The impact of the Supreme Court’s decision is already being felt in this area. In July 2022, a group of Republican lawmakers introduced the Unborn Child Support Act in both the House and Senate.
According to one study, single women who carry babies to term are more at risk for eviction, bankruptcy, and other kinds of financial distress. Sen. Kevin Cramer (R-ND) says his proposed amendment to the Social Security Act addresses this issue by giving “mothers the ability to receive child support payments while they are pregnant.” He added, “Fathers have obligations, financial and otherwise, during pregnancy.”
Under this proposal, courts could award child support payments prior to birth or apply them retroactively to the point of conception, as determined by a doctor. It also would not require women to ask for child support if they do not want the prospective father’s involvement. Paternity tests would be up to the prospective mother.
Some pundits questioned the GOP’s motivation. “I don’t think they really care about people getting support when they’re pregnant,” said Mississippi Reproductive Freedom Fund co-founder Laurie Bertram Roberts. “I think their real goal is to get personhood language into a bill.”
The Unborn Child Support Act would not break any new ground in terms of child support. It would only extend the child support obligation in Illinois and all other states. All divorce and paternity orders usually include a statement that both parents share responsibility for supporting the children financially. The child support order simply fills in the specifics.
Before we get to these specifics, we should discuss child support philosophy. Once upon a time, Illinois was a percentage-of-income state. Noncustodial parents paid a certain percentage of their income. The amount usually depended on the number of children before the court and maybe a few other factors.
Today, like most other jurisdictions, Illinois is an income-share state. Child support is designed to give the children the same standard of living they would have enjoyed if their parents were married. The three major factors in this calculation are the combined net income of the parents, the division of overnight visits, and the number of children before the court.
There is often a difference between net income on a paystub and net income for child support purposes. Certain deductions, such as voluntary over-withholding, retirement account contributions, and student loan garnishment, do not count.
Furthermore, if a judge determines that the guideline amount is inappropriate or unjust, the judge may set a different amount. Some factors to consider include:
That last bullet point is usually the big one, mostly because, for the most part, the guidelines already incorporate the first three.
Assume a child is disabled and requires constant professional care. The guideline amount does not account for this enormous expense. So, in this case, the guidelines would be inapplicable and the child support obligation should include the shared cost of such care.
At first, this idea seems straightforward. After all, if life begins at conception, the financial obligation should begin at conception, as well. The devil, as the old saying goes, is in the details.
Determining parentage is sometimes an issue. Once children are born, a simple and non-invasive DNA swab test usually produces results that are about 99.9% accurate. But there is no simple or accurate test to determine the parentage of unborn children.
A doctor could analyze a mother’s blood sample and make a parentage determination. But, this determination is highly invasive and not nearly as accurate. Chances are, the matter will end up in court, where a Naperville child support lawyer will have a say in the outcome. An attorney could challenge the blood test and/or the doctor’s analysis and conclusions.
Furthermore, a maternal blood draw must be safe for both mother and baby. What happens if the test is unsafe? Does a court still have jurisdiction to enter a child support order? Who decides what’s “safe” or “unsafe” for mothers and babies? Is it judges or mothers?
There is another issue as well. As mentioned, child support in Illinois must give children the same standard of living they would have had if their parents were married. When children are in the womb, aside from maternal nutrition and health, the standard of living is largely irrelevant. So, the guidelines are probably inappropriate. A proper child support amount is anyone’s guess.
Additionally, child support in Illinois is partially contingent on parenting time, as mentioned above. If the mother and father are separated, and they probably are, the mother theoretically has 100% of the overnights. This imbalance has a major effect on the child support amount. That effect might or might not be justified.
Arguably, the financial obligation extends to prenatal care. However, this extension is not straightforward, either.
As the name implies, maternal and prenatal care often focuses more on the mother than the baby. Fathers clearly are not responsible for the mothers’ health. Fathers do not have to pay mothers’ health insurance premiums. Then again, maybe they are responsible for such costs since mother and baby are medically joined together at this point.
Furthermore, if fathers have a legal obligation to pay for prenatal care, or a share of that medical care, what is the extent of that obligation? Not all prenatal doctors are created equally. Should a father have to pay for whatever doctor the mother chooses, even if she chooses the most expensive prenatal physician in Chicagoland?
Obviously, the demise of Roe v. Wade has created a number of questions that state lawmakers must resolve and Naperville child support lawyers must interpret and leverage to best serve their clients.
Reproductive laws are changing, and child support laws will probably be changing as well. For a free consultation with an experienced Naperville child support lawyer, contact Keller Legal Services by calling 630-505-1515. After-hours, virtual, and home visits are available.