California’s Military Reservists Need SB 1082
By Jeffery M. Leving and Glenn Sacks

Since the terrorist attacks of September 11, 2001, over 450,000 military reservists and National Guard members have been called up to active duty. According to the Defense Department, over 40% of them lost substantial family income upon being activated. For fathers who serve, a knotty problem in the child support system can turn them into deadbeats and outlaws.

Child support orders are based on a reservists’ civilian pay. When called up a reservist’s child support obligation can jump overnight from 30 or 40% of take-home pay to 60 or 70%.

For example, a California naval reservist who has three children and who takes home $4,000 a month in his civilian job would have a child support obligation of about $1,600 a month. If this father is a petty officer second class (E5) who has been in the reserves for six or seven years--a middle-ranked reservist--his active-duty pay would only be $2,205 before taxes, in addition to a housing allowance.  Under current California child support guidelines, the reservist’s child support obligation should be $550 a month, not $1,600.

In theory, any time a child support obligor loses his job or suffers a pay cut he can go to court and get a downward modification. In reality, courts move slowly and usually resist granting downward modifications. Since reservists are sometimes mobilized with as little as one day's notice, few are able to obtain modifications before they leave.

As a result, noncustodial parents whose child support is deducted automatically from their pay may lose most of their income and incur huge debts or face home foreclosures.

For reservists who pay child support directly to the custodial parents, falling behind creates an arrearage which is accelerated by interest and penalties.  An arrearage of only $5,000 can become a felony at which point the child support obligor can be incarcerated or economically crippled by a barrage of harsh civil penalties, including seizure of driver's licenses and business licenses. Yet the federal Bradley Amendment prohibits judges from wiping out child support debts, even if the debts were incurred as a direct result of military service.

In addition, reservists who return from long deployments often find that their civilian earning capacity is greatly diminished. This is particularly true for the estimated 30,000 small business owners who have been called up since 2001. Their businesses are often destroyed by their absence, and family law courts are notoriously unforgiving of fathers who suffer wage drops. Many if not most will have their former incomes imputed to them, meaning that their child support will not change despite their drop in income.

The situation troubles military officers, who note that problems at home can sap morale in the field. James, an 18-year veteran of the Navy and the commander of a large West coast Naval Reserve unit, says:

"My people are sacrificing a lot to serve. I want them focused on our assigned mission. I don't want them worrying that their own government might come after them."

The problem cries out for legislative intervention but to date only Missouri has adequately addressed the problem by passing a law in the days leading up to the first Gulf War.  For those reservists who have already been mobilized, only a federal reform of the Bradley amendment—already widely seen as bad law within family law circles--can truly solve the problem.

However, SB 1082, sponsored by Senators Denise Moreno Ducheny (D-San Diego) and Bill Morrow (R-Oceanside), will help. The bill requires family courts to take special measures to accommodate activated reservists who need downward modifications.  Moreover, in cases where the child support is owed to the state for reimbursement of welfare or foster care costs, the bill provides a procedure which allows and encourages the state to offer a compromise which reflects the change in income during the period of active military service.  This is important because the state is the obligee in a large percentage of California child support cases.

Laws granting deployed soldiers special protections against civil legal actions date back to the Civil War, and these laws have been repeatedly revised during wartime to protect those who serve. SB 1082, which enjoys wide bipartisan support and has over two dozen legislative cosponsors, is an important and long overdue step towards solving a complex and serious problem.

This column was first published in the Riverside Press-Enterprise (4/14/05).

Jeffery M. Leving is one of America's most prominent family law attorneys. He is the author of the book Fathers' Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. His website is www.dadsrights.com.

Glenn can be reached via his website at www.GlennSacks.com or via email at .

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