Bradley Amendment

In United States law, the Bradley Amendment (1986, Public law 99-509, 42 U.S.C. § 666(a)(9)(c), Bill Bradley) requires state courts to prohibit retroactive reduction of child support obligations. Specifically, it:

• automatically triggers a non-expiring lien whenever child support becomes past-due.
• overrides any state's statute of limitations.
• disallows any judicial discretion, even from bankruptcy judges.
• requires that the payment amounts be maintained without regard for the physical capability of the person owing child support (the obligor) to promptly document changed circumstances or regard for his awareness of the need to make the notification.

But, like any other past-due debt, the obligee may forgive what is owed to them.

When past-due child support is owed to a state as a result of welfare paid out, the state is free to forgive some or all of it under what's known as an "offer in compromise".

History

The amendment text was included in the Sixth Omnibus Budget Reconciliation Act, 1986, bill S.2706.^[1][2]

Subtitle C: Miscellaneous Provisions - Amends part D (Child Support) of title IV of the Act to prohibit the retroactive modification of child support arrearages except with respect to such arrearages which accumulate after the obligee and entity which is issued the child support order receive notice that the obligor has pending an active application for modification of such order.^[2]

Senator Bill Bradley, Democrat of New Jersey, introduced the amendment in an earlier bill on May 5, 1986.^[3][4] It passed in the Senate with amendments with an 88-7 yea-nay vote on September 20, 1986.^[2]

Intent

The amendment was intended to correct a perceived imbalance between the power of the obligee (usually the mother) and the obligor (usually the father) during subsequent child support disputes. It had been alleged that a significant number of men were running up large child support debts and then finding a sympathetic judge, often in another state, to erase them.

Results

The Bradley Amendment is credited with increases in the collections success of wealthy debtors including a New York plastic surgeon who owed $172,000, a professional athlete who owed $76,000 and a yacht company owner who owed $50,000. The Bradley Amendment standardizes the treatment of interstate child support disputes (estimated at 40% of all cases according to Geraldine Jensen, president. Association to children for Enforcement of Support.

According to Sherri Z. Heller, Ed.D, Commissioner of U.S. Office of Child Support Enforcement, the child support system collects "about 58% of current support due." The US Department of Health and Human Services estimates that 68% of child support cases had arrearages owed in 2003 (a figure up from 53% in 1999 - however this information is based on data supplied only by the custodial parent so it be viewed with extreme doubt). Some believe that the process can never collect the full amount because a high proportion of obligors are unable to make the required payments. According to Ford Foundation Project Officer Ronald B. Mincy, between 16 percent and 33 percent of obligors are "turnip dads" (obligors earning less than $130 a week). According to one study 38% of non-custodial parents not paying child-support said they lacked the money to pay.

The Health and Human Services numbers above omit closed cases. Typically, cases are closed after four years of inactivity. Open or closed, past-due child support automatically triggers a non expiring lien.

Legality

In September 1999, Marilyn Ray Smith, the Chief Legal Counsel for the Massachusetts Department of Revenue, Child Support Enforcement Division gave the following testimony^[5] before the United States House of Representatives.

As you know, under the Bradley Amendment enacted by the U.S. Congress in 1986, a child support obligation becomes a judgment by operation of law as of the date that that it is due and unpaid. In addition, under Section 368 of PRWORA (42 U.S.C. § 666(a)(4)), an administrative lien also arises by operation of law against any unpaid child support. It is therefore not necessary to return to court after each payment is missed to get past-due support reduced to a judgment in order to obtain a lien or enforce a judgment. This means that a child support agency can move quickly to seize income and assets of a delinquent noncustodial parent without first passing through a judicial or quasi-judicial hearing process."

From 2004, the Bradley Amendment was challenged as unconstitutional and was the subject of a repeal effort; in February 2006 the court case was dismissed.^[6]

On March 10, 2013, a petition was posted on the Obama administration's We the People website to "stop" the Bradley Amendment, on the grounds that it was unconstitutional.^[7]

Controversy

In 2003, Keith McLeod, author of The Multiple Scandals of Child Support, testified^[8] before the United States House Committee on Ways and Means that

"The 1986 Bradley Amendment to Title IV-D forbids any reduction of arrearage or retroactive reduction for any reason, ever. This reinforces the approach that inability to pay is no excuse. Needless to say, there are endless stories of men who are now crushed by a debt they will never be able to pay because they were:

• In a coma
• A captive of Saddam Hussein during the first Gulf War
• In jail
• Medically incapacitated
• Lost their job but were confident of another so did nothing until it was too late
• Did not know they could not ask for retroactive adjustments and waited too long
• Could not afford a lawyer to seek adjustment when adjustment was warranted
• Wouldn’t use the legal system even if they could, feeling it alien from their world, so don’t ask for a reduction when the legal establishment expects them to.

Some say this measure is a violation of due process and cruel and unusual as it removes the use of human discretion from dealing with individual cases, not to mention removing human compassion. But non-custodial fathers do not have the money to fight a constitutional case."

Notable cases

The Amendment has been a controversial law and has resulted in several notorious examples:

• Bobby Sherrill, a Lockheed employee in Kuwait from North Carolina, was captured by Iraqis and spent nearly five months as an Iraqi hostage. Sherrill was arrested the night after his release for not paying $1,425 in child support while he was a hostage.^{[9][10][11][12]}
• Clarence Brandley, a Texas high school janitor, was wrongly convicted in 1980 of murder.^[13] After spending many years in prison and on death row,^[14] he was released in 1990 and he then sued the state of Texas for wrongful imprisonment in 1993.^[15] The state then responded with a bill for nearly $50,000 in child support that had not been paid while in prison.^[10][11] Dianna Thompson of The American Coalition of Fathers and Children told the Houston Chronicle that federal law makes it illegal for states to forgive child support payments regardless of circumstance.^[16] Michael McCormick, of the American Coalition of Fathers and Children said, concerning child support payments, "I'm not aware of any state where it says a wrongly convicted individual is relieved of their obligation."^[17] Despite paying child support every month since his release via wage garnishment, Brandley's child support total reached $73,000 in 2003, when a judge reduced his total to $22,000; however, this amount is still more than triple the $7,000 in back child support Brandley owed at the time of his arrest in 1980.^[15] Recently, Brandley lost his job in the economic downturn in 2008; he has since lost his car and house as the child support bills and interest keep coming.^[15]
• Taron James, a U.S. Navy veteran from California, was forced to continue to pay child support until 2006, even after the child was demonstrated by DNA test in 2001 to be not his; James paid $12,000 in such payments.^[18][19] A California District Court of Appeal eventually set aside the paternity judgment against James in 2006, but the same court denied James' request to have his child support payments reimbursed.^[20]
• Larry Souter was wrongly convicted of murder in 1992 and spent 13 years in prison^[21] before being exonerated and released in 2005. Upon release, he was ordered to court to explain why he shouldn't be held in contempt for failing to pay $38,000 in combined back child support, interest, and penalties.^[21] Payments were not suspended for at least 3 years while he was in prison.^[21] The interest and penalties accumulated while he was still in prison, and presumably unable to pay.
• Geoffrey Fisher was taken to court in 2001 due to being delinquent on child support payments, and had his driver's license suspended.^[22][23] Fisher pushed for custody, and a state-ordered paternity test determined he was not the biological father.^[22][23] In January 2002 a judge determined he no longer had to pay child support, but the attorney general's office claimed that Fisher still owed $11,450, approximately 3 year's worth of back support payments from the time of the child's birth until the time of the paternity test.^[22][23] State officials have stated that this is because Fisher failed to file a court motion to relieve himself of financial responsibility to the child, and that Fisher is thus regarded as the legal father and responsible for child support.^[23]

References