Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P39 ppsx

may deny a subsequent request for permission to move if the move is viewed as an attempt to hinder the other parent’s visitation. Parental Kidnapping Parental KIDNAPPING occurs when one parent deprives the other of his or her legal right to custody or visitation by illegally taking the child out of the jurisdiction. It is outlawed by the federal Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A [Supp. 1993]), which applies the FULL FAITH AND CREDIT CLAUSE of the U.S. Constitution to child-custody cases, meaning that each state must abide by custody decisions made by another state’s courts if the other state would be bound by those decisions. The law was enacted to respond to cases in which one parent leaves the state that has jurisdiction. However, in 1998, the U.S. Supreme Court ruled in Thompson v. Thompson (484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. 2d 512) that the existence of two different state-custody decrees is not, itself, a reason for federal involvement under this law. The Parental Kidnapping Prevention Act often works in concert with state laws, such as state adoptions of the Uniform Child Custody Jurisdiction and Enforcement Act, in order to facilitate the return of a child to the state that has proper jurisd iction. Many custody provi- sions in the federal law are similar to those in the corresponding state laws. Termination of Custody Most types of custody end when the child is emancipated (i.e., considered a legal adult) by becoming self-supporting, by marrying, or by reaching the AGE OF MAJORITY as specified by state law. At that point and not before then the family court loses its power to determine custody. FURTHER READINGS Bahr, Stephen J., et al. 1994. “Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference?” Family Law Quarterly (summer). Minnesota Joint Physical Child Custody Presumption Study Group. 2009. “Minnesota Joint Physical Child Custody Presumption Study Group.” Text available online at http://www.leg.state.mn.us/lrl/lrl.asp; website home page: http://www.leg.state.mn.us/ (accessed August 19, 2009). Stahl, Philip M., and Leslie M. Drozd. 2007. Relocation Issues in Child Custody Cases. Philadelphia, PA: Haworth Press. CROSS REFERENCES Illegitima cy; Gay and Lesbian Rights; Family Law; Parent and Child. CHILD LABOR LAWS Child labor laws include federal and state legislation that protects children by restricting the type of work they perform and the hours during which they are employed. The specific purpose of child labor laws is to safeguard children against harm generally associated with child labor, such as exposure to hazardous, unsanitary, or immoral conditions, and overwork. Child labor legislation primarily applies to business enterprises, but in some states NONPROFIT activities are within the purview of the law. The federal law controlling child labor is the FAIR LABOR STANDARDS ACT of 1938 (FLSA) (29 U.S.C. §§ 201 et. seq.), administratively regulat- ed through 29 C.F.R. Part 570 et seq. The law is enforced by the U.S. LABOR DEPARTMENT Wage and Hour Division. Federal law provides the basic structural framework for certain prohibi- tions or restrictions placed on the employment of children. Regulations further delineate mini- mum requirements to include age restrictions, MINIMUM WAGE provisions, occupational restric- tions, hours of work restrictions, and certain prohibited fields or occupations (e.g., hazardous occupations, liquor and lottery sales, or occupa- tions involving moving vehicles or power- driven machinery). Moreover, all states and the federal government require that children have work permits on file with their employers that certify their ages (29 C.F.R. § 570.9). Each state also has its own set of child labor laws that may further prohibit or restrict employment of children. The laws vary in detail from state to state, particularly for those states where seasonal or agricultural employment is high. However, federal law preempts state law, and so all state laws must comply with all federal minimum requirements. Specific provisions of the particular child LABOR LAW govern the AGE OF MAJORITY. Some laws permit minors to be employed in certain activities if their parents satisfy stated conditions concerning supervision, control, and approval. The state has the right to prohibit parents from binding a minor to an employment contract based upon the theory that parents cannot GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 368 CHILD LABOR LAWS diminish benefits that the law confers to children. Cursory directions to subordinates are not sufficient to fulfill the employer’s duty to enforce child labor regulations. Where such directives are followed by further violations, sterner measures controlling the actions of subordinates are required. In some states, it is unlawful to employ children under a specified age in certain activities without an employment certificate issued and filed in accordance with the law. An employer’s failure to comply w ith this requirement makes the employment illegal. Technical errors, such as the lack of a detailed account of the child’s duties in the employer’s pledge of employment, will not have this effect or invalidate the certificate. Regulations also relate to occupations that are or may be potentially dangerous, extremely hazardous, or harmful to a child’s health or morals, as defined by statute or judicial decision. In one state a log-loading machine was held to be within the meaning of a law that barred the employment of minors in businesses using dangerous machinery. The violation of child labor regulations can subject the PERPETRATOR to criminal prosecution or render the employment contract illegal. In appropriate circumstances an INJUNCTION,a court order that commands or prohibits a certain act, may be issued against a violator to stop the illegal conduct. In 1919 Congress passed the so-called Child Labor Tax Law (40 Stat. 1057), which imposed a 10 percent excise tax on persons or establish- ments that employed children under the age of 14 or children between the ages of 14 and 16 working more than eight hours daily or more than six days per week. However, in Bailey v. Drexel Furniture Co. (259 U.S. 20, 42 S. Ct. 449, 66 L. Ed. 2d 817 [1922]), the U.S. Supreme Court invalidated the law as unconstitutional, agreeing with a lower court that “the provisions of the so-called taxing act must be naturally and reasonably adapted to the collection of the tax and not solely to the achievement of some other purpose plainly within state power.” Liability for child labor law violations depends upon the provisions of the law. As a general rule, the owner of the business is liable, whether it is a natural person, a corporation, or a joint association. An employer is usually not liable if a minor is assigned to work on the premises in violation of law by an INDEPENDENT CONTRACTOR , a person whose work methods are not controlled by the employer. Some states, however, will impose liability on the owner under such circumstances. The employer’s knowledge that the child is within the prohibited age is no t an element of the offense. The offense is committed if the employer does not know but should have known by the exercise of reasonable diligence that the child was underage. The employer’s good faith—his honest belief—is no defense even though the child misrepresented his age. A person who hires a child in violation of law will be liable if the child is injured. The duration of the employment and the status of the child as an employee are irrelevant. The parents will not be held liable merely because they assented to the hiring of their child by another. Only the injured child will recover damages, reparations for injury caused by another, for third persons are not within the class of persons that the laws were enacted to protect. During the 1990s a new issue of child labor moved into the forefront: imported foreign goods that were produced by foreign sweatshops employing child labor legally, though repugnant in the United States. As more domestic or multinational corporations opened facilities in foreign countries—where labor costs were cheaper—the problem worsened. The FLSA prohibits sweatshops. The U.S. DEPARTMENT O F LABOR considers a workplace to be a sweatshop if Two young boys at work in a textile mill. Before child labor laws went into effect, many companies employed young people at low wages, often exposing them to overwork, as well as hazardous and unsanitary conditions. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHILD LABOR LAWS 369 it violates two or more of the most basic labor laws, for example, child labor, fire safety, minimum wage, or overtime hours. President BILL CLINTON signed EXECUTIVE ORDER 13,126, “Prohibition of Acquisition of Products Pro- duced by Forced or Indentured Child Labor,” on June 12, 1999. Senator Tom Hark in (D-IA) has been at the forefront of legislative initiatives, introducing the Child Labor Deterrence Act every two years during the 1990s. However, the act, which would prohibit the importation of manufactured or mined goods that are pro- duced by foreign children under the age of 15, was never enacted. FURTHER READINGS Executive Order No. 13,126. 1999. Federal Register 64:115:32383 (June 16). Given, Olivia. 1999. “An Indictment of Sweatshops.” Child Labor and Sweatshops. San Diego: Greenhaven. Harkin, Tom. 1999. “The United States Should Ban Imports of Products Made by Children.” Child Labor and Sweatshops. San Diego: Greenhaven. Labor Department. Report on the Youth Labor Force. Bureau of Labor Statistics (BLS) Publication, 2000. CROSS REFERENCES Labor Law; Parent and Child CHILD MOLESTATION Child molestation is a crime involving a range of indecent or sexual activities between an adult and a child, usually under the age of 14. The psychiatric condition that causes an adult to perform such acts is pedophilia. It is important, however, to keep in mind that child molestation and child sexual abuse refer to specific, legally defined actions. They do not necessarily imply that the perpetrator bears a particular psychological makeup or motive. For example, not all incidents of child molestation are perpetrated by pedophiles; sometimes the perpetrator has other motives these actions and does not manifest an ongoing pattern of sexual attraction to children. Thus, not all child molestation is perpetrated by pedophiles, and not all pedophiles actually commit child molestation. Regardless of the terminology, it is illegal for an adult to touch any portion of a child’s body with a “lewd and lasciv i ous ” intent. Usually, consent is not a matter of consideration and is not available as a defense to a charge of child molestation. Even in cases in which it can be proven that the minor victim was a willing participant, a sex act or improper touching is still a crime because children cannot legally consent to anything. Criminal penalties are severe for those convicted of child molestation. According to the JUSTICE DEPARTMENT, there are approximately four million pedophiles in the United States. It is difficult, however, to accurately assess the number of child molesters because many child molesters are not caught. The Justice Department reports the alarming statistic that one in four girls and one in seven boys will experience SEXUAL ABUSE before the age of 18. There is no single profile that accurately describes or accounts for all child molesters. Many variables exist among individuals in terms of their personal characteristic s, life experiences, criminal histories, and reasons for committing such offenses. One common misconception is that molested children grow up to become child molesters themselves. In fact, most childhood sexual abuse victims do not become perpetra- tors. In some instances, if children are sexually victimized and are abused in other ways as well, they may later molest a child. Likewise, a sexually abused child who also exhibits antiso- cial behavior may go on to commit acts of child molestation, although having inadequate social and interpersonal skills does not inevitably result in individuals abusing children sexually. Few criminal offenses are more despised than the sexual abuse of children, and few are so little understood in terms of the number of offenses committed, the proportion of the population who commit offenses, and the risks of re-offense. One reason is that sex crimes committed against children and teenagers are believed to be widely underreported. This assumption is supported by the reports of both sex offenders and sexually abused children. Offenders commonly report fewer incidents of child molestation than those for which they are ultimately convicted. And children are often loathe to report an incident because they are ashamed or they fear reprisal. Most convicted sex offenders are eventually released, giving rise to concerns over RECIDIVISM. Recidivism rates are affected by a number of factors, including differences in legal guidelines and statutes in the states; opportunities to re- offend; characteristics of the offender; treatment availabilities; and post-treatment super vision. Child molesters have been known to re-offend as late as 20 years following release into the community. Problems caus ed by recidivist offenders have given rise to several legislative GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 CHILD MOLESTATION initiatives to help manage societal risk. For example, various sex offender registration schemes are known as Megan’s Laws, which list names, addresses, and other specifics about convicted sex offenders. Such registries are available f or public access. The laws take their name from Megan Kanka who was abducted, molested, and murdered by a convicted child molester who lived near her home in New Jersey. A more active scheme that gained increased attention in the wake of several national news stories of abducted and molested children is known as AMBER ALERT Laws. These laws were prompted by citizen concerns following the 1996 KIDNAPPING and MURDER of nine-year-old Amber Hagerman in Arlin gton, Texas. The AMBER ALERT involves law enforcement and broadcast media response to reports of a missing child, when it appears that the child has been abducted by a sexual predator. Although the scope of the Amber Alert varies from jurisdiction to jurisdiction, the criteria to trigger it are generally consistent: the missing child falls within a certain age range; the law enforcement agency believes the child has been abducted; the agency believes the missing child is under threat of serious bodily harm or death. In all cases, law enforcement activates an Amber Alert by notifying broadcast media with relevant information about the child’s identity, the description of the suspected PERPETRATOR, and the circumstances of the abduction. Once an Amber Alert has been issued by law enforcement, radio and television stations interrupt their programming to notify the public that a child has been kidnapped and to provide relevant information about the case. Because approximately 95 percent of all people driving in their cars are tuned in to a radio station, the Amber Alert is an extremely effective way of disseminating descriptions of the child, the kidnapper, accomplices, and vehicles. The goal of the Amber Alert is to notify an entire community. It adds extra eyes and ears to watch, listen, and help in the safe return of the child and apprehension of the suspect. The federal government also worked on legislation that would establish a national Amber Alert system. Legislation was introduced in the House and the Senate, and President GEORGE W. BUSH signed a national Amber Alert bill on April 30, 2003, known as the Prosecuto- rial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (Protect Act), Pub. L. No. 108-21, 117 Stat. 650. For several years numerous charges of child molestation and other allegations of sexual abuse or improprieties were levied against certain Roman Catholic priests. These cases had been in various stages for some time, but since the late 1990s the scope of the problem became more widely known. During the early 2000s, it was common to regularly hear a report of a priest resigning or being defrocked or censured by his bishop. These scandals origi- nated in the United States but spread to many other countries around the world. In March 2002, a Polish archbishop, a friend and former personal assistant to the pope, resigned in the wake of sexual abuse charges. In Australia, 51 priests were convicted of child molestation between 1992 and 2003. In England, 21 priests were convicted of sexual molestation between 1995 and 2002. In Ireland, taxpayers contributed about one-fifth of $500 million to pay claims against the Church relating to cases of abuse of over three thousand victims spanning 30 years. There have been hundreds of resignations, firings, or monetary settlements in many countries, particularly Australia, Canada, England, France, Germany, Ireland, Mexico, Poland, and the United States. One of the most notorious cases that made national and international news involved a priest from New England. In 2002 the Boston Globe pu blished a series of investigative reports An Amber Alert, a law enforcement and broadcast media response to a report of a missing child, is displayed over Interstate 80 near Omaha, Nebraska, in December 2002. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHILD MOLESTATION 371 revealing that since 1997 the Boston Archdio- cese had secretly settled 50 lawsuits against John J. Geoghan, who, over his 30-year-career as a Catholic priest in six parishes, had been repeatedly accused of molesting approximately 130 children. Although Geoghan later resigned and was convicted for child molestation, the evidence demonstrated that, in addition to secretly paying Geoghan’s victims approximate- ly $10 million to keep them quiet, the archdio- cese had transferred Geoghan and dozens of other priests from parish to parish after allegations of child molestation began to surface, rather than removing the accu sed from their positions, conducting investigations, and reporting them to the authorities. The Geoghan scandal opened the floodgates nationwide. Over the next twelve months, some 1,200 priests were accused of child molestation in more than 30 states. Most of these cases were settled out of court. The biggest settlements included the Archdiocese of Los Angeles, which paid approximately $660 million to more than 500 victims; the Diocese of Orange in Califor- nia, which paid approximately $90 million to approximately 90 victims; the Diocese of Covington, Kentucky, which paid $84 million to more than 350 victims; and the Archdiocese of Boston, which paid $85 million to more than 500 victims. The U.S. Conference of Catholic Bishops, in a report on the nature and scope of the abuse problems in the United States, found almost 11,000 cases of abuse by about 4,000 priests and deacons since 1950. Bishop Wilton Gregory, president of the U.S. Conference of Catholic Bishops, stated: “The heartfelt sorrow that we feel for this violation and the often ineffective ways with which it was dealt has strengthened our commitment to do everything possible to see that it does not happen again.” Pope John Paul II responded to the scandal by issuing a statement, proclaiming that “there is no place in the priesthood and religious life for those who would harm the young.” The Church then instituted reforms to prevent future abuse by requiring background checks for Church employees. Dioceses faced with CHILD ABUSE allegations are now required to alert the authorities, conduct an investigation, and immediately remove the accused from duty. Whereas these revelations focused media attention on the issue of priests molesting children, the breadth of child sexual abuse reaches beyond the Catholic Church. The general public is just beginning to understand its many dimensions and the legal line is being more firmly drawn to protect the rights of children. FURTHER READINGS “Amber Plan.” National Center for Missing and Exploited Children. Available online at www.missingkids.com (accessed May 7, 2003). McCarter, W. Dudley. 2009. “A Parent Convicted of Child Molestation Has No Vested Right to Unsupervised Visitation.” Journal of the Missouri Bar. 65 (May-June). Szasz, Thomas. 2002. “Sins of the Fathers: Is Child Molestation a Sickness or a Crime?” Available online at www.reason.com (accessed May 7, 2003). CROSS REFERENCES Child Abuse; Child Pornography; Sex Offenses. CHILD PORNOGRAPHY Child pornography is the visual representation of minors under the age of 18 engaged in sexual activity or the visual representation of minors engaging in lewd or erotic behavior designed to arouse the viewer’s sexual interest. Child pornography may include actual or simulated sexual intercourse involving minors, deviant sexual acts, BESTIALITY, masturbation, sado-masochistic abuse, or the exhibition of genitals in a sexually arousing fashion. In most instances, however, the mere visual depiction of a nude or partially nude minor does not rise to the level of child PORNOGRAPHY. Thus, home movies, family pictures, and educatio nal books depicting nude children in a realistic, non-erotic setting are protected by the Free Speech Clause of the FIRST AMENDMENT to the U.S. Constitution and do not constitute child pornography. Child pornography differs from pornogra- phy depicting adults in that adult pornography may only be regulated if it is OBSCENE.InMiller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the U.S. Supreme Court ruled that pornography depicting adults is obscene if: (1) the work, taken as a whole by an average person applying contemporary community standards, appeals to the prurient interest; (2) the work depicts sexual conduct in a patently offensive way; and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value. As a result, child pornography can be banned without regard to whether the pornographic depictions of minors violate contemporary community GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 372 CHILD PORNOGRAPHY standards or otherwise satisfy the Miller stan- dard for OBSCENITY. In 1984 the Court was asked to revi ew the constitutionality of a New York law that made it illegal to produce, distribute, sell, or otherwise promote material depicting a minor engaged in sex acts. The DEFENDANT, a bookstore proprietor, was convicted under the law, even though the materials he was convicted for selling were not obscene under the Miller standard. In uphold- ing the law and recognizing a new category of speech not protected by the First Amendment, the Supreme Court held that Miller did not apply in prosecutions for child pornography. Instead, the Court said, governments have a compelling interest in protecting minors from exploitation and thus may ban pornography that depicts minors engaging in sexual acts or sexual performance without violating the First Amendment. New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). “Use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child,” the Court emphasized. The Court also said it was mindful of the challenges law enforcement had faced in its efforts to shut down the distribution network for child pornography. In 1992, the Court extended the Ferber rationale in upholding a statute that criminalized the mere possession of child pornography. Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L.Ed.2d 98 (1990). The Court reasoned that the state law was rationally related to the legitimate aim of destroying the child porn ography market. As computers became increasingly used during the 1990s and the INTERNET made distribution of images easier, faster, and cheaper, Congress passed the Communications Decency Act (CDA), which punished dissemi- nating “indecent” material over the Internet. The Supreme Court struck down the law in Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). Although the Court recognized the “legitimacy and impor tance of the congressional goal of protecting children from harmful materials,” it ruled that the CDA abridged FREEDOM OF SPEECH and, therefore, was unconstitutional. The Court also noted that its previous decisions limiting free speech out of concern for the protection of children were inapplicable in this case and that the CDA differed from the laws upheld in previous cases in significant ways. For example, the CDA did not allow parents to consent to their children’s use of restricted materials; it was not limited to commercial transactions; it failed to provide a definition of “indecent”; and its broad prohibi- tions were not limited to particular times of the day. Finally, the act’s restrictions could not be analyzed as a form of time, place, and manner regulation because it was a content-based blanket restriction on speech. Congress wasted little time in responding to this decision. In 1998 it passed the Child Online Protection Act (COPA), which made it illegal to use the Internet to communicate “for c ommercial purposes” any material considered to be “harmful to minors.” The law also incorporated the three- part obscenity test that the Supreme Court formulated in Miller v. California.The AMERICAN CIVIL LIBERTIES UNION (ACLU) and a group of online Website operators challenged the constitutionali- ty of COPA, arguing that it was overbroad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA, which meant that the most conservative community in the country could dictate content on the Internet. A federal appeals court in Philadelphia agreed with these arguments, and the government appealed again to the Supreme Court. The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2 d 771 (2002), produced a decision t hat failed to give a clear direction. The use of community standards did not by itself make the statute overbroad and unconstitutional under the First Amendment. Apart from that conclusion, the Court could not agree, with five of the justices producing separa te opinions . A majority, however, had reservations about the COPA. A number of the justice s expressed concern that without a national standard it would be difficult f or operators o f I nt ernet services to know when they had crossed a line and had subjected themselves to liability. The case was remanded to the lower courts for a full examina- tion of the law on all i ssues. The fate of COPA is likely to be decided by the Court in a future decision. At least one federal circuit has perma- nently blocked prosecutors from using COPA in any federal proceeding. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008). In the same term that the Court rendered its divided opinion in Ashcroft v. American Civil Liberties Union, the justices managed to reach GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD PORNOGRAPHY 373 agreement in another case dealing with child pornography. In 1996 Congress passed the Child Pornography Prevention Act (CPPA), 18 U.S.C.A. §§ 2252A, 2256(8)(B), (D), which defined child pornography to include visual depictions of anyone who “appears to be a minor engaging in sexually explicit conduct.” CPPA also defined child pornography to include any sexually explicit image that is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that they depict minors engaging in sexually explicit conduct. The goal of the act was to prohibit the creation of computer- generated images that did not depict actual minors but that were virtually indistinguishable from images that did depict actual minors. The Court stru ck down both sections as overbroad. While the Court said that state and federal governments continue to have a com- pelling interest in protecting real children from exploitation, the law in question was worded in such a way as to allow the government to PROSECUTE authors and playwrights for works that contain purely fictional characters. Both art and literature have depicted minors coming of age “through out the ages,” the Cour t said and thus Congress must confine itself to regulating the pornographic depictio n of actual minors or run afoul of the First Amendment. Ashcroft v. Free Speech Coalition,535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002). In 2008 the Court clarified its holding in Ashcroft v. Free Speech Coalition. At issue was the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PRO- TECT) Act, 18 U.S.C.A. § 2252A(a)(3)(B), which Congress passed in 2003. Under the law, it is illegal for anyone to make an offer to provide child pornography or make a request to obtain child pornography. The Court said that the act was constitutional as applied to a defendant charged with soliciting child pornog- raphy over the Internet, even if the defendant was soliciting it from an undercover agent who really did not possess any pornography. The act also applied, the Court said, to someone who advertises virtual child pornography over the Internet, even if that pornography is advertised as containing virtual images of real children. United States v. Williams, —U.S.—, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). Unlike in Ashcroft v. Free Speech Coalition, prose cution of defendants under either of these circumstances would not have a chilling impact on authors and playwrights creating legitimate works depicting minors coming of age, the Court said. FURTHER READINGS Clark, Matthew C., ed. 2002. Obscenity, Child Pornography, and Indecency. New York: Novinka Books. Marin, Giannina. 2008. “Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving for You.” Florida Law Review. December. Tate, Tim. 1990. Child Pornography: An Investigation. London: Methuen. U.S. Senate, Committee on the Judiciary. 2003. Stopping Child Pornography: Protecting Our Children and the Constitution: Hearing Before … 107th Congress, 2nd Session, October 2, 2002. Washington, D.C.: U.S. Government Printing Office. CROSS REFERENCES Child Abuse; Child Molestation; Computer Crime; First Amendment; Freedom of Speech; Obscenity; Pedophilia. CHILD SUPPORT A payment that a noncustodial parent makes as a contribution to the costs of raising her or his child. In the mid-1990s, as never before, CHILD SUPPORT became a topic of urgent U.S. national discussion. The system that awards and enforces child support was declared inadequ ate by state and federal policy makers. Failures in the system were blamed for child poverty rates, long-term dependence on government assistance, and the “feminization of pov erty.” Courts drew criti- cism for awarding child support inconsistently and inequitably. These social and economic issues attracted both federal attention and reform efforts. The need for child support payments usually arises when one parent does not have physical custody of his or her child, so that parent’s income does not benefit the child on a daily basis. At times, neither parent has custody, and both may pay a third person who is caring for the child. When both of a child’s parents have full custody (as when they are married to each other), and usually when they are divorced and share joint physical custody, the needs of the child are presumed met and child support is not an issue. As long as parents provide a safe level of care, the government does not control their contributions to their children. In the United States in the early 2000s, nearly half of all marriages ended in DIVORCE, and almost one-quarter of all children were GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 374 CHILD SUPPORT born to unmarried parents. Most of the children who lived in single-parent families had a LEGAL RIGHT to a child support order. Child support can be voluntary or court ordered and can be secured through a divorce decree or a separate action. Increasingly, support orders are issued by state agencies. The legal duty to support a minor child belongs to both parents, even if the custodial parent is capable of caring for the child single- handedly. Support is awarded to provide for the child’s basic needs and to allow the child to share in the standard of living of both parents. Although both mothers and fathers can be ordered to pay support, a 1994 study in Utah found that over a 20-year period, mothers were required to pay child support in fewer than one in five cases in which fathers received sole custody. A greater proportion of noncustodial fathers were ordered to pay support. A petition for support is usually begun in a state court where the PLAINTIFF (the parent seeking the order) resides. The Uniform Inter- state Family Support Act of 1992, which was updated in 1996 and 2001 and which has been adopted in some form in the majority of states, provides that jurisdiction exists where the child or one of the parents resides. Before support can be awarded, parentage (called PATERNITY in the case of fathers, maternity in the case of mothers) must be demonstrated. The would- be payer is entitled to blood tests, but in some states must pay for them. The 1993 FEDERAL BUDGET bill (OMNIBUS Budget Reconciliation Act of 1993, 42 U.S.C.A. § 666(a)(2)) required states to offer speedy means of establishing parentage, since parentage disputes can delay a valid child support award. Determining Awards Child support awards are made by each state’s family court system. Most states require that they be based on the best interests of the child. In addition to determining support in conten- tious divorce cases, courts review stipulations (agreements) between parents and can OVERRULE an agreement that does not adequately provide for children. Often, courts feel pressure to balance children’s needs with their parents’ needs. Awards are based on the noncustodial parent’s ability to pay and must allow the parent to remain self-supporting. Many associations of noncustodial parents emerged after the 1980s to express their belief that awards were burden- some to the payers, benefited only the custodial parent, or did not provide payers with enough in return. At the same time, more single parents with children slipped into poverty than had at any other point in the nation’s history. In the mid-1990s no federal child support guideline existed, mainly because child support was historically a state-controlled issue. Most states had established their own guidelines in the quest for fair standards. About 15 states used the “percentage -of-income” guideline, which is based on the income of the noncus- todial parent. Thirty states used the “income- shares” method, which is based on the income of both parents. It prorates the total support between the parents and calculates each contribution proportionally according to in- come. Several states used the elaborate Melson formula, which p rovides a basic subsistence level for each parent before determining the primary support needs of the children. This formula then awards a percentage of the remaining in come so that the childr en share in the standard of living of each parent. Even when guidelines are used, judges consider the facts of a case and other statutes. They can depart from the guidelines for considerations such as how property is divided, whether an arrearage (unpaid child support) exists, and what disparities in parents’ incomes exist. In many states, judges must prove in writing that an exception to the guidelines serves the child’s best interest. In practice, courts are allowed to use many criteria in setting an award amount. Some judges consider the needs of subsequent chil- dren when obligors (payers) remarry and start new families. Some may adhere to the Uniform Parentage Act, which states that courts must take into consideration, among other things, the age of the child, the financial resources and earning ability of the child, and the value of services contributed by the custodial parent. Investment income, unearned income, overtime, bonuses, income from a second job, gifts, and retirement pay may all be eligible income when calculating child support due, regardless of its tax status. PUTATIVE income (earning capacity) is used to calculate support in many states if it is suspected that the noncusto- dial parent is deliberately underemployed or unemployed. The court is allowed to credit GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CHILD SUPPORT 375 SOCIAL SECURITY benefits toward support, but this action is not automatic. Child support is not deductible from either parent’s taxes, any more than are the provisions that married parents supply to their children. The children them- selves qualify as household deductions, but only one parent may claim them. Unless a state mandates that child support be awarded, the court can deny it. Courts have denied support in situations of split custody, in which each parent has custody of one or more children. With exceptions, the court usually does not award child support to a noncustodial parent during visitation. Support can be or- dered for legally adopted children. It cannot be ordered for grandchildren who have not been legally adopted. Consequences for Nonpayment The consequences of not paying child support are inconsistently applied—a situation many states want to remedy. A delinquent OBLIGOR may face contempt-of-court charges and civil penalties. Criminal sanctions can include a jail sentence or a fine, but these punishments are used sparingly and for repeat violations. Prosecution may proceed on a MISDEMEANOR or FELONY level, depending on the circumstances. In addition, federal prosecution may occur for a parent who crosses a state line to avoid paying support. Enforcement In 1992 $27 billion in child support went uncollected. The U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES has estimated that a substantial increase in child support collections could reduce the payments of Aid to Families with Dependent Children (AFDC) by 25 percent. The federal government created the AFDC program in 1935 to enable states to provide money and services to help poor children remain in their own, single- parent homes. These observations were not lost on the 1994 Senate, which directed the JUSTICE DEPART- MENT to “immediately address shortcomings in enforcement of the law [regarding child support].” Enforcement efforts are administered federally through the department’s Office of Child Support Enforcement, but child support recovery units at the state level perform the daily task of securing payment. The problems surrounding the collection of child support have provoked frustration and State Child Support Enforcement Offices Alabama Iowa Department of Human Resources Bureau of Collections Child Support Enforcement Division Department of Human Services (334) 242-9300 (515) 281-5647 Alaska Kansas Child Support Services Division Child Support Enforcement Program (907) 269-6900 Department of Social & Rehabilitation Services Arizona (785) 296-3237 Division of Child Support Enforcement (602) 771-8190 Kentucky Child Support Enforcement Program Arkansas Cabinet for Families and Children Office of Child Support Enforcement (502) 564-2285 (501) 682-6169 Louisiana California Office of Family Support Department of Child Support Services Support Enforcement Services Division (225) 342-4780(866) 249-0773 Maine Colorado Department of Health and Human Services Division of Child Support Enforcement (303) 866-4300 Division of Support Enforcement & Recovery Office of Integrated Access and Support Connecticut (207) 624-4100 Department of Social Services Bureau of Child Support Enforcement Maryland (860) 424-4989 Child Support Enforcement Administration Department of Human Resources Delaware (410) 767-7065 Division of Child Support Enforcement Delaware Health and Social Services Massachusetts (302) 395-6500 Child Support Enforcement Division Department of Revenue District of Columbia 1-800-332-2733 Child Support Services Division Office of the Attorney General Michigan (202) 724-2131 Office of Child Support Department of Human Services Florida (517) 241-7460 Child Suppport Enforcement Program Department of Revenue Minnesota (850) 922-9590 Office of Child Support Enforcement Department of Human Services Georgia (651) 431-4400 Child Support Services (404) 657-3851 Mississippi Division of Child Support Enforcement Hawaii Department of Human Services Child Support Enforcement Agency (601) 359-4861 Department of the Attorney General (808) 692-7000 Missouri Family Support Division Idaho Department of Social Services Bureau of Child Support Services (573) 751-3221 Department of Health and Welfare 1-800-356-9868 Montana Child Support Enforcement Division Illinois Department of Public Health and Division of Child Support Enforcement Human Services Illinois Department of Public Aid (406) 444-9855 1-800-447-4278 Nebraska Indiana Department of Health and Human Services Child Suppport Bureau (317) 233-5437 (402) 471-1400 [continued] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 376 CHILD SUPPORT ingenuity in states throughout the nation. A major barrier to timely and regular collection is the large volume of child support orders that states are required to enforce monthly. One response has been to divert cases from the court system by empowering state agencies to enforce child support orders. A primary means of collecting is wage withholding. Th is action requires that the employer of the obligor send a percentage of the obligor’s paychecks to the state or county, which forwards it to the custodial parent. Where the custodial parent receives federal public assistance, income withholding is man- datory. GARNISHMENT is similar to withholding, but it is used whe n the obligor is about to receive a lump-sum payment. Interception of the obligor’s federal TAX RETURN is another enforcement tool. In the first seven years after implementing a pilot of this requirement, $1.8 billion was collected. As of the early 2000s federal law requires every state to have legislation for intercepting the tax returns of delinquent obligors and applying them to child support after a review. Self-employed obligors, or those whose employment is unknown, pose a challenge to collection agencies. In their case, states may rely on the custodial parent’s knowledge of the obligor’s income and on tax returns to pursue enforcement. If a parent who owes child support dies, the child support payments may be made from the deceased parent’s estate, at least according to one court. In L. W. K. v. E. R. C., 735 N.E.2d 359 (Mass. 2000), in the Supreme Judicial Court of Massachusetts a father was required by a court to pay $100 per month in child support for his minor daughter until the daughter turned 18. The father subsequently disinherited the daugh- ter in his will. He died five months after he executed the will. The court ruled that the child was entitled to receive child support payments from the father’s estate until she turned 18. Other enforcement methods include placing a LIEN on the obligor’s property so that it cannot be sold without clearing the arrearage. At times, interest is added to unpaid child support in order to motivate the obligor to pay off this debt; in 1995 the default rate was nearly 50 percent on child support, compared with only 3 percent on car loans. Some states have taken the high- profile approach of publicly issuing controversial “Wanted” posters depicting delinquent obligors. Others have revoked state-issued fishing, hunting, and even driver’s licenses as punishment for nonpayment. State Child Support Enforcement Offices Nevada Rhode Island State of Nevada Office of Child Support Services Division of Welfare and Supportive Services Department of Human Services 1-800-992-0900 (401) 458-4400 New Hampshire Division of Child Support Services South Carolina Health and Human Services Child Support Enforcement Division Department of Social Services 1-800-852-3345 1-800-768-5858 New Jersey South Dakota Office of Child Support Division of Child Support Department of Human Sevices Department of Social Services (605) 773-3641 (609) 588-2915 Tennessee Child Support Services New Mexico Department of Human Services Child Support Enforcement Division (615) 313-4880 Department of Human Services (505) 476-7207 Texas Child Support Division New York Office of the Attorney General Division of Child Support Enforcement Office of Temporary Assistance and Disability 1-800-252-8014 (518) 474-9081 Utah North Carolina Child Support Services Office of Recovery Services Department of Human Services (801) 536-8901 Child Support Enforcement Office Vermont Department of Human Resources (919) 255-3800 Office of Child Support (802) 786-3214 North Dakota Child Support Enforcement Agency Virginia Department of Human Services Division of Child Support Enforcement (701) 328-3582 1-800-257-9986 Ohio Office of Child Support Enforcement Washington Division of Child Support Department of Human Services Economic Services Administration (614) 752-6561 (360) 664-5000 Oklahoma West Virginia Child Support Services Bureau for Child Support Enforcement Department of Human Services Department of Health & Human Resources (405) 522-2874 1-800-249-3778 Oregon Wisconsin Division of Child Support Bureau of Child Support Department of Justice Division of Economic Support (608) 266-9909 (503) 986-6166 Wyoming Pennsylvania Child Support Enforcement Bureau of Child Support Enforcement Department of Family Services Department of Public Welfare (307) 777-6948 1-800-932-0211 SOURCE: U.S. Department of Health & Human Services, Administration of Children & Families, Office of Child Su pp ort Enforcement. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CHILD SUPPORT 377 . Children Office of Child Support Enforcement (5 02) 564 -22 85 (501) 6 82- 6169 Louisiana California Office of Family Support Department of Child Support Services Support Enforcement Services Division (22 5). Division Office of the Attorney General Michigan (20 2) 724 -21 31 Office of Child Support Department of Human Services Florida (517) 24 1-7460 Child Suppport Enforcement Program Department of Revenue Minnesota (850). Enforcement Department of Human Services Department of Health & Human Resources (405) 522 -28 74 1-800 -24 9-3778 Oregon Wisconsin Division of Child Support Bureau of Child Support Department of Justice Division of