Statement of Jacqueline K. Payne, Policy Attorney, and Martha Davis, Legal Director, 
NOW Legal Defense and Education Fund, New York, New York

NOW Legal Defense and Education Fund (“NOW Legal Defense”) appreciates the opportunity to submit this testimony on child support reforms and fatherhood initiatives, especially as they pertain to low-income families.  We stand firm in our belief that there is an important federal role for providing support for parents and families, especially those living in poverty.

NOW Legal Defense is a leading national not-for-profit civil rights organization with a 30-year history of advocating for women’s rights and promoting gender equality.    Among NOW Legal Defense’s major goals is securing economic justice for women.  Throughout our history, we have used the power of the law to advocate for the rights of poor women, focusing on increased access to childcare, reduction of domestic violence and sexual assault, and employment and reproductive rights.   In pursuit of gender equality, we have steadfastly advocated for social and legal change to support fathers increased participation in the lives of their families.

Five bills pending in Congress include some combination of child support reforms and fatherhood initiatives:  the Child Support Distribution Act of 2001 (H.R. 1471), The Child Support Act of 2001 (S. 918) the Responsible Fatherhood Act (S. 653, H.R. 1300), and the Strengthening Working Families Act (S. 685).  NOW Legal Defense heartily supports the child support reforms contained in H.R. 1471, S. 918, and S.685, which will help low income families provide for their children’s basic needs, help families move out of poverty, and remove draconian policies that penalize low income men and their families.

NOW Legal Defense shares Congress’s interest in supporting fathers.  We applaud Congress’s interest in addressing the barriers to low income men’s economic self sufficiency, and back programs designed to provide supports to low income individuals so that they may escape poverty.  Moreover, we encourage and support Congress’s articulated interest in encouraging men to fully participate as parents, and hope that this heralds a shift towards paid parental leave, as well as other meaningful legal and policy changes that would make it possible for men and women across all income levels to fully share parenting without suffering social or economic penalties. 

Despite these shared goals, NOW Legal Defense cannot support the pending fatherhood initiatives as they are currently drafted.  While these proposals are laudable in their goals, they ignore or misperceive the underlying causes of poverty and fail to adequately deal with issues such as domestic violence and gender inequality.  Moreover, the bills’ emphasis on marriage suggests a disturbing willingness to transgress the privacy rights of low income individuals.

Child Support Reforms are Needed

Genuine reform of the child support and welfare laws is overdue.  For many years these laws have been overly punitive to poor, non-custodial fathers without providing assistance to the custodial mothers and their families.  Child support should be first and foremost about securing support for children from their non-custodial parent.  However, the current system does far too little to help these children.  Instead, all of the support paid by non-custodial parents whose children receive public assistance, and much of the support paid by non-custodial parents whose families ever needed assistance, goes to the state.   The “child support” system under Title IV-D is a state recovery system that penalizes poor fathers and fails to help their children.  Men earning marginal wages, whether absent or present in the family, will not be able to provide enough support for their children to lift them out of poverty. 

Under the current child support system, children whose families are on welfare receive no additional money even when child support payments are made.  This reflects a change in Federal law, which had previously required states to pay families the first $50.00 of child support and disregard it in determining the welfare payment.   Moreover, children whose families were ever on welfare often find they cannot receive the support owed them because the state insists on being reimbursed for past welfare assistance before the family can receive their support payments.  The present child support system, therefore, does very little to help poor children or increase the economic self-sufficiency of their families.

It is critical that child support be reformed to: 1) ensure appropriate levels of obligation for non-custodial fathers; 2) ensure that families on welfare receive the money paid by the fathers (both to encourage payment by fathers and to ensure some improvement in economic conditions for the children by virtue of the child support payment); 3) disregard any child support payments passed through to the family receiving benefits; 4) and ensure that families that have transitioned off welfare receive all child support they are owed before the state reimburses itself for past assistance.

The Child Support Distribution Act (H.R. 1471) includes important child support reforms.  The bill requires states to pay former recipients any current support owed, as well as any arrearages not assigned to the state.  The bill also offers financial incentive to states to pay state-owed arrearages to the custodial parent; pass through child support to families currently receiving benefits; and disregard the amount of child support received by a family when determining that family’s TANF grant amount.  Unfortunately, these provisions would not become effective until 2006.  NOW Legal Defense urges Congress to make those reforms mandatory, rather than at the state’s option, and to remove the delay in implementation to hasten the benefit to low income children.

The bill also includes a modification to the rule requiring assignment of support rights as a condition of receiving TANF.  The amendment clarifies that applicants are only required to assign that support which accrues during the period that the family receives assistance under the program.  While NOW Legal Defense heartily supports that change, we believe Congress should remove the requirement altogether.  Most TANF recipients will want to pursue child support enforcement once states modify their laws so that child support will directly benefit the children.  Forcing a low income woman to establish paternity and cooperate with child support enforcement in exchange for subsistence benefits infringes upon her privacy rights and her judgment about what is best for her family.  In many cases, it will also threaten family safety.   

Study after study shows that up to 60% of women on welfare have been victims of intimate violence during their adult lives, and up to 30% have experienced domestic violence within the last year.¹  Despite these statistics, studies indicate that only about 7% of women on welfare seek good cause waivers from child support requirements² and many of those waivers are not successful.³    This is due to a combination of factors, including lack of information and training for caseworkers, lack of information for recipients, and distrust of untrained workers.  Many survivors on public assistance appear to want to enforce child support⁴ but doing so can open up a can of worms.  Studies show that abuse often escalates when survivors seek child support enforcement.  Moreover, child support proceedings open up the issue of visitation and custody and provide the abuser access to mother and child.  According to a 1996 report by the American Psychological Association, custody and visitation disputes are more frequent when there is a history of domestic violence.⁵  Perpetrators of domestic violence are more than twice as likely as other fathers to fight for custody of their children.⁶  When batterers seek custody, they win more often than not.⁷  The risks attendant on pursuing child support in an abusive relationship coupled with the lack of effectiveness of good cause waivers in this area create powerful arguments that child support cooperation should not be required of all recipients.   

Fatherhood Legislation

The marriage-based fatherhood legislation pending in Congress (S. 653, S. 685, H.R. 1300, H.R. 1471) was conceived of as the next step in welfare reform—the promotion of married fatherhood as the solution to out of wedlock births and single-parent families. 

This approach is problematic for several reasons:  1) it fails to identify and attack the true cause of poverty in America; 2) it unrealistically assumes marriage is the solution for everyone and, by requiring programs to promote marriage, economically coerces low income individuals to trade their constitutional right to privacy in exchange for services; and 3) fails to appropriately deal with the high rate of domestic violence among poor women and the danger forced reunification has for these women and their children.

1.  Making Fathers More Self-Sufficient, While Laudable, is Not the Answer to Poverty in America

Poor education, lack of opportunity, racism, high rates of incarceration and other poverty inducing factors affect men as well as women, crippling men’s ability to rise much above the poverty level and contributing to the economic devastation of entire communities.  Congress should support programs that address these obstacles and offer supportive services to empower all men and women to realize economic security.   In doing so, however, Congress must not perceive father’s economic security as the answer to women and children’s poverty. 

The fatherhood legislation proposes using TANF money to provide grants to programs to help low income fathers and their families avoid or leave cash welfare and improve their economic status by providing such activities as work first services, job search, job training, subsidized employment, career-advancing education, job retention, job enhancement, and other methods.  While in general two incomes are better than one, and thus more likely to move people off welfare, Congress should use TANF dollars to address the reasons why women and their children still make up the vast majority of people living in poverty and on welfare—despite sharing common experiences with their male counterparts.⁸  Factors such as lack of useful education and training, discrimination in the labor market, primary care giving responsibility without attendant employment protections, the lack of quality, affordable, accessible childcare, and domestic violence keep women from being economically self sufficient and reduce chances for all families’ to escape poverty.  Moreover—due to death, domestic violence, divorce, and job instability—focusing on fatherhood and marriage will not assure women and children’s economic security.

In America today, the vast majority of women with young children work outside the home.⁹   Despite their efforts, the families of waged-working women are punished by gender discrimination in the workforce.  The gender wage gap persists: Unequal pay means that white women make 71.5 cents for every white man’s dollar.  This impact is even greater on African American women who make 65 cents on that dollar, and even more so for Latinas, who make only 52 cents.¹⁰  As a result, women of color are disproportionately poor.¹¹  In addition, jobs that are held predominately by women consistently pay less than jobs that are held predominately by men.¹² 

Furthermore, even where both parents are present, women are still overwhelmingly expected to act as the primary care giver—for children, other family members, and the home.  The combination of women’s role as primary caregiver (work for which they are not paid) and their relative economic disadvantage in paid work as compared to men has had serious negative consequences for women and children in our society: 41% of all women and children in America today live below the poverty line;¹³ one out of every five children is raised in poverty.¹⁴ 

As Congress looks to solutions for families, supporting fatherhood programs without simultaneously addressing these challenges to women’s economic security will likely exacerbate—not solve— the problem for poor families.  Without proper protections such programs could:

•         Result in economically empowering men at the expense of poor women.  A similar program, called the Work Incentive Program (WIN), was enacted under the Social Security Act Amendments of 1967.  Excitement over father involvement resulted in a work program that trained and employed a disproportionate number of men.  For example, in 1971, although women headed 90 percent of AFDC households, 38 percent of participants in the work program were men.¹⁵
•         Exacerbate the current problem with women on welfare being steered into traditional women’s work—work that pays substantially less—instead of training them for living wage jobs with benefits—jobs that are traditionally held by men.¹⁶
•         Contribute to the increasing wage gap between men and women among the lowest waged workers.  Under welfare reform, women have been leaving the welfare rolls and entering the lowest paid jobs thereby increasing the wage gap.  Introducing men into job training and referral programs without ensuring women are trained and placed into nontraditional jobs will further increase the disparity between men and women’s wages.¹⁷

2.        Marriage is Not the Solution for Everyone, Nor is it the Solution to Poverty 

Our country consists of diverse family structures: those in which parents are married, single (including those who were never married, widowed, teen, or divorced), remarried, gay and lesbian, foster, and adoptive.¹⁸  These families have built loving, healthy relationships with their children and cooperative relationships with other caregivers, and deserve to be valued and respected as they are.  Nevertheless, all of the fatherhood bills pending in Congress require the fatherhood programs to promote marriage.  Programs may do so through such activities as: counseling, mentoring, disseminating information about the advantages of marriage, marriage preparation programs, premarital counseling, marital inventories, divorce education and reduction programs, including mediation and counseling.

Marriage may be the best choice for some individuals, but it is not the best choice for everyone.  In any case, marriage is a constitutionally protected choice.  The Supreme Court has long recognized an individual’s right to privacy regarding decisions to marry and reproduce as  “one of the basic civil rights of man, fundamental to our very existence and survival.”¹⁹  Significantly, this constitutional right equally protects the choice not to marry.²⁰  This right of privacy protects an individual from substantial governmental intrusion into his private decision.  The marriage promotion mandate in all of the bills essentially coerces economically vulnerable individuals to trade in their fundamental right to privacy regarding marital decisions in exchange for receiving job and life skills training. 

Fatherhood programs should not be forced to invade parents’ most fundamentally private decisions regarding marriage as a condition for receiving these federal funds.  Children benefit greatly from the love and support of adults who are committed to their well being, regardless of whether those adults are in an intimate relationship with each other.  They flourish in a safe, loving, healthy environment where their caregivers, including custodial parent(s), non-custodial parent(s), step-parent(s), and other caregivers, cooperate in a respectful manner to raise them with consistent messages about rules and expectations. 

The goal of “fatherhood initiatives” should be to foster this atmosphere of respect and cooperation between parents and/or caregivers, to give themthe tools they need to provide for their children emotionally and financially, and to create a safe, loving, healthy environment for their children.  Supportive services should be made available to all families, regardless of their marital status or family composition, including services to help improve employment opportunities, budget finances, promote nonviolent behavior, improve relationships, and provide financial support to children.  Where parents choose to engage in an intimate relationship, resources should be available to help ensure that it is a safe, loving, and healthy one.  As explained below, there are some situations where the non-custodial parent may endanger the welfare of either the custodial parent or child and in those situations cooperative parenting is not in the best interests of the child or of the custodial parent. 

3.     Domestic Violence

The promotion of marriage requirement in these bills endanger lives.  Violence against women both makes women poor and keeps them poor.  The majority of battered women attempt to flee from their abusers.²¹  Over 50% of homeless women and children cite domestic violence as the reason they are homeless.²²  Many depend on welfare to provide an escape from the abuse.  As noted above, study after study demonstrates that a significant proportion of the welfare caseload (consistently between 15% and 25%) consists of current victims of serious domestic violence²³  and half to two thirds have suffered domestic violence or abuse at some time in their adult lives.²⁴ 

For these women and their children, the cost of freedom and safety has been poverty.  Marriage is not the solution to their economic insecurity.  For them marriage could mean death; it will almost undoubtedly mean economic dependence on the abuser or economic instability due to the abuse.  Between one-half and one-third of battered women surveyed said that their partner prevented them from working entirely.²⁵  Those who are permitted to work fare little better:  96% percent reported that they had experienced problems at work due to domestic violence, with over 70% having been harassed at work, 50% having lost at least three days of work a month as a result of the abuse, and 25% having lost at least one job due to the domestic violence.²⁶  In short, domestic violence creates and exacerbates economic insecurity.

Even interactions between the batterer and his child can be dangerous—both for the child and for the mother if she is forced to have contact with him.   In some cases, batterers intentionally injure their children in an effort to intimidate or control their partners; in other cases, children are injured during attacks on their mother.²⁷  Whether or not there is physical abuse, there is nearly always emotional and psychological abuse; 80-90% of children living in abusive homes are aware of the violence and abuse.²⁸  Children commonly report feelings of worry, fear and terror.²⁹  The abuse affects their relationships with their father; those relationships are often a source of pain, resentment, disappointment, confusion and ambivalence.³⁰  Unfortunately, separation increases the danger of abuse for battered women.³¹  Because much of this violence is perpetrated before and after visits with the child, children’s exposure to this violence is increased.³²  Not surprisingly, those fathers who were physically or sexually abusing their children prior to separation continued to do so in post-separation visits.³³ 

While supervised visitation centers have been utilized as an avenue for allowing visitation between batterers and their children, there are not enough supervised visitation centers and in many cases the security in those centers is inadequate, staff is not trained in domestic violence, and women and children are abducted, harmed, or killed.  Thus, even supervised visitation centers are not always safe. 

Clearly, most fathers are not abusive.  But domestic violence impacts approximately one million women³⁴ and their children each year, and the incidence of domestic violence is particularly high within the population Congress seeks to reach with this legislation.³⁵  Thus Congress must not promote father involvement without recognizing that some fathers will have a history of domestic violence and that, in some cases, father involvement is not in the best interest of the children.  Contrary to the position of some fatherhood advocates, the mere presence of one’s biological parent is not the most important factor in a child’s successful upbringing.  Countless studies show that children who witness violence and those who are victims themselves suffer enormous physical, psychological, and social damage.³⁶ 

Children who have been abused and neglected are more likely to perform poorly in school, to commit crimes, to experience emotional and sexual problems and to abuse alcohol and substances.³⁷ Any “fatherhood initiative” should explicitly recognize this reality and should ensure that father involvement is not promoted for fathers with a history of domestic violence in the same manner as it is for other fathers.

Given the emphasis on marriage and unification, the pending fatherhood legislation fails to sufficiently resolve key domestic violence concerns.  While the original sponsors have made commendable efforts to address the problem, the bills nevertheless fail to adequately protect domestic violence victims.  The Responsible Fatherhood Act (S.653, H.R. 1300) findings address the issue well.  S. 685, S. 653 and H.R. 1300 require fatherhood programs to coordinate with a domestic violence program.  They also suggest that one of the ways in which a program can fulfill its requirement to promote marriage is by teaching on how to control aggressive behavior and disseminating information on the causes of domestic violence and child abuse. 

The Child Support Distribution Act (H.R. 1471) also suggests disseminating information on the causes and treatment [sic] for domestic violence and child abuse as one means of promoting marriage and requires every fatherhood program to give information and referrals on the matter.  Given the proclivity for batterers to seek visitation and custody of their children as a means of prolonging the abuse, all of the bills include a key prohibition on use funds for court proceedings around visitation or custody, and legislative advocacy.

While well intentioned, the language does not provide essential safeguards.  Where collaboration is required, the bills do not ensure collaboration with a recognized expert in the field of domestic violence, nor do they fund the mandated collaboration.  H.R. 1471 does not even require such collaboration, and instead relies on its national fatherhood program to piece the materials together for distribution to the other programs.  None of the bills require that program employees be trained by recognized experts in the field of domestic violence on domestic violence and its impact on children.  Nor do they require the fatherhood programs to assess whether participants in the program have a history of domestic violence, or describe procedures for dealing with such participants—including, among other things, how the program would alter its policy of promoting marriage or father involvement for such a participant, and what precautions would be taken to ensure that any involvement with the child was safe for the mother and child.      

Where the very lives of these women and children are at stake, we cannot afford to encourage the involvement of fathers who have a history of domestic violence without taking every reasonable precaution, and without recognizing that in some cases father involvement is not appropriate.  Unfortunately, these bills continue to promote marriage and father involvement without these precautions.  This Congress has consistently recognized that domestic violence is a serious national problem and has made efforts to minimize the severe risk to women and children from that violence.  We urge you to reject fatherhood legislation without these important safeguards.

Conclusion

Congress should be concerned with ending poverty and supporting economic security for all.  Addressing the barriers to economic security for low income noncustodial parents and other low income individuals is a laudable step towards that goal, but Congress should not raid TANF dollars to do so.  TANF money must continue to address the barriers directly affecting those who make up the welfare rolls: custodial parents and their children. 

We applaud Congress’ proposed child support reforms and hope to assist Congress in ensuring that when child support can be paid and safely collected, it will be passed through to the children.  Furthermore, NOW Legal Defense supports Congress’s continued interest in and support for men’s increased responsibility for contraception, childcare, and positive, healthy relationships with their children, as well as cooperative co-parenting between custodial and non-custodial parents.  Such programs should be available across income levels and should be crafted to ensure safety and advance gender equality. We look forward to working with Congress to achieve these goals. 

Thank you for the opportunity to submit this testimony.

¹ SeeTolman, R.M. & Raphael, J., Univ. of Mich. & Center for Impact Research, A Review of Research on Welfare and Domestic Violence, Journal of Social Issues, 56(4) 655-682 (2000), “Prevalence” sec.
² Id at “Child Support” sec.; Eleanor Lyon, National Resource Center on Domestic Violence, Welfare, Poverty, and Abused Women: New Research and its Implications 10 (Oct. 2000).
³ Lyon, supra note 2.
⁴ Tolman & Raphael, supra note 1, at “Child Support” sec.
⁵ See American Psychological Association, Violence and the Family: Report of the American Psychological Association Presidential Taskforce on Violence and the Family, 40 (1996).
⁶ See id.
⁷ See D.G. Saunders, Child Custody Decisions is Families Experiencing Women Abuse, 39 Soc. Work 391, 51-59 (1994).
⁸ United states Census Bureau, Current Population Reports, Series No. p60-210, Poverty in the United States: 1999 (2000), available at "http://www.census.gov/pord/2000pubs/p60-210.pdf.
⁹ See Statement on Equal Pay, Submitted to the Senate Comm. on Health, Education, Labor, and Pensions, June 22, 2000 (statement of Irasema Garza, Director of Women’s Bureau, U.S. Dep’t of Labor) [hereinafter Statement on Equal Pay].  According to the TANF Report to Congress 2000, 59% of low-income single mothers with kids under the age of 18 are employed.
¹⁰ National Committee on Pay Equity, The Wage Gap: 1999, available at http://www.feminist.com/fairpay/f_wagegap.htm.
¹¹ Statement on Equal Pay, supra note 9, at vi.
¹² See id. 
¹³ See United States Census Bureau, Current Population Survey (206-207), Poverty in the United States (1998).
¹⁴ See Arloc Sherman, Children’s Defense Fund, Poverty Matters: The Cost of Child Poverty in America, 1 (1997). 
¹⁵ Gwendolyn Mink, Welfare’s End 38-39 (Cornell Univ. Press 1998).
¹⁶ See Institute for Women's Policy Research, Working First But Working Poor: The Need for Education and Training Following Welfare Reform, ch. 7 (to be released Sept. 3, 2001) (report to the NOW Legal Defense and Education Fund).
¹⁷ See Wendell Primus, Center on Budget and Policy Priorities, What Do We Know About Welfare Reform?, Coalition on Human Needs Briefing, Apr. 26, 2000.
¹⁸ See CNN, Survey: Only a Quarter of U.S. Households of “Traditional” Families, Nov. 24, 1999.
¹⁹ Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).
²⁰ Loving v. Virginia, 388 U.S. 1, 12 (1967).
²¹ See Patricia Horn, Beating Back the Revolution, Dollars and Sense, Dec. 1992, at 21.
²² See Joan Zorza, Woman Battering: A Major Cause of Homelessness, 28 Clearinghouse Rev. 383, 384-85 (1994).
²³ See Jody Raphael & Richard M. Tolman, Taylor Inst. and the Univ. of Mich. Research Dev. Ctr. on Poverty, Risk and Mental Health, Trapped by Poverty, Trapped by Abuse: New Evidence Documenting the Relationship Between Domestic Violence and Welfare, 12 (1997).
²⁴ See Mary Ann Allard et al., McCormack Inst., In Harms Way? Domestic Violence, AFDC Receipt and Welfare Reform in Mass., 12, 14 (1997) (64.9% of 734 women); Ellen L Bassuck et al., The Characteristics and Needs of Sheltered Homeless and Low-Income Housed Mothers, 276 JAMA 640 at 12, 20 (1996) (61.0% of 220 women); William Curcio, Passaic County Study of AFDC Recipients in a Welfare-to-Work Program: A Preliminary Analysis, 12, 14 (1997) (57.3% of 846 women). 
²⁵ See United States General Accounting Office, Report to Congressional Committees, Domestic Violence: Prevalence and Implications for Employment Among Welfare Recipients, 7 (1998).
²⁶ SeeJoan Zorza, Woman Battering: High Costs and the State of the Law, 25 Clearinghouse Rev. 421 (1991).
²⁷ See Einat Peled, Parenting by Men Who Abuse Women: Issues and Dilemmas, Brit. J. Soc. Work, Feb. 2000 at 29.
²⁸ SeeJanet Carter & Susan Schechter, Family Violence Prevention Fund,  Suggested Components of an Effective Child Welfare Response to Domestic Violence (1997).
²⁹ See Peled, supra note 17, at 27.
³⁰ See id.
³¹ See id. at 28.
³² See id.
³³ See Peled, supra note 17, at 28.
³⁴ See Callie Marie Rennison & Sarah Welchans, U.S. Dep’t of Justice, Intimate Partner Violence 8 (May 2000). According to the U.S. Department of Justice, intimate partners commit 937,490 violent crimes against women and 144,620 against men annually.
³⁵ See U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence, 33 (July 2000).
³⁶ See Lucy Salcido Carter et al., Domestic Violence and Children: Analysis and Recommendations, 9 The Future of Children 3, at 5-7 (1999).
³⁷ See Joy D. Osofsky, “The Impact of Violence on Children,” The Future of Children:  Domestic Violence and Children, Winter 1999, at 37 (1999).