Thursday, June 14, 2012

Paternity Suits: The Brass Tax

When we left off yesterday, a professional athlete was faced with a claim that he had fathered a baby with a woman not his wife (for our purposes, it is not important whether he is actually married or not—the point is that they aren’t living in the same household).  We considered the strategies he might have to choose and discussed some of the background social issues involved.  Today, we get down to brass tax:  just how the courts determine what is a “fair” child support award for Superstar Junior.

A 1981 flick--not exactly on point, but
there's not a lot to choose from for this topic!
“OK, the Kid's Mine.  Now What?”

Once paternity has been established, the next issue to, er, tackle is how much a court should award in child support.* As you can imagine, the high salaries of professional athletes can make "child support" synonymous with "windfall." On the one hand, it seems fair to hold a famous father financially responsible for the upbringing of a child he helped create the same as we would an average Joe.   

On the other hand, we don’t want to encourage the reckless promiscuity (or as we discussed yesterday, intentional seductions) by handing the woman a winning lottery ticket.  None of this matters, though.  It is important to understand that, in deciding family law cases, judges must put all the social complexities aside and base decisions on what is “in the best interest of the child."

Generally speaking, courts use three methods for determining child support levels.  The method that is ultimately used is determined by the law of that state:

     1.     Income Shares Method:  After determining the total income of both parents, the court estimates what percentage of that total income would be spent on the expenses for that child (plus any actual additional expenses unique to the situation).  Each parent's financial obligation is determined by the ratio of his or her income level to the combined income.

     2.     Melson Formula:  The court determines a "subsistence income"--one that meets the basic needs of both parents and all minor children of the parents.  The total income remaining is used to determine the amount of support.

     3.     Percentage of Income:  This is the simplest method, especially because the state's law dictates the percentage of the parent's income that goes to one child.  In Wisconsin, for example, a parent pays 17% of his or her income for the support of one child.  Under this model, the court also has the discretion to modify the award to the extent that imposing the statutory percentage would yield an unfair result.

The third method isn't just the easiest to administer, it is also the preferred method for professional athletes, since their income is almost guaranteed to be substantially higher than the mother's.  The problem with the first two approaches—other than their complexity—is that it is not always easy to determine which expenses are appropriate for determining the amount of support.  For example, should the court base expenses on the need of the average American (or citizen of that state), or should it be based on the expenses of children in wealthy households (e.g., a $10,000 mortgage payment vs. $1,200 rent payment, live-in nanny, horseback riding lessons, summer-long language-immersion trip to France)?

“How Can I Make Sure My—I Mean the Kid’s—Money Will Be Well Spent?”

Still, even with an eminently sympathetic judge, no matter what formula is used, the pro will still be the primary (if not only) source of support for the child, and yet will have little or no say in how the money is spent.  To allay concerns that the money will not be spent for the welfare of the child, courts have another tool at their disposal: the creation of a trust.  In such cases, a third party--perhaps a grandparent or attorney--is in charge of making sure the money is spent appropriately.  Even if the mother is in charge of the funds, though, she is obligated by law to spend the money in a responsible way.

Admit it--you'd give anything to be a trust fund baby!

There's another good reason to establish a trust beyond the concern for how the money is spent.  Although a player might have a very lucrative career with a high income at the time support is determined, he runs the risk of having his career shortened by injury, age, or a decline in skill.  If he makes money from endorsement contracts as well, his income could experience changes because of a dispute with the company in question, or even a downturn in the economy.

“Pay No Attention to Junior, Coach…I’m Ready to Play!”

Anyone who has kids can tell you that starting a family--no matter what form that family takes--changes your life.  For athletes in these touchy situations, though, the impact goes beyond dollars and cents.  Remember Antonio Cromartie?  The Jets had to give him a $500,000 salary advance so he could catch up on his back child support.  Not the ideal way to start a relationship with an employer. 

"Three hundred thousand?  No, man, I said five hundred thou.  Make it happen!"

When New England running back Dave Meggett failed to respond to a paternity claim that had been filed in Florida, he faced the threat of arrest if he traveled with the team to play the Jacksonville Jaguars.  The Patriots front office had to get involved--creating a major distraction for the team.  All the fuss seems a bit silly now that Meggett is serving a 30-year prison term for burglary and sexual misconduct.

One of the more notorious cases from the NBA was that of Shawn Kemp (left), who had fathered seven children by the age of 28.  According to the 1998 SI article,** a source in the (then) Seattle SuperSonics organization said that the distraction of so many support obligations, coupled with frustration of not be able to see some of his children, were the primary causes of Kemp’s meltdown during the 1997 season.  In the first half of the season, Kemp averaged 21.3 points per game and 11 rebounds; after the All-Star break, his averages dropped to 15.1 points and 8.5 rebounds.  He ultimately demanded a trade, and the same source said that his mounting support obligations were part of his motive for making the demand.

Of course, no matter the circumstances, and no matter the cost or distractions involved, both sides should remember that they have brought a child into the world.  With each new child comes new opportunity to make the world a better place, and we do that by giving that child the best chance for happiness, success and self-respect.  Not every family starts in the “traditional” way, but what matters is that every child knows he has a family that loves him.  And that’s not something a court of law can create—all of us, sports star or not, have to make that happen.

Well, I hope you've enjoyed this look at one of the more personal, yet public, topics in football.  To all fathers out there—traditional or nontraditional, expected or unexpected—have a wonderful Father’s Day!


*The primary legal source for my original law school paper (and now this post) was an article written by two player attorneys in Dallas, Texas:  R. Scott Downing and Katherine A. Kinser, “Family Law Issues That Impact the Professional Athlete,” published in the Journal of the American Academy of Matrimonial Law (15 J. Am. Acad. Matrimonial Law, 337 (1998)).

**Click here for a link to that article.

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