Reservists deserve protection from family-court mischief

Posted: Feb 28, 2005 12:00 AM

Most reservists called upon to serve in Iraq and Afghanistan have paid a big price: a significant reduction of their wages as they transferred from civilian to military jobs, separation from their loved ones, and of course the risk of battle wounds or death.

Regrettably, on their return home, those who are divorced fathers could face other grievous penalties: loss of their children, financial ruin, prosecution as "deadbeat dads" and even jail.

Child-support orders for reservists are usually based on their civilian wages. When they are called up to active duty that burden doesn't decrease. Few can get court modification before they leave, modifications are seldom granted anyway, and even if a father applied for modification before deployment the debt continues to grow until the case is decided much later.

Military fathers cannot get relief when they return because federal law forbids courts from reducing child-support debt retroactively. Once the arrearage reaches $5,000, the father becomes a felon subject to imprisonment and forfeiture of his driver's license, professional licenses and passport.

Likewise, there is no forgiving of interest and penalties on  child-support debt even though it is sometimes incurred as a result of human or computer errors. States have a financial incentive to refuse to reduce obligations because the federal government rewards states with cash for the "deadbeat dad" dollars they collect.

Laws granting deployed service personnel protection from legal actions at home date back decades, but they are ignored in family court. Child kidnapping laws do not protect military personnel on active duty from having their ex-wives relocate their children.

This injustice to reservists serving in Iraq and Afghanistan should be remedied by Congress and state legislatures before more fathers meet the fate of Bobby Sherrill, a father of two from North Carolina, who worked for Lockheed Martin Corp. in Kuwait before being captured and held hostage by Iraq for five terrible months. The night Sherrill returned from the Persian Gulf he was arrested for failing to pay $1,425 in child support while he was held captive.

In February, a Wilkes-Barre, Pa., judge sentenced 28 men to jail for failure to pay small amounts of child support, one as little as $322. One common punishment for falling behind in court-ordered payments is to seize a man's driver's license. This can cost him his job. Yet he is still required to make child-support payments and can be thrown in jail if that proves to be impossible.

Politicians today are engaged in a spirited debate about giving driver's licenses to illegal immigrants so they can drive to work. But somehow the law has already decided that a divorced father, who might have fallen behind in child-support payments, should be punished by forfeiting his license.

  The New York Times recently exposed the ridiculous case of truck driver Donald Gardner, who was left penniless after a 1997 car accident put him in the hospital for three years. When he tried to return to work, he found that the state had taken suspended his driver's license because he owed $119,846 in child support.

  The Times reported that, as of 2003, fathers allegedly owed $96 billion in child support. However, 70 percent is owed by men who earn less than $10,000 a year or have no wage earnings at all, so we have a $3 billion government bureaucracy working to get blood out of a turnip.

  The most bizarre part of the system is that child-support payments are not required to be spent on children and are not based on any estimates of their needs or expenses. Support orders come from court-created formulas based on the income of the father, while the mother is allowed to treat child support like any other entitlement, such as welfare or alimony.

  Although there are no official statistics, it is estimated that more than 100,000 fathers are jailed per year for failing to make child-support payments. Another perverse feature of the system is that child-support payments are in no way related to whether a father is allowed to see his children or whether his visitation rights are enforced.

  Debtors' prisons were common in colonial times, but they were abolished by the new United States government, one of the great improvements made on English law. Then the new nation adopted bankruptcy laws to allow people a fresh start when they are overwhelmed by debt. However, child-support debts cannot be discharged in bankruptcy.

  The Bradley Amendment, named for former U.S. Sen. Bill Bradley, D-N.Y., takes us back to the cruel days of debtors' prisons. It requires that a child-support debt cannot be retroactively reduced or forgiven, and states enforce this law no matter what the change in a father's income, no matter if he is sent to war or locked up in prison, no matter if he is unemployed or hospitalized or even dead, no matter if DNA proves he is not the father, and no matter if he is ever allowed to see his children. Charles Dickens famously said, "The law is an ass."

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