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SupportGuidelines.com

The following article appeared in slightly different form in Volume 14, Number 1 of the American Journal of Family Law. All rights reserved. This article is reprinted here by permission and may not be further reprinted without the express permission of Laura Wish Morgan.

THE CUSTODIAL PARENT'S DUTY TO ACCOUNT TO THE NONCUSTODIAL PARENT FOR HOW CHILD SUPPORT MONEY IS SPENT

Laura Wish Morgan

I. WHO PAYS, OR WHO DOESN'T PAY, CHILD SUPPORT

In March 1999, the United States Bureau of the Census issued its latest report on the collection of child support. U.S. Census Bureau, U.S. Dep't of Commerce, Child Support for Custodial Mothers and Fathers: 1995 (Current Population Reports, Series P-60, No. 196, March 1999). According to this report, approximately 22.8 million children under the age of 21 lived with 13.7 million custodial parents, while the other parent lived elsewhere. Only 58% of these 13.7 million custodial parents had child support awards of any sort. The rest had no child support awards at all. The report further states that total child support awards due in 1995 were $28.3 billion. Yet, only $17.8 billion, or 63%, of the child support actually owed was paid.

Despite the advent of child support guidelines, which were supposed to increase compliance, in 1995, the rate of compliance was still less than 2/3. This poor compliance rate gives lie to the observations of the esteemed Professor Harry D. Krause, who stated in 1989:

I think the "better enforcement debate" is all but over. With mandated, formula-based setting of support obligations, with payroll deductions of support owed, and with computer-provided nationwide access to support-owing parents, the law now provides an effective arsenal for imposing the obligation as well as collecting child support.

Harry D. Krause, Child Support Reassessed: The Limits of Private Responsibility and the Public Interest, 1989 U. Ill. L. Rev. 367, 379-80 n. 56 (1990).

What is the reason for such poor compliance? Noncustodial parents have put forth many reasons why they don't pay. In one study, the following reasons were given by parents for not paying support:

  No money to pay 38 percent
  Not allowed to visit 23 percent
  No control of spending 14 percent
  Did not want child 13 percent
  Not the father 12 percent

Sumati Dubey, A Study of Reasons for Nonpayment of Child Support by Noncustodial Parents, 1996 Journal of Sociology and Social Welfare (abstract available). See also Daniel R. Meyer, Compliance with Child Support Orders in Paternity and Divorce Cases (Institute for Research on Poverty, Madison, Wisconsin, 1997) (full text); Deena Mandell, Fathers Who Don't Pay Child Support: Hearing Their Voices, 23 Journal of Divorce and Remarriage 85 (1995) (abstract available).

The most common reason put forth is that the noncustodial parent simply cannot afford to pay the child support award in full. Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 24 Fam. L. Q. 1, 13 (1990). This, however, cannot be the reason for most obligors. Seventy percent of noncustodial parents have incomes of at least twice the poverty line. Elaine Sorensen, A National Profile of Nonresident Fathers and Their Ability to Pay Child Support, 59 Journal of Marriage and the Family 785 (1997); Jan Larson, Everyone Pays When Dad's A Deadbeat, 1992 American Demographics 39 (July 1, 1992).

Another commonly advanced reason for non-compliance is that noncustodial parents don't see their children often enough to feel connected to the child. See also Judith A. Seltzer, Sara S. McLanahan, and Thomas L. Hanson, Will Child Support Enforcement Increase Father-Child Contact and Parental Conflict After Separation?, in Fathers Under Fire (Irwin Garfinkel, et al., eds., 1998); David L. Chamber, Making Fathers Pay 127 (1979); Judith A. Seltzer & Yvonne Brandreth, What Fathers Say About Involvement with Children After Separation, 15 Journal of Family Issues 49 (1994). Although there is evidence that visitation and joint custody are associated with higher child support payment rates, see U.S. Census Bureau, U.S. Dep't of Commerce, Child Support for Custodial Mothers and Fathers: 1995 (Current Population Reports, Series P-60, No. 196, March 1999), the evidence showing a direct causal link between visitation/custody and higher compliance is lacking. Chuck Shively, Examining the Link Between Access to Children and Payment Support, 11 Divorce Litig. 85 (May 1999). See also Diane N. Lye, "Scholarly Research on Post-Divorce Parenting and Child Well-Being," in Report to the Washington State Gender and Justice Commission and Domestic Relations Commission (June 1999) (full text). Again, this cannot be the reason for such high rates of noncompliance.

Another common reason advanced by noncustodial parents for lack of compliance with child support orders is that they don't believe the custodial parent is using the child support payments for the benefit of the child. See Judith Wallerstein & Sandra Blakeslee, Second Chances 136 (1990); Leslie J. Harris et al, Family Law 470 (1996); David M. Betson, Fair Shares: Meeting the Financial Needs of Children After Divorce, in Child Support: The Guideline Options 139 (Institute for Research on Public Policy 1994). Typical of this response is a letter that appeared in the Lexington, Kentucky Herald-Leader on Monday, October 18, 1999, by Gary Ferguson, a father's rights activist, which stated:

To really solve the problem of delinquent fathers, we must try to find the root cause of fathers' failure to pay child support. . . . What can we do to remedy this situation? I believe the answer lies in one word: accountability. If fathers could see where their money is going and can be assured that their children are receiving the money, then, I believe, many fathers would be more likely to maintain their child support payments.

(Complete text, visited October 19, 1999).

This is a reason that courts and legislatures have glommed on to, perhaps because it is a reason they feel they can address. Thus, in the unceasing effort by federal and state government to increase the rate of child support compliance, some legislatures have enacted statutes and some courts have developed a body of law under which a court may require the custodial parent to account for how child support is spent.

This article will argue that these type of accounting statutes are unwise public policy, because they give the noncustodial parent inordinate control over every day expenditures for child support to the detriment of the custodial parent's decision-making authority. Further, and perhaps more importantly, there is no evidence that such accounting statutes actually cause greater compliance with child support orders. Rather, it may be argued that the ability to call for an accounting results in lower rates of compliance, because the award is more easily challenged. The answer to the question of how to increase compliance must lie elsewhere.

It should be noted at the outset that the duty to account for how child support is spent should not be confused with a custodial parent's fiduciary duty to account under the Uniform Gift to Minors Act, or with the court's authority to impose a trust on child support received to insure that the recipient uses the child support for the child. See, e.g., Boyt v. Romanow, 664 So. 2d 995, 997 (Fla. DCA 1995) ("it appears a considerable part of child support monies will be devoted to the mother's charge card obligations or real and personal property purchases and luxuries"); Passemato v. Passemato, 427 Mass. 52, 691 N.E.2d 549, 552 (1998) (spendthrift mother ordered to establish educational trust fund for children). Cf. Resong v. Vier, 459 N.W.2d 591, 595 (1990) (in the absence of factual findings that the mother was incapable or unwilling to wisely spend the child support money, it was error for the court to dictate how those funds be spent). See generally Judith G. McMullen, Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations, 32 New Eng. L. Rev. 439 (Winter 1998); Annotation, Court's Establishment of Trust to Secure Alimony or Child Support in Divorce Proceedings, 3 A.L.R.3d 1170 (1965).

II. STATES THAT AUTHORIZE ACCOUNTING

The idea of a noncustodial parent requesting that a custodial parent account for how child support is spent is not new. What is new is having the court order such an accounting, thereby bringing the power of the state behind such requests.

In Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008 (1987), the Supreme Court considered the 1984 amendment to AFDC that required that a family's eligibility for benefits take into account the income of all parents, brothers, and sisters living in the same house. In particular, the Court considered whether that requirement violated the Fifth Amendment to the Constitution when it is applied to require a family wishes to receive AFDC benefits to include within its unit a child for whom child support payment were being made by a noncustodial parent.

The majority held that the amendments were not unconstitutional. The dissent argued that considering one child's support as benefitting the entire family was an unconstitutional taking of the child's property. Interestingly, the dissent argued that requiring an accounting from the custodial parent might alleviate the concerns of the majority:

If the Government is concerned that some mothers may be violating their fiduciary duty to their child by using the support payment for all household members, it could easily require as a condition of AFDC participation that the mother account for the use of child support money. . . . It may be that the accounting will inform the father that the money is being used against his wishes, so that he will demand that it be used for his child. Families may resolve this disagreement in various ways, but the resolution will reflect the decision of the parents, not the Government, as to the best way to meet the needs of the child.

483 U.S. at 630, 107 S. Ct. at 3032-33.

The dissenters obviously saw the solution of a noncustodial parent's disapproval not in government or court interference in the family, but in family decision-making.

Nonetheless, eleven states have statutes that allow the court to demand an accounting from the custodial parent of how child support is spent. Colo. Rev. Stat. Ann. § 14-10-115(3)(b)(III) (1999); Del. Code Ann. tit. 13, § 518 (1994); Fla. Stat. Ann. §61.13(a)(1) (Supp. 2000); Ind. Code Ann. § 31-16-9-6 (1997); Kan. Stat. Ann. § 60-1616(f) (1995); La. Rev. Stat. Ann. § 9:312 (Supp. 1999); Mo. Rev. Stat. § 452.342 (1997); Neb. Rev. Stat. § 42-364(6) (1999); Okla. Stat. tit. 43, § 118(B)(21) (Supp. 1999); Or. Rev. Stat. § 107.105(1)(c) (Supp. 1998); Wash. Rev. Code Ann. § 26.23.050(2)(a)(ii) (Supp. 1999). Alabama also authorized an accounting under the specific facts of the case, McDuffie v. Holland, 690 So. 2d 386 (Ala. Civ. App. 1996), and New York has hinted that such an action may lie, although current practice indicates otherwise.

The statutes vary in the level of proof the noncustodial parent must present in order to obtain the accounting from the custodial parent. A number of statutes provide no standards. For example, the Colorado statute, Colo. Rev. Stat. Ann. § 14-10-115(3)(b)(III) (1999), provides:

Upon request of the noncustodial parent, the court may order the custodial parent to submit an annual update of financial information using the approved standardized child support guideline forms, including information on the actual expenses relating to the children of the marriage for whom support has been ordered.... If the noncustodial parent claims, based upon the information in the updated form, that the custodial parent is not spending the child support for the benefit of the children, the court may refer the parties to a mediator to resolve the differences.

Similarly, the Florida statute, Fla. Stat. Ann. § 61.13(1)(a) (Supp. 2000) provides:

The court initially entering a child support order shall also have continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.

The Oklahoma statute, Okla. Stat. Ann. tit. 43, § 118(B)(21) (Supp. 1999) likewise provides:

Child support orders may include such provisions as the district or administrative court deems appropriate to assure that the child support payments to the custodial parent are used for the support of the child.

The Oregon statute, Or. Rev. Stat. § 107.105(1)(c) (Supp. 1998), also provides that the court may, at any time, require an accounting from the custodial parent with reference to the use of the money received as child support. There is no required showing of necessity or good cause.

Some statutes provide that the court may order the accounting "for good cause shown." For example, the Delaware statute, Del. Code Ann. tit. 13, § 518 (1994), provides:

A person who receives funds from another person for the support of a child in his or her care is a fiduciary with respect to such funds and may be ordered by the court to account for the expenditures and management of such funds on application by any payor of such funds for good cause shown. Any application filed for such an accounting shall state with particularity the reasons why it is being sought and the basis for believing that such an accounting is necessary.

Louisiana, La. Rev. Stat. Ann. § 9:312 (Supp. 1999), Missouri, Mo. Rev. Stat. § 452.342 (1997), and Washington, Wash. Rev. Code Ann. § 26.23.050(2)(a)(ii) (Supp. 1999), also require a showing of good cause before an accounting may be ordered. The Indiana statute, Ind. Code Ann. § 31-16-9-6 (1997), similarly states that after a "proper showing of necessity," the court may order an accounting.

At the opposite end of the spectrum is the Nebraska statute, Neb. Rev. Stat. § 42-364(6) (1999), which provides that an accounting may be had only after evidence of "abusive disregard" of child support:

Upon application, hearing and presentation of evidence of an abusive disregard of the use of child support money paid by one party to the other, the court may require the party receiving such payment to file a verified report with the court as often as the court shall require stating the manner in which such money is being used.

The Kansas statute, Kan. Stat. Ann. § 60-1616(f) (1995), is an accounting statute with a difference. Instead of making the custodial parent account for child support, the court can change custody if it finds that child support is not being spent for the benefit of the child:

Repeated child support misuse may be considered a material change of circumstances which justifies modification of a prior order of child custody.

Thus, although this statute on its face states grounds for modification of custody, it is, in fact, an accounting statute: the custodial parent may lose custody for failing to adequately account for child support.

Alabama, under the unusual facts of the case, also allowed an accounting. In McDuffie v. Holland, 690 So. 2d 386 (Ala. Civ. App. 1996), the parties agreed that the father would pay as child support $500 per month plus 25% of all moneys or other benefits the father would receive as the result of a personal injury suit filed on his behalf. Pursuant to this agreement, the father paid a lump-sum award of $61,434.31 to the mother for child support. The mother, however, brought a rule to show cause, alleging that the father had not complied with the agreement, and owed additional support. After trial on the issues, the trial court ordered an accounting, and the mother appealed.

The appellate court held that the trial court has jurisdiction to protect the interests of the children with scrupulous care. This jurisdictional authority necessarily includes the authority to order an accounting where there is evidence that a significant amount of money awarded to a custodial parent for child support is not being used for the benefit of the child. Consequently, because the mother could not account for $30,000, the trial court's order for an accounting was not an abuse of discretion. 690 So. 2d at 390. See also R.G. v. G.G., No. 2981140 (Ala. Civ. App. February 18, 2000) (over dissent, appellate court concluded that trial court erred in failing to award the husband an accounting of the monthly child-support payments made on behalf of the child when the mother's claimed expenses were unreasonable).

New York is also appears amendable to the idea of an accounting. In Schwarzman v. Schwarzman, 88 Misc. 2d 866, 388 N.Y.S.2d 993 (Sup. Ct. 1976), the ex-husband requested an accounting from the ex-wife. The court did not dismiss the idea altogether, but rather held that there was no good cause to required such an accounting:

Furthermore, when the court contemplates the cost of raising four infant children on Long Island under current economic conditions and any minimal standard of living, one must acknowledge that $15 weekly per child is a mere pittance. With this in mind, the court denied from the Bench the plaintiff's application for an accounting from his former wife as to how that pittance was expended in behalf of each of his four children. Such a request defies common sense and this court will not allow such harassment.

388 N.Y.S.2d at 995. See also Alexandre v. Davis, 90 Misc. 2d 368, 394 N.Y.S.2d 757 (Sup. Ct. 1976) ("Defendant has failed to establish a triable question of fact with respect to his counterclaim for an accounting"); In re Diann P., 86 Misc. 2d 844, 383 N.Y.S.2d 1014 (Fam. Ct. 1976) ("Respondent's request for an accounting of all support payments received by petitioner, and the use thereof, must be denied, as no issues relating to support and alimony are before this court").

More recent New York law suggests, however, that a request for an accounting will be limited to those cases where the parents' total gross income exceeds $80,000 per year and, under Cassano v. Cassano, 651 N.E.2d 878 (N.Y. 1995), \the custodial parent must demonstrates the "reasonable needs" of the child. This was the case in Mitnick v. Rosenthal, 688 N.Y.S.2d 150 (1999), where the parties' total income was significantly more than $80,000 per year. The court held:

We . . . agree with the award of unspecified or "open-ended" child support for medical expenses and such "extras" as camp, tutoring, school tuition, recreation and transportation, to be fixed on the basis of annual accountings by plaintiff, and not to exceed $6000 per month.

688 N.Y.S.2d at 151.

There is surprisingly little authority interpreting and applying the accounting statutes. Nonetheless, the cases are rather consistent that an accounting should not be ordered unless there is almost overwhelming evidence that the custodial parent is not applying the child support payments toward the benefit of the child.

In Olive v. Olive, 650 N.E.2d 766 (Ind. Ct. App. 1995), the court considered the Indiana statute authorizing an accounting "upon a showing of proper necessity." There, the court stated that it would be loath to order an accounting, because it would place an undue burden on the custodial parent:

We recognize that although a custodial parent may be able to account for direct costs, such as clothing and school expenses, it may be extremely difficult to accurately account for indirect costs, such as housing, transportation, utilities, and food. Child Supp. G. 6. Thus, the authors of the Child Support Guidelines do not recommend that an accounting be ordered as a matter of routine. Child Supp. G. 6.

650 N.E.2d at 767-68.

Relying on Olive, the court also denied an accounting in Kovenock v. Mallus, 660 N.E.2d 638 (Ind. Ct. App. 1996). In that case, the husband testified that he was concerned that child support payments were being used to subsidize a business and the living expenses of the wife and her present spouse. In particular, the husband alleged that the wife and her present spouse had traveled to Europe, where the wife's family apparently resides, and had purchased two vehicles since the dissolution, although they reported a total household income of between $18,000.00 and $19,000.00 in 1993. The husband did not contend that the basic needs of the children were being ignored, but he maintained that one child was not provided with swimming lessons and that both children were sometimes dressed in shabby clothes. The appellate court concluded,

Here, the trial court found that the basic needs of the children were being met. After Husband had rested, the court concluded that there was no evidence of "serious" impropriety, such as the misappropriation or dissipation of support payments. We agree with the court that where, as here, the children's basic needs are met, some disagreement between the parties concerning whether adequate resources are being devoted to the children's particular "wants" as distinct from their actual needs is insufficient, by itself, to support a showing of necessity for an accounting.

660 N.E.2d at 642.

In Delaware, where the statute permits a support obligor to apply to the court for an accounting where the petition "states with particularity the reasons why it is being sought," Del. Code Ann. tit. 13, § 518 (1994), the court in Dunfee v. Mace, No. F-8651 (Del. Fam. Ct. May 15, 1991), refused to allow an accounting, even though the petition had alleged that the child had ill-fitting clothes and clothes that were out of season. Moreover, the general allegation that the support recipient could be using the money for drugs, alcohol, and other purposes was insufficient without specific allegations with specific facts that the child support is not being used for the child and is being used for illicit purposes.

In Florida, there is no requirement in the statute that the accounting be for good cause or based on particularity of allegations. Yet, such a requirement seems to have been imposed by case law. In Bacardi v. Bacardi, 727 So. 2d 1137 (Fla. 3d DCA 1999), the husband filed a request for an accounting, alleging that the wife was using money paid as child support to support her live-in boyfriend. The trial court ordered the accounting, but the appellate court reversed.

The appellate court held that because the parties' Marital Settlement Agreement stated that child support would be used to pay a variety of expenses, "including, but not limited to, the household expenses, utilities, maintenance, food in the home and away from home, transportation, lessons, entertainment, the housekeeper, etc.," it was evident that the parties had intended that the scope of legitimate child support expenditures be enormous in scope. The court concluded,

More significantly, no showing has been made in this case to warrant such a monumental intrusion into Kimberly's financial records.

727 So. 2d at 1138.

The court in Rico-Perez v. Rico-Perez, 734 So. 2d 1177 (Fla. 3d DCA 1999), echoed the principle that an accounting represents an unwarranted intrusion into the custodial parent's financial affairs. In this case, the husband claimed that his monthly child support payments of $6,750 were being misused, and he sought an appointment of a guardian of his minor son's property in the circuit court. The court held that before a guardian could be appointed, he must seek an accounting in the family court. The accounting, however, must not unduly intrude into the custodial parent's affairs or be otherwise burdensome.

Likewise, in Oklahoma, an accounting may be had when the court deems it "appropriate." Okla. Stat. Ann. tit. 43, § 118(B)(21) (Supp. 1999). Nonetheless, in Blocker v. Martin, 868 P.2d 1316 (Okla. Ct. App. 1996), the appellate court affirmed the trial court's denial of the noncustodial parent's request for an accounting of expenditures of child support payments, "in the absence of some evidence of abuse, custodial parents should not be required to account for child support they receive." 868 P.2d at 1318.

These cases make it clear that no matter the standard, a demand for an accounting is generally considered to be burdensome and intrusive. Thus, an accounting: (1) cannot be had so long as the children's needs are being met; (2) cannot be had if the parties agree to that child support payments encompass many expenses; (3) can be had only on particularized, specific allegation of how the child support funds are being used for illicit purposes.

III. STATES THAT DO NOT AUTHORIZE ACCOUNTING

Many states have explicitly rejected the authority of a noncustodial parent to request an accounting from the custodial parent for a variety of reasons. One reason is that the custodial parent holds the child support as a fiduciary for the child. E.g., Jenkins v. Jenkins, 567 N.E.2d 136 (Ind. Ct. App. 1991); Varner v. Varner, 588 So. 2d 428 (Miss. 1991); Carter v. Carter, 735 So. 2d 1109 (Miss. Ct. App. 1999). See also Office of Tony Center v. Baker, 366 S.E.2d 167 (Ga. 1988) (attorney's charging lien does not attach to child support payments because those payments are received and held by the custodial parent as a "trustee" for the child, and as a trustee the parent lacks sufficient ownership in the child support payments to grant a lien against the payments); Sue Davidson, P.C. v. Naranjo, 904 P.2d 354 (Wyo. 1995) (same). Thus, only the beneficiary, the child, can request an accounting; the noncustodial parent simply has no standing to request an accounting. See George Taylor Bogert, The Law of Trusts and Trustees § 970 at 363 (1983).

This principle was stated in Mississippi in Trunzler v. Trunzler, 431 So. 2d 1115 (Miss. 1983). There, the court stated,

We are of the opinion that the mother, is, of course, a fiduciary with her children and may be required to account to them but we do not think she is in a fiduciary relationship with her former husband. For this reason, we are of the opinion that the cause of action should have been brought by and on behalf of the children.

431 So. 2d at 1116.

Similarly, in the Georgia case of Cohen v. Cohen, 137 S.E.2d 469 (Ga. 1964), the father petitioned the court for an accounting and injunction, praying that the mother be permanently enjoined from misusing funds intended for the benefit of the minor children. The court stated,

While a divorced mother acts as a trustee or guardian of minor children where they are awarded to her and the father is required to pay child support and can only use said support funds for the benefit of the children, nevertheless the petition here fails utterly to show allegations of ultimate fact that the mother has misused or misapplied the funds or reasons why the petitioner is entitled to an accounting, there being none authorizes at law....

137 S.E.2d at 470. The same result was reached in North Carolina as well. Tyndall v. Tyndall, 153 S.E.2d 819 (N.C. 1967).

A second reason courts have given is that there is simply no statutory authorization for an accounting. For example, in the Arizona case of In re Marriage of Marce, 636 P.2d 1225 (Ariz. Ct. App. 1979), the court stated,

The remaining claim of misappropriate relates to alleged misappropriation of child support monies. Appellant contends that the appellee did not use all of the child support payments directly for the children's benefit, but used them for personal investments, and that therefore the appellant is entitled to a reduction of his obligation. We are aware of no requirement that a custodial parent make a direct accounting of all child support monies to the end of showing that all were directly spent on the children. If in fact the custodial parent no longer is in need of child support payments, or the payments being made are excessive, the use made of the payments might be a factor to be considered in weighing modification. The assertions here, however, do not establish any basis for modification.

636 P.2d at 1228-29. Accord Cohen v. Cohen, 137 S.E.2d 469, 470 (Ga. 1964). Illinois reached the same result. Williams v. Williams, 316 Ill. App. 6, 44 N.E.2d 63 (1942) (husband was not entitled to compel former wife to render an itemized accounting of expenditures of money contributed by husband for child support).

A third reason, closely related to the second, is that requiring an accounting would place an undue burden on the courts to supervise the custodial parent. In the Missouri case of D.M.S. v. P.E.S., 526 S.W.2d 361 (Mo. Ct. App. 1975), the court stated,

Without benefit of established precedent or direct case authority, the husband faults the trial court for not ordering the wife to render a yearly accounting to it concerning the amounts to be paid to her for child support. This point is without merit. To impress a continuing duty upon the already overburdened trial judges of this state to constantly monitor the expenditures of funds awarded for child support would be a specious requirement for at least two reasons. One, it would require them to summarily anticipate abuses by a wife respecting such awards; two, it is unnecessary because of a viable remedy for abuses in fact by way of a motion to modify.

526 S.W.2d at 363.

A fourth, and perhaps most persuasive, reason courts have refused to impose a duty of accounting on a custodial parent is that it would unduly interfere with the custodial parent's decision-making authority that all custodial parents are deemed to have. See generally 2 Homer H. Clark Jr., The Law of Domestic Relations in the United States § 20.2 at 482 (2d ed. 1987) (authority to make decisions concerning the child's care, education, religion or training, is attributed to the child's custodial parent). See also Uniform Marriage and Divorce Act § 408(a), 9A U.L.A. Part II 437 (1998) (the custodian may determine the child's upbringing, including his education, health care, and religious training).

For example, in the Wisconsin case of Resong v. Vier, 459 N.W.2d 591 (Wis. 1990), the court stated:

[T]he custodial parent should not lightly be stripped of her ability to make decisions concerning rearing her child. Eliminating a parent's right to make spending decisions is more akin to altering the parent's custodial powers than it is to a modification of the amount of child support....

In the absence of factual findings suggesting the more was incapable or unwilling to wisely spend the child support money, it was error for the court to dictate how those funds be spent.

459 N.W.2d at 595.

Simply stated, a noncustodial parent does not have the authority to petition the court to require an accounting of how child support monies are spent by the custodial parent, because such an imposition by the court would be an undue interference with the custodial parent's decision-making authority. For the same reason that a noncustodial parent cannot question interfere with the decisions made by the custodial parent concerning child care, education, religious training, or other every-day decisions, the noncustodial parent should not be able to accomplish the same interference by way of a demand for accounting.

One author has suggested, however, that if the parents have joint legal custody, and thus joint decision-making authority, the noncustodial parent should be able to request an accounting. See Judith G. McMullen, Prodding the Payor and Policing the Payee: Using Child Support Trusts to Create an Incentive for Prompt Payment of Support Obligations, 32 New Eng. L. Rev. 439 (Winter 1998).

IV. DOES ACCOUNTING ACHIEVE ITS GOAL?

As noted above, noncustodial parents have often stated that if they could just see how the child support money was being spent, they would more willingly comply with the child support order. If this were true, then compliance should be highest in those states that allow the noncustodial parent to demand an accounting. This is not the case, however. Indeed, compliance rates in those states that allow an accounting are below the national average.

Each year, the Office of Child Support Enforcement submits to Congress its report on collections of child support. The report contains a breakdown of each state's child support enforcement efforts, comprising total number of cases handled, total number of cases on which arrears are enforced, and total collection rates (full report). This report shows that in those states that allow accounting, compliance rates are below the national average.

Further, each year, Professor Maureen Pirog publishes a comparison of interest child support guidelines awards in the periodical Family Relations. In 1998, she also compared child support guidelines with average amounts of uncollected child support, ranking each state by its percentage of arrears. Maureen A. Pirog, Interstate Comparisons of Child Support Orders Using State Guidelines, 47 Family Relations 289 (1998) (text available). Again, this shows that in those state that allow accounting, compliance rates are below the national average. Can we conclude that if a noncustodial parent can demand an accounting, then he or she has less incentive to make timely payments?

Some states think so. Those states that have refused the noncustodial parent the right to an accounting did so for three reasons: (1) only the child, as beneficiary of the fiduciary duty of the custodial parent, may request an accounting; (2) requests for an accounting would place an undue burden on the courts; (3) requests for an accounting would place an undue burden on the custodial parent, effectively interfering with his or her right to make day-to-day decisions concerning the child.

The last reason is wise public policy and should be adopted by all courts. Custodial parents must be given the latitude to decide how child support will be spent: what clothes to buy, what camps to attend, what entertainment is appropriate and enriching. Allowing a noncustodial parent to demand an accounting effectively gives the noncustodial parent veto power over those decisions. It also imposes on the custodial parent tremendous record-keeping obligations that no one could meet. For example, part of the child support obligation is for transportation. Does the custodial parent have to keep track of gas and car maintenance? Part of the child support obligation is for housing. Does the custodial parent have to break down what part of the mortgage is for the child? Does that also apply to utilities?

The authority to demand an accounting has not increased child support compliance. The burdens placed on the custodial parent by an accounting thus outweigh any benefits the accounting might achieve. States should therefore be encouraged not to enact statutes that authorize an accounting.

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