Statement of Patrick R. Caffrey, Seeley Lake, Montana

    Until constitutional guarantees are incorporated in national child support policy, legislation presuming to provide for the children of disassociating parents will fail.

    The United States Supreme Court, from 1925 to the present, has repeatedly and consistently held that the care, custody and control of children by their parents is a fundamental liberty interest protected by the Bill of Rights and the 14^th Amendment. ¹

    Congress should stop pretending the child support enforcement apparatus, which treats parents worse than felons, isn’t being used as a welfare plan where parasite parents are enriched to advance personal lifestyles while forcing slave parents out of their children's lives. ²

    For millions of Americans there is no American Dream. For them this nation has become a gulag where they are stripped of their parental authority in their children's presence, prohibited from pursuing logical career decisions, and pre-empted from managing their own finances for the benefit of their children, their estranged parenting partners, and themselves. Their freedom to travel is at risk, and they are subject to police harassment and imprisonment. Their constitutional guarantees are routinely ignored in statute and practice. Even children and the parents they live with most of the time are degraded by a system that rewards immoral opportunism and vindictive motivations. In short, national policy professes to operate for the best interests of children, but the opposite effect is achieved. This policy increases the adversarial tenor of incompatible parents who might otherwise restructure their children's upbringing in a more positive and accommodating manner.

    Destruction of parental involvement increases with the conscientiousness of the disenfranchised parent. Those most vulnerable are those guilty of the following crimes:

• Being a parent
• Being a responsible citizen
• Believing in our system of government
• Caring for their children

    Those of less integrity can evade their natural parental obligations. The apprehension of some of them is of no real benefit to their children, since money can never replace a parent. Meanwhile, dedicated parents become financially and spiritually exhausted fighting in a process where even eventual vindication guarantees government-sponsored psychological child abuse.

    The underlying cause of the problem is federal involvement. The Family Support Act of 1988 generalized children’s needs. States were then mandated to implement presumptive rather than advisory child support guidelines. The path of least resistance for judges and administrators is to accept presumptions. This is the heart of the problem, as it places the burden of proof on parents to rebut presumptions. ³

    Parents should spend their time and money on their children, not on struggling to conform to arbitrary guidelines or proving to the government that they merit constitutional protections.

    Actual earnings are always acceptable for raising children of married parents. We pay taxes on what we earn, not on what we could have earned. Yet disenfranchised supporting parents are forced to pay a percentage of what they presumably could earn.

    Most state procedures calculate the amount of funding necessary to replicate the family standard of living. They then assign all the money to one parent. The only way the paying parent can maintain previous parenting styles is to pay for them twice.

    The "best interests of children" as a matter of public policy has been regarded as the best interests of children as a constitutional right. The two standards are not on par. Children do not have a constitutional right that their best interests be met. If they did, every family would be subjected to continual government interference to determine and maximize benefits to their children. Parents would have to choose between the interests of their children and the protection of their individual rights. The constitution would force parents to become adversaries to their own children. Sadly, this happens to divorcing parents. Parental rights in this disenfranchised class of citizens are subordinated to the presumed rights of their children. The pre-eminent interest of children should be that the constitutional right of parents to the care, custody and control of their children be preserved. Otherwise, the State is telling children their parents don’t have rights, and neither will they when they have children.

    Adversarial custody battles are now pursued, not to benefit children, but to use children as a shelter from persecution by an orwellian child support enforcement regime. Those who insist children need government protection from hostilities between their parents have created a self-fulfilling prophecy.

    Our children deserve for two cooler heads to prevail.

    When considering family legislation, please consider, "Could I force this upon married parents?"

¹ The presumption that children’s interests override parental rights in all cases leads to laws and regulations which place the burden of proof on parents to show they are fit. Such impediments can not be placed on fundamental liberty interests guaranteed by the constitution, nor can these rights be compromised for administrative convenience. The U.S. Supreme Court has established that, "The State cannot, consistently with due process requirements, merely presume that unmarried fathers in general … are unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized proof." (Stanley v. Illinois, 405 U.S. 645 (1972)). "It is the government's burden to demonstrate an overriding interest in order to validate an encroachment on protected interests" (Elrod v. Burns, 427 U.S. 347 (1976)). "The only requirement being … the best interest of the child … sweeps too broadly … The Federal Constitution permits a State to interfere with (parents’ fundamental right to rear their children) only to prevent harm or potential harm to the child." (Troxel v. Granville, (99-138) (2000)).
² Laws designed to bring a few deadbeats into parental compliance are instead forcing millions of children to live with single parents who subsist on "child support" which is, in its present form, a welfare plan underwritten by non-custodial parents. It is public policy that parents must work to serve their children. Diversion of support money without accountability to provide for another adult, who is not likewise required to work, runs afoul the U.S. 13^th Amendment. Also, it is a parent’s constitutional duty to ensure that resources are directed to their children. The state, acting as parens patriae, tells parents to presume their money is benefiting their children, and that children are enlightened to become model citizens when they see one parent become a slave and the other a parasite.
³ The constitutional problems with federally mandated presumptions are not insurmountable. There is no federal prohibition that a state cannot by statute review worksheet awards that have been found to be federally correct. States should be required to make particularized written findings in ALL cases. To find for a presumptive award as correct, a court should state "the non-custodial parent is unfit, neglectful, absent, or nonparticipating." This appears to increase the judicial system's workload. More likely, a parent who is not guaranteed windfall enrichment at the expense of the other parent would be more rational and considerate of the children's needs, reducing case loads.