, occupational restric-tions, hours of work restricrestric-tions, and certain prohibited fields or occupations (e.g., hazardous occupations, liquor and lottery sales, or occupa-tions involving moving vehicles or power-driven machinery) Moreover, all states and the federal government require that children have work permits on file with their employers that certify their ages (29 C.F.R § 570.9) Each state also has its own set of child labor laws that may further prohibit or restrict employment of children The laws vary in detail from state to state, particularly for those states where seasonal or agricultural employment is high However, federal law preempts state law, and so all state laws must comply with all federal minimum requirements
Specific provisions of the particular child
LABOR LAWgovern theAGE OF MAJORITY Some laws permit minors to be employed in certain activities if their parents satisfy stated conditions concerning supervision, control, and approval The state has the right to prohibit parents from binding a minor to an employment contract based upon the theory that parents cannot
368 CHILD LABOR LAWS
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children
Cursory directions to subordinates are not
sufficient to fulfill the employer’s duty to
enforce child labor regulations Where such
directives are followed by further violations,
sterner measures controlling the actions of
subordinates are required
In some states, it is unlawful to employ
children under a specified age in certain
activities without an employment certificate
issued and filed in accordance with the law
An employer’s failure to comply with this
requirement makes the employment illegal
Technical errors, such as the lack of a detailed
account of the child’s duties in the employer’s
pledge of employment, will not have this effect
or invalidate the certificate
Regulations also relate to occupations that
are or may be potentially dangerous, extremely
hazardous, or harmful to a child’s health or
morals, as defined by statute or judicial
decision In one state a log-loading machine
was held to be within the meaning of a law that
barred the employment of minors in businesses
using dangerous machinery
The violation of child labor regulations can
subject thePERPETRATORto criminal prosecution
or render the employment contract illegal In
appropriate circumstances an INJUNCTION, a
court order that commands or prohibits a
certain act, may be issued against a violator to
stop the illegal conduct
In 1919 Congress passed the so-called Child
Labor Tax Law (40 Stat 1057), which imposed a
10 percent excise tax on persons or
establish-ments that employed children under the age of
14 or children between the ages of 14 and 16
working more than eight hours daily or more
than six days per week However, in Bailey v
Drexel Furniture Co (259 U.S 20, 42 S Ct 449,
66 L Ed 2d 817 [1922]), the U.S Supreme
Court invalidated the law as unconstitutional,
agreeing with a lower court that“the provisions
of the so-called taxing act must be naturally and
reasonably adapted to the collection of the tax
and not solely to the achievement of some other
purpose plainly within state power.”
Liability for child labor law violations
depends upon the provisions of the law As a
general rule, the owner of the business is liable,
whether it is a natural person, a corporation, or
a joint association An employer is usually not
liable if a minor is assigned to work on the premises in violation of law by an INDEPENDENT CONTRACTOR, a person whose work methods are not controlled by the employer Some states, however, will impose liability on the owner under such circumstances
The employer’s knowledge that the child is within the prohibited age is not an element of the offense The offense is committed if the employer does not know but should have known by the exercise of reasonable diligence that the child was underage The employer’s good faith—his honest belief—is no defense even though the child misrepresented his age
A person who hires a child in violation of law will be liable if the child is injured The duration of the employment and the status of the child as an employee are irrelevant
The parents will not be held liable merely because they assented to the hiring of their child
by another Only the injured child will recover damages, reparations for injury caused by another, for third persons are not within the class of persons that the laws were enacted to protect
During the 1990s a new issue of child labor moved into the forefront: imported foreign goods that were produced by foreign sweatshops employing child labor legally, though repugnant
in the United States As more domestic or multinational corporations opened facilities in foreign countries—where labor costs were cheaper—the problem worsened The FLSA prohibits sweatshops The U.S DEPARTMENT OF LABORconsiders a workplace to be a sweatshop if
Two young boys at work in a textile mill Before child labor laws went into effect, many companies employed young people at low wages, often exposing them
to overwork, as well as hazardous and unsanitary conditions.
LIBRARY OF CONGRESS
CHILD LABOR LAWS 369
Trang 3it violates two or more of the most basic labor laws, for example, child labor, fire safety, minimum wage, or overtime hours President
BILL CLINTON signed EXECUTIVE ORDER 13,126,
“Prohibition of Acquisition of Products Pro-duced by Forced or Indentured Child Labor,”
on June 12, 1999 Senator Tom Harkin (D-IA) has been at the forefront of legislative initiatives, introducing the Child Labor Deterrence Act every two years during the 1990s However, the act, which would prohibit the importation of manufactured or mined goods that are pro-duced by foreign children under the age of 15, was never enacted
FURTHER READINGS Executive Order No 13,126 1999 Federal Register 64:115:32383 (June 16).
Given, Olivia 1999 “An Indictment of Sweatshops.” Child Labor and Sweatshops San Diego: Greenhaven.
Harkin, Tom 1999 “The United States Should Ban Imports
of Products Made by Children ” Child Labor and Sweatshops San Diego: Greenhaven.
Labor Department Report on the Youth Labor Force Bureau
of Labor Statistics (BLS) Publication, 2000.
CROSS REFERENCES Labor Law; Parent and Child
CHILD MOLESTATION Child molestation is a crime involving a range of indecent or sexual activities between an adult and
a child, usually under the age of 14 The psychiatric condition that causes an adult to perform such acts is pedophilia It is important, however, to keep in mind that child molestation and child sexual abuse refer to specific, legally defined actions They do not necessarily imply that the perpetrator bears a particular psychological makeup or motive For example, not all incidents
of child molestation are perpetrated by pedophiles;
sometimes the perpetrator has other motives these actions and does not manifest an ongoing pattern
of sexual attraction to children Thus, not all child molestation is perpetrated by pedophiles, and not all pedophiles actually commit child molestation
Regardless of the terminology, it is illegal for
an adult to touch any portion of a child’s body with a “lewd and lascivious” intent Usually, consent is not a matter of consideration and is not available as a defense to a charge of child molestation Even in cases in which it can be proven that the minor victim was a willing participant, a sex act or improper touching is still a crime because children cannot legally
consent to anything Criminal penalties are severe for those convicted of child molestation According to the JUSTICE DEPARTMENT, there are approximately four million pedophiles in the United States It is difficult, however, to accurately assess the number of child molesters because many child molesters are not caught The Justice Department reports the alarming statistic that one in four girls and one in seven boys will experienceSEXUAL ABUSEbefore the age
of 18
There is no single profile that accurately describes or accounts for all child molesters Many variables exist among individuals in terms
of their personal characteristics, life experiences, criminal histories, and reasons for committing such offenses One common misconception is that molested children grow up to become child molesters themselves In fact, most childhood sexual abuse victims do not become perpetra-tors In some instances, if children are sexually victimized and are abused in other ways as well, they may later molest a child Likewise, a sexually abused child who also exhibits antiso-cial behavior may go on to commit acts of child molestation, although having inadequate social and interpersonal skills does not inevitably result in individuals abusing children sexually Few criminal offenses are more despised than the sexual abuse of children, and few are so little understood in terms of the number of offenses committed, the proportion of the population who commit offenses, and the risks
of re-offense One reason is that sex crimes committed against children and teenagers are believed to be widely underreported This assumption is supported by the reports of both sex offenders and sexually abused children Offenders commonly report fewer incidents of child molestation than those for which they are ultimately convicted And children are often loathe to report an incident because they are ashamed or they fear reprisal
Most convicted sex offenders are eventually released, giving rise to concerns overRECIDIVISM Recidivism rates are affected by a number of factors, including differences in legal guidelines and statutes in the states; opportunities to re-offend; characteristics of the offender; treatment availabilities; and post-treatment supervision Child molesters have been known to re-offend
as late as 20 years following release into the community Problems caused by recidivist offenders have given rise to several legislative
370 CHILD MOLESTATION
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example, various sex offender registration
schemes are known as Megan’s Laws, which
list names, addresses, and other specifics about
convicted sex offenders Such registries are
available for public access The laws take their
name from Megan Kanka who was abducted,
molested, and murdered by a convicted child
molester who lived near her home in New
Jersey
A more active scheme that gained increased
attention in the wake of several national news
stories of abducted and molested children is
known as AMBER ALERT Laws These laws were
prompted by citizen concerns following the
1996 KIDNAPPING and MURDER of nine-year-old
Amber Hagerman in Arlington, Texas The
AMBER ALERT involves law enforcement and
broadcast media response to reports of a
missing child, when it appears that the child
has been abducted by a sexual predator
Although the scope of the Amber Alert varies
from jurisdiction to jurisdiction, the criteria to
trigger it are generally consistent: the missing
child falls within a certain age range; the law
enforcement agency believes the child has been
abducted; the agency believes the missing child
is under threat of serious bodily harm or death
In all cases, law enforcement activates an Amber
Alert by notifying broadcast media with relevant
information about the child’s identity, the
description of the suspected PERPETRATOR, and
the circumstances of the abduction
Once an Amber Alert has been issued by law
enforcement, radio and television stations
interrupt their programming to notify the
public that a child has been kidnapped and to
provide relevant information about the case
Because approximately 95 percent of all people
driving in their cars are tuned in to a radio
station, the Amber Alert is an extremely
effective way of disseminating descriptions of
the child, the kidnapper, accomplices, and
vehicles The goal of the Amber Alert is to
notify an entire community It adds extra eyes
and ears to watch, listen, and help in the safe
return of the child and apprehension of the
suspect The federal government also worked on
legislation that would establish a national
Amber Alert system Legislation was introduced
in the House and the Senate, and President
GEORGE W.BUSH signed a national Amber Alert
bill on April 30, 2003, known as the
Prosecuto-rial Remedies and Tools Against the
Exploitation of Children Today Act of 2003 (Protect Act), Pub L No 108-21, 117 Stat 650
For several years numerous charges of child molestation and other allegations of sexual abuse or improprieties were levied against certain Roman Catholic priests These cases had been in various stages for some time, but since the late 1990s the scope of the problem became more widely known During the early 2000s, it was common to regularly hear a report
of a priest resigning or being defrocked or censured by his bishop These scandals origi-nated in the United States but spread to many other countries around the world
In March 2002, a Polish archbishop, a friend and former personal assistant to the pope, resigned in the wake of sexual abuse charges In Australia, 51 priests were convicted of child molestation between 1992 and 2003 In England, 21 priests were convicted of sexual molestation between 1995 and 2002 In Ireland, taxpayers contributed about one-fifth of $500 million to pay claims against the Church relating to cases of abuse of over three thousand victims spanning 30 years There have been hundreds of resignations, firings, or monetary settlements in many countries, particularly Australia, Canada, England, France, Germany, Ireland, Mexico, Poland, and the United States
One of the most notorious cases that made national and international news involved a priest from New England In 2002 the Boston Globe published a series of investigative reports
An Amber Alert, a law enforcement and broadcast media response to a report of
a missing child, is displayed over Interstate 80 near Omaha, Nebraska, in December 2002.
AP IMAGES
CHILD MOLESTATION 371
Trang 5revealing that since 1997 the Boston Archdio-cese had secretly settled 50 lawsuits against John
J Geoghan, who, over his 30-year-career as
a Catholic priest in six parishes, had been repeatedly accused of molesting approximately
130 children Although Geoghan later resigned and was convicted for child molestation, the evidence demonstrated that, in addition to secretly paying Geoghan’s victims
approximate-ly $10 million to keep them quiet, the archdio-cese had transferred Geoghan and dozens of other priests from parish to parish after allegations of child molestation began to surface, rather than removing the accused from their positions, conducting investigations, and reporting them to the authorities
The Geoghan scandal opened the floodgates nationwide Over the next twelve months, some 1,200 priests were accused of child molestation
in more than 30 states Most of these cases were settled out of court The biggest settlements included the Archdiocese of Los Angeles, which paid approximately $660 million to more than
500 victims; the Diocese of Orange in Califor-nia, which paid approximately $90 million to approximately 90 victims; the Diocese of Covington, Kentucky, which paid $84 million
to more than 350 victims; and the Archdiocese
of Boston, which paid $85 million to more than
500 victims
The U.S Conference of Catholic Bishops, in
a report on the nature and scope of the abuse problems in the United States, found almost 11,000 cases of abuse by about 4,000 priests and deacons since 1950 Bishop Wilton Gregory, president of the U.S Conference of Catholic Bishops, stated: “The heartfelt sorrow that we feel for this violation and the often ineffective ways with which it was dealt has strengthened our commitment to do everything possible to see that it does not happen again.”
Pope John Paul II responded to the scandal
by issuing a statement, proclaiming that“there
is no place in the priesthood and religious life for those who would harm the young.” The Church then instituted reforms to prevent future abuse by requiring background checks for Church employees Dioceses faced with
CHILD ABUSEallegations are now required to alert the authorities, conduct an investigation, and immediately remove the accused from duty
Whereas these revelations focused media attention on the issue of priests molesting children, the breadth of child sexual abuse
reaches beyond the Catholic Church The general public is just beginning to understand its many dimensions and the legal line is being more firmly drawn to protect the rights of children
FURTHER READINGS
“Amber Plan.” National Center for Missing and Exploited Children Available online at www.missingkids.com (accessed May 7, 2003).
McCarter, W Dudley 2009 “A Parent Convicted of Child Molestation Has No Vested Right to Unsupervised Visitation ” Journal of the Missouri Bar 65 (May-June) Szasz, Thomas 2002 “Sins of the Fathers: Is Child Molestation a Sickness or a Crime? ” Available online
at www.reason.com (accessed May 7, 2003).
CROSS REFERENCES Child Abuse; Child Pornography; Sex Offenses.
CHILD PORNOGRAPHY Child pornography is the visual representation of minors under the age of 18 engaged in sexual activity or the visual representation of minors engaging in lewd or erotic behavior designed to arouse the viewer’s sexual interest
Child pornography may include actual or simulated sexual intercourse involving minors, deviant sexual acts, BESTIALITY, masturbation, sado-masochistic abuse, or the exhibition of genitals in a sexually arousing fashion In most instances, however, the mere visual depiction of
a nude or partially nude minor does not rise to the level of child PORNOGRAPHY Thus, home movies, family pictures, and educational books depicting nude children in a realistic, non-erotic setting are protected by the Free Speech Clause
of theFIRST AMENDMENTto the U.S Constitution and do not constitute child pornography Child pornography differs from pornogra-phy depicting adults in that adult pornograpornogra-phy may only be regulated if it isOBSCENE In Miller
v California, 413 U.S 15, 93 S Ct 2607, 37 L
Ed 2d 419 (1973), the U.S Supreme Court ruled that pornography depicting adults is obscene if: (1) the work, taken as a whole by
an average person applying contemporary community standards, appeals to the prurient interest; (2) the work depicts sexual conduct in
a patently offensive way; and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value As a result, child pornography can be banned without regard to whether the pornographic depictions
of minors violate contemporary community
372 CHILD PORNOGRAPHY
Trang 6standards or otherwise satisfy the Miller
stan-dard forOBSCENITY
In 1984 the Court was asked to review the
constitutionality of a New York law that made it
illegal to produce, distribute, sell, or otherwise
promote material depicting a minor engaged in
sex acts TheDEFENDANT, a bookstore proprietor,
was convicted under the law, even though the
materials he was convicted for selling were not
obscene under the Miller standard In
uphold-ing the law and recognizuphold-ing a new category of
speech not protected by the First Amendment,
the Supreme Court held that Miller did not
apply in prosecutions for child pornography
Instead, the Court said, governments have a
compelling interest in protecting minors from
exploitation and thus may ban pornography
that depicts minors engaging in sexual acts or
sexual performance without violating the First
Amendment New York v Ferber, 458 U.S 747,
102 S Ct 3348, 73 L Ed 2d 1113 (1982)
“Use of children as subjects of pornographic
materials is harmful to the physiological,
emotional, and mental health of the child,”
the Court emphasized The Court also said it
was mindful of the challenges law enforcement
had faced in its efforts to shut down the
distribution network for child pornography In
1992, the Court extended the Ferber rationale in
upholding a statute that criminalized the mere
possession of child pornography Osborne v
Ohio, 495 U.S 103, 110 S Ct 1691, 109 L.Ed.2d
98 (1990) The Court reasoned that the state law
was rationally related to the legitimate aim of
destroying the child pornography market
As computers became increasingly used
during the 1990s and the INTERNET made
distribution of images easier, faster, and
cheaper, Congress passed the Communications
Decency Act (CDA), which punished
dissemi-nating “indecent” material over the Internet
The Supreme Court struck down the law in
Reno v ACLU, 521 U.S 844, 117 S Ct 2329,
138 L Ed 2d 874 (1997) Although the Court
recognized the “legitimacy and importance of
the congressional goal of protecting children
from harmful materials,” it ruled that the CDA
abridged FREEDOM OF SPEECHand, therefore, was
unconstitutional The Court also noted that its
previous decisions limiting free speech out of
concern for the protection of children were
inapplicable in this case and that the CDA
differed from the laws upheld in previous cases
in significant ways For example, the CDA did
not allow parents to consent to their children’s use of restricted materials; it was not limited to commercial transactions; it failed to provide a definition of“indecent”; and its broad prohibi-tions were not limited to particular times of the day Finally, the act’s restrictions could not be analyzed as a form of time, place, and manner regulation because it was a content-based blanket restriction on speech
Congress wasted little time in responding to this decision In 1998 it passed the Child Online Protection Act (COPA), which made it illegal to use the Internet to communicate“for commercial purposes” any material considered to be “harmful
to minors.” The law also incorporated the three-part obscenity test that the Supreme Court formulated in Miller v California TheAMERICAN CIVIL LIBERTIES UNION(ACLU) and a group of online Website operators challenged the
constitutionali-ty of COPA, arguing that it was overbroad In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA, which meant that the most conservative community in the country could dictate content on the Internet
A federal appeals court in Philadelphia agreed with these arguments, and the government appealed again to the Supreme Court
The Supreme Court, in Ashcroft v American Civil Liberties Union, 535 U.S 564, 122 S Ct
1700, 152 L Ed 2d 771 (2002), produced a decision that failed to give a clear direction The use of community standards did not by itself make the statute overbroad and unconstitutional under the First Amendment Apart from that conclusion, the Court could not agree, with five
of the justices producing separate opinions A majority, however, had reservations about the COPA A number of the justices expressed concern that without a national standard it would
be difficult for operators of Internet services to know when they had crossed a line and had subjected themselves to liability The case was remanded to the lower courts for a full examina-tion of the law on all issues The fate of COPA is likely to be decided by the Court in a future decision At least one federal circuit has perma-nently blocked prosecutors from using COPA in any federal proceeding American Civil Liberties Union v Mukasey, 534 F.3d 181 (3d Cir 2008)
In the same term that the Court rendered its divided opinion in Ashcroft v American Civil Liberties Union, the justices managed to reach
CHILD PORNOGRAPHY 373
Trang 7agreement in another case dealing with child pornography In 1996 Congress passed the Child Pornography Prevention Act (CPPA), 18 U.S.C.A §§ 2252A, 2256(8)(B), (D), which defined child pornography to include visual depictions of anyone who “appears to be a minor engaging in sexually explicit conduct.”
CPPA also defined child pornography to include any sexually explicit image that is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that they depict minors engaging in sexually explicit conduct The goal of the act was to prohibit the creation of computer-generated images that did not depict actual minors but that were virtually indistinguishable from images that did depict actual minors
The Court struck down both sections as overbroad While the Court said that state and federal governments continue to have a com-pelling interest in protecting real children from exploitation, the law in question was worded
in such a way as to allow the government to
PROSECUTE authors and playwrights for works that contain purely fictional characters Both art and literature have depicted minors coming of age “throughout the ages,” the Court said and thus Congress must confine itself to regulating the pornographic depiction of actual minors or run afoul of the First Amendment Ashcroft v
Free Speech Coalition,535 U.S 234, 122 S Ct
1389, 152 L Ed 2d 403 (2002)
In 2008 the Court clarified its holding in Ashcroft v Free Speech Coalition At issue was the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PRO-TECT) Act, 18 U.S.C.A § 2252A(a)(3)(B), which Congress passed in 2003 Under the law, it is illegal for anyone to make an offer to provide child pornography or make a request to obtain child pornography The Court said that the act was constitutional as applied to a defendant charged with soliciting child pornog-raphy over the Internet, even if the defendant was soliciting it from an undercover agent who really did not possess any pornography The act also applied, the Court said, to someone who advertises virtual child pornography over the Internet, even if that pornography is advertised
as containing virtual images of real children
United States v Williams, —U.S.—, 128 S Ct
1830, 170 L Ed 2d 650 (2008) Unlike in Ashcroft v Free Speech Coalition, prosecution of defendants under either of these circumstances
would not have a chilling impact on authors and playwrights creating legitimate works depicting minors coming of age, the Court said
FURTHER READINGS Clark, Matthew C., ed 2002 Obscenity, Child Pornography, and Indecency New York: Novinka Books.
Marin, Giannina 2008 “Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You ” Florida Law Review December.
Tate, Tim 1990 Child Pornography: An Investigation London: Methuen.
U.S Senate, Committee on the Judiciary 2003 Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing Before … 107th Congress, 2nd Session, October 2, 2002 Washington, D.C.: U.S Government Printing Office.
CROSS REFERENCES Child Abuse; Child Molestation; Computer Crime; First Amendment; Freedom of Speech; Obscenity; Pedophilia.
CHILD SUPPORT
A payment that a noncustodial parent makes as a contribution to the costs of raising her or his child
In the mid-1990s, as never before, CHILD SUPPORTbecame a topic of urgent U.S national discussion The system that awards and enforces child support was declared inadequate by state and federal policy makers Failures in the system were blamed for child poverty rates, long-term dependence on government assistance, and the
“feminization of poverty.” Courts drew criti-cism for awarding child support inconsistently and inequitably These social and economic issues attracted both federal attention and reform efforts
The need for child support payments usually arises when one parent does not have physical custody of his or her child, so that parent’s income does not benefit the child on a daily basis At times, neither parent has custody, and both may pay a third person who is caring for the child When both of a child’s parents have full custody (as when they are married to each other), and usually when they are divorced and share joint physical custody, the needs of the child are presumed met and child support is not an issue As long as parents provide a safe level of care, the government does not control their contributions to their children
In the United States in the early 2000s, nearly half of all marriages ended in DIVORCE, and almost one-quarter of all children were
374 CHILD SUPPORT
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children who lived in single-parent families
had aLEGAL RIGHTto a child support order Child
support can be voluntary or court ordered and
can be secured through a divorce decree or a
separate action Increasingly, support orders are
issued by state agencies
The legal duty to support a minor child
belongs to both parents, even if the custodial
parent is capable of caring for the child
single-handedly Support is awarded to provide for the
child’s basic needs and to allow the child to
share in the standard of living of both parents
Although both mothers and fathers can be
ordered to pay support, a 1994 study in Utah
found that over a 20-year period, mothers were
required to pay child support in fewer than one
in five cases in which fathers received sole
custody A greater proportion of noncustodial
fathers were ordered to pay support
A petition for support is usually begun in a
state court where the PLAINTIFF (the parent
seeking the order) resides The Uniform
Inter-state Family Support Act of 1992, which was
updated in 1996 and 2001 and which has been
adopted in some form in the majority of states,
provides that jurisdiction exists where the child
or one of the parents resides Before support can
be awarded, parentage (called PATERNITY in the
case of fathers, maternity in the case of
mothers) must be demonstrated The
would-be payer is entitled to blood tests, but in some
states must pay for them The 1993 FEDERAL
BUDGET bill (OMNIBUS Budget Reconciliation Act
of 1993, 42 U.S.C.A § 666(a)(2)) required states
to offer speedy means of establishing parentage,
since parentage disputes can delay a valid child
support award
Determining Awards
Child support awards are made by each state’s
family court system Most states require that
they be based on the best interests of the child
In addition to determining support in
conten-tious divorce cases, courts review stipulations
(agreements) between parents and canOVERRULE
an agreement that does not adequately provide
for children
Often, courts feel pressure to balance
children’s needs with their parents’ needs
Awards are based on the noncustodial parent’s
ability to pay and must allow the parent to
remain self-supporting Many associations of
noncustodial parents emerged after the 1980s to
express their belief that awards were burden-some to the payers, benefited only the custodial parent, or did not provide payers with enough
in return At the same time, more single parents with children slipped into poverty than had at any other point in the nation’s history
In the mid-1990s no federal child support guideline existed, mainly because child support was historically a state-controlled issue Most states had established their own guidelines in the quest for fair standards About 15 states used the “percentage-of-income” guideline, which is based on the income of the noncus-todial parent Thirty states used the “income-shares” method, which is based on the income
of both parents It prorates the total support between the parents and calculates each contribution proportionally according to in-come Several states used the elaborate Melson formula, which provides a basic subsistence level for each parent before determining the primary support needs of the children This formula then awards a percentage of the remaining income so that the children share
in the standard of living of each parent
Even when guidelines are used, judges consider the facts of a case and other statutes
They can depart from the guidelines for considerations such as how property is divided, whether an arrearage (unpaid child support) exists, and what disparities in parents’ incomes exist In many states, judges must prove in writing that an exception to the guidelines serves the child’s best interest
In practice, courts are allowed to use many criteria in setting an award amount Some judges consider the needs of subsequent chil-dren when obligors (payers) remarry and start new families Some may adhere to the Uniform Parentage Act, which states that courts must take into consideration, among other things, the age
of the child, the financial resources and earning ability of the child, and the value of services contributed by the custodial parent
Investment income, unearned income, overtime, bonuses, income from a second job, gifts, and retirement pay may all be eligible income when calculating child support due, regardless of its tax status PUTATIVE income (earning capacity) is used to calculate support in many states if it is suspected that the noncusto-dial parent is deliberately underemployed or unemployed The court is allowed to credit
CHILD SUPPORT 375
Trang 9SOCIAL SECURITYbenefits toward support, but this action is not automatic Child support is not deductible from either parent’s taxes, any more than are the provisions that married parents supply to their children The children them-selves qualify as household deductions, but only one parent may claim them
Unless a state mandates that child support
be awarded, the court can deny it Courts have denied support in situations of split custody, in which each parent has custody of one or more children With exceptions, the court usually does not award child support to a noncustodial parent during visitation Support can be or-dered for legally adopted children It cannot be ordered for grandchildren who have not been legally adopted
Consequences for Nonpayment
The consequences of not paying child support are inconsistently applied—a situation many states want to remedy A delinquent OBLIGOR
may face contempt-of-court charges and civil penalties Criminal sanctions can include a jail sentence or a fine, but these punishments are used sparingly and for repeat violations Prosecution may proceed on a MISDEMEANOR or
FELONYlevel, depending on the circumstances In addition, federal prosecution may occur for a parent who crosses a state line to avoid paying support
Enforcement
In 1992 $27 billion in child support went uncollected The U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES has estimated that a substantial increase in child support collections could reduce the payments of Aid to Families with Dependent Children (AFDC) by 25 percent The federal government created the AFDC program in 1935
to enable states to provide money and services to help poor children remain in their own, single-parent homes
These observations were not lost on the
1994 Senate, which directed theJUSTICE DEPART-MENTto “immediately address shortcomings in enforcement of the law [regarding child support].” Enforcement efforts are administered federally through the department’s Office of Child Support Enforcement, but child support recovery units at the state level perform the daily task of securing payment
The problems surrounding the collection of child support have provoked frustration and
State Child Support Enforcement Offices
Department of Human Resources Bureau of Collections
Child Support Enforcement Division Department of Human Services
(334) 242-9300 (515) 281-5647
Child Support Services Division Child Support Enforcement Program
(907) 269-6900 Department of Social &
Rehabilitation Services
Division of Child Support Enforcement
(602) 771-8190 Kentucky
Child Support Enforcement Program Arkansas Cabinet for Families and Children
Office of Child Support Enforcement (502) 564-2285
(501) 682-6169
Louisiana California Office of Family Support
Department of Child Support Services Support Enforcement Services Division
(225) 342-4780 (866) 249-0773
Maine Colorado
Department of Health and Human Services Division of Child Support Enforcement
(303) 866-4300 Division of Support Enforcement & Recovery
Office of Integrated Access and Support Connecticut (207) 624-4100
Department of Social Services
Bureau of Child Support Enforcement Maryland
(860) 424-4989 Child Support Enforcement Administration
Department of Human Resources Delaware (410) 767-7065
Division of Child Support Enforcement
Delaware Health and Social Services Massachusetts
(302) 395-6500 Child Support Enforcement Division
Department of Revenue District of Columbia 1-800-332-2733
Child Support Services Division
Office of the Attorney General Michigan
(202) 724-2131 Office of Child Support
Department of Human Services
Child Suppport Enforcement Program
Department of Revenue Minnesota
(850) 922-9590 Office of Child Support Enforcement
Department of Human Services
Child Support Services
(404) 657-3851 Mississippi
Division of Child Support Enforcement Hawaii Department of Human Services
Child Support Enforcement Agency (601) 359-4861
Department of the Attorney General
(808) 692-7000 Missouri
Family Support Division Idaho Department of Social Services
Bureau of Child Support Services (573) 751-3221
Department of Health and Welfare
1-800-356-9868 Montana
Child Support Enforcement Division Illinois Department of Public Health and
Division of Child Support Enforcement Human Services
Illinois Department of Public Aid (406) 444-9855
1-800-447-4278
Nebraska Indiana Department of Health and Human Services
Child Suppport Bureau
(317) 233-5437
(402) 471-1400
[continued]
376 CHILD SUPPORT
Trang 10ingenuity in states throughout the nation A
major barrier to timely and regular collection is
the large volume of child support orders that
states are required to enforce monthly One
response has been to divert cases from the court
system by empowering state agencies to enforce
child support orders
A primary means of collecting is wage
withholding This action requires that the
employer of the obligor send a percentage of
the obligor’s paychecks to the state or county,
which forwards it to the custodial parent
Where the custodial parent receives federal
public assistance, income withholding is
man-datory GARNISHMENT is similar to withholding,
but it is used when the obligor is about to
receive a lump-sum payment
Interception of the obligor’s federal TAX
RETURNis another enforcement tool In the first
seven years after implementing a pilot of this
requirement, $1.8 billion was collected As of
the early 2000s federal law requires every state
to have legislation for intercepting the tax
returns of delinquent obligors and applying
them to child support after a review
Self-employed obligors, or those whose
employment is unknown, pose a challenge to
collection agencies In their case, states may rely
on the custodial parent’s knowledge of the
obligor’s income and on tax returns to pursue
enforcement
If a parent who owes child support dies, the
child support payments may be made from the
deceased parent’s estate, at least according to one
court In L W K v E R C., 735 N.E.2d 359
(Mass 2000), in the Supreme Judicial Court of
Massachusetts a father was required by a court to
pay $100 per month in child support for his
minor daughter until the daughter turned 18
The father subsequently disinherited the
daugh-ter in his will He died five months afdaugh-ter he
executed the will The court ruled that the child
was entitled to receive child support payments
from the father’s estate until she turned 18
Other enforcement methods include placing
aLIENon the obligor’s property so that it cannot
be sold without clearing the arrearage At times,
interest is added to unpaid child support in order
to motivate the obligor to pay off this debt; in
1995 the default rate was nearly 50 percent on
child support, compared with only 3 percent
on car loans Some states have taken the
high-profile approach of publicly issuing controversial
“Wanted” posters depicting delinquent obligors
Others have revoked state-issued fishing, hunting, and even driver’s licenses as punishment for nonpayment
State Child Support Enforcement Offices
Nevada
Rhode Island State of Nevada
Office of Child Support Services Division of Welfare and Supportive Services
Department of Human Services 1-800-992-0900
(401) 458-4400
New Hampshire Division of Child Support Services
South Carolina
Health and Human Services
Child Support Enforcement Division Department of Social Services
1-800-852-3345
1-800-768-5858
New Jersey
South Dakota
Office of Child Support
Division of Child Support
Department of Human Sevices
Department of Social Services (605) 773-3641
(609) 588-2915
Tennessee Child Support Services
New Mexico
Department of Human Services
Child Support Enforcement Division
(615) 313-4880
Department of Human Services (505) 476-7207
Texas Child Support Division
New York
Office of the Attorney General
Division of Child Support Enforcement Office of Temporary Assistance and Disability
1-800-252-8014
(518) 474-9081
Utah
North Carolina
Child Support Services Office of Recovery Services Department of Human Services (801) 536-8901
Child Support Enforcement Office Vermont Department of Human Resources
(919) 255-3800
Office of Child Support (802) 786-3214 North Dakota
Child Support Enforcement Agency
Virginia Department of Human Services
Division of Child Support Enforcement (701) 328-3582
1-800-257-9986
Ohio Office of Child Support Enforcement
Washington Division of Child Support Department of Human Services
Economic Services Administration (614) 752-6561
(360) 664-5000
Oklahoma
West Virginia Child Support Services
Bureau for Child Support Enforcement Department of Human Services
Department of Health & Human Resources (405) 522-2874 1-800-249-3778
Oregon
Wisconsin Division of Child Support
Bureau of Child Support Department of Justice Division of Economic Support(608) 266-9909 (503) 986-6166
Wyoming Pennsylvania Child Support Enforcement Bureau of Child Support Enforcement Department of Family Services Department of Public Welfare (307) 777-6948
1-800-932-0211
SOURCE: U.S Department of Health & Human Services, Administration of Children
& Families, Office of Child Support Enforcement.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
CHILD SUPPORT 377