The Bradley Amendment: Prohibition Against Retroactive Modification of Child Support Arrearages

The Bradley Amendment: Prohibition Against Retroactive Modification of Child Support Arrearages

Order Code RS20642
July 27, 20000
CRS Report for Congress
Received through the CRS Web
The Bradley Amendment: Prohibition Against
Retroactive Modification of Child Support
Arrearages
(name redacted)
Legislative Attorney
American Law Division
Summary
The Bradley Amendment prohibits the retroactive State modification of child
support arrearages. Under current law, no matter what the circumstances, a State cannot
modify delinquent child support obligations. The Amendment has come under criticism
by noncustodial parent advocacy groups because of the inflexibility of its application.
Supporters of the Amendment argue that it prevents affluent parents from avoiding
delinquent child support obligations. Pending legislation in the 106th Congress, while not
repealing the Amendment, would have the effect of modifying the application of the
Amendment under certain circumstances.
Background
The Bradley Amendment (“Amendment”)1 is a 1986 amendment to Title IV of the
Social Security Act which prohibits the retroactive modification of child support
arrearages.2 The Amendment language was contained in S. 2706,3 the “Sixth Omnibus
Reconciliation Act, 1986,” and was introduced in an earlier bill by Senator William
1 Pub. L.99-509, Title IX, § 9103(a), 100 Stat. 1973 (Oct. 21, 1986). Codified at 42 U.S.C. § 666
(a)(9).
2 Within the context of the Amendment, a child support arrearage is a past due, unpaid child
support obligation.
3 S. 2706, 99th Cong., 2d Sess. (1986).
Congressional Research Service ˜ The Library of Congress

CRS-2
Bradley,4 from whom the Amendment takes its name. The House bill5 was enacted in
place of the Senate bill, as the Omnibus Budget Reconciliation Act of 1986.6 Although
originally the House bill did not contain a provision regarding retroactive child support
modifications, the Senate bill language was added to the House bill following the
conference.7
The Amendment currently states:
(9) Procedures which require that any payment or
installment of support under any child support order, whether
ordered through the State judicial system or through the
expedited processes required by paragraph (2) is (on and after
the date it is due)--
(A) a judgment by operation of law, with
the full force, effect, and attributes of a judgment
of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and
credit in such State and in any other State, and
(C) not subject to retroactive modification by
such State or by any other State;
except that such procedures may permit modification with
respect to any period during which there is pending a
petition for modification, but only from the date that notice
of such petition has been given, either directly or through
the appropriate agent, to the obligee or (where the obligee
is the petitioner) to the other obligor.8
The practical effect of this provision is not to allow the retroactive modification by any
State of an existing child support arrearage. While most commentators focus on the
States’ inability to reduce child support arrearages retroactively, the Amendment also
prevents the States from retroactively increasing child support arrearages.9
It is instructive to examine the legislative history in order to determine the
Congressional intent underlying the enactment of the Amendment. The Senate Report
4 Senator Bradley and Senator Russell Long introduced S. 2404, the “Interstate Child Support
Act,”a bill to prohibit the retroactive modification of child support arrearages, on May 5, 1986.
(S. 2404, 99th Cong., 2nd Sess. (1986)). There was no formally introduced amendment to S. 2706
which contained the Amendment language.
5 H.R. 5300, 99th Cong., 2d Sess. (1986).
6 Pub. L. 99-509, 100 Stat. 1874 (Oct. 21, 1986).
7 H. Conf. Rep. No.1012, 99th Cong., 2d Sess. 272 (1986).
8 42 U.S.C. § 666(a)(9).
9 While this situation would probably be unusual, the dramatic improvement in the financial
circumstances of a noncustodial parent (perhaps through winning a lottery) might encourage a
desire to retroactively raise child support arrearages.

CRS-3
examined the current law concerning child support arrearages. It noted that certain States
allowed a child support award to be retroactively modified. In these States, the
administrative entity or court was able to reduce or nullify arrearages.10 The Amendment
added a new requirement to the child support enforcement program under title IV of the
Social Security Act which the States were required to meet in order to be in compliance
with the program. In order to meet this new requirement, State laws relating to child
support orders must prohibit changes to those orders which were effective on a retroactive
basis. The Report language states:
The Committee recognizes that a person’s financial circumstances change.
The noncustodial parent may lose his or her job or face other
circumstances that cause him or her not to be able to afford the original
child support award. The amendment is not intended to prevent changes
in future child support payments if the financial situation of the
noncustodial parent changes. What the Committee is seeking to prevent
is the purposeful noncompliance by the noncustodial parent, because of his
hope that his child support obligation will be retroactively forgiven.11
The Report language further states that if the noncustodial parent’s financial circumstances
change because of unemployment, illness, or other reasons, the Amendment puts the
burden on the noncustodial parent to notify the custodial parent and the court or entity
which issued the child support order of the noncustodial parent’s changed financial
circumstances and the noncustodial parent’s intention to have his/her child support order
modified. No modification would be allowed before the date of this notification.12 The
House Conference Report13 language reinforced the intentions of the Senate Report and
used language nearly identical to that contained in the Senate Report.
Regulations have been promulgated which are consistent with the provisions of the
Amendment.14 The Federal Register release accompanying the final regulation reflects the
legislative history.15
Application of the Amendment
It is beyond the scope of this report to evaluate the success or failure of the
Amendment within the context of the collection of child support arrearages. Numerous
commentators have focused upon the lack of flexibility in the Amendment’s notification
requirements. Proponents of a repeal or revision of the Amendment cite two particular
situations involving arrearages incurred by noncustodial parents. One case involved a
noncustodial father who was held hostage in Kuwait for almost five months and who was,
therefore, unable to comply with the Amendment’s notification procedures. Following his
10 S. Rep. No. 348, 99th Cong., 2d Sess. 155 (1986).
11 Id.
12 Id.
13 H. Conf. Rep. No.1012, 99th Cong., 2d Sess. 272 (1986).
14 45 C.F.R. § 303.206 (2000).
15 54 F.R. 15,758-15,762 (1989).

CRS-4
release, he was arrested16 for nonpayment of child support.17 The second case involved an
individual who was incarcerated for murder. Following his release and exoneration, he was
arrested18 for nonpayment of child support.19 Obviously, the hostage in Kuwait was in no
position to comply with the notification provisions of the Amendment. Legal and factual
questions arise as to the ability of the prisoner to comply with the provisions of the
Amendment.20 Another consideration is that the Amendment provides that an “appropriate
agent” can perform the notification procedure. Such an agent might be a relative or a
lawyer. Although the use of an agent does not necessarily resolve all instances when a
parent is unavailable to comply with the notification provisions of the Amendment, it does
provide an option which may be able to be utilized under certain circumstances.
Various noncustodial parental advocacy groups have encouraged the repeal of the
Amendment or the enactment of an amendment to the Amendment. One such group is the
Alliance for Non-Custodial Parental Rights Legislative Action Center.21 Other
commentators and advocates do not want changes made to the Amendment. A
spokesperson for the Center for Law and Social Policy stated that if the Amendment were
repealed, it would “provide an incentive for guys who can pay but are determined not to.”22
Arguments can be made for the repeal/modification of the Amendment, as well as for the
retention of the Amendment in its current form.
Judicial interpretations of the Amendment have examined its applicability under
certain specific sets of circumstances. For example, the court determined that a child
support award, established after a trial, but made effective as of the first day of the day of
the divorce trial, was not a retroactive modification of a child support obligation, as
prohibited by the Amendment.23
Another judicial interpretation of the Amendment prohibited a trial court from
ordering a father to pay child support retroactively to the date prior to the filing of his
application to modify child support. 24 Other cases have applied the Amendment to very
16 The arrest of the parent in arrears was a State action, not required by the Amendment.
17 Associated Press File, Dec. 15, 1990.
18 See note 14.
19 Cheryl Wetzstein, Child-Support-Law amendment comes to attention of Hill, Wash. Times,
April 27, 1999, at A8 (cited to afterward as “Wetzstein”).
20 Presumably the prisoner was not employed during his incarceration; it is possible that he might
have complied with the notification requirements and requested a modification of his child support
order through his legal counsel. However, the factual and legal circumstances surrounding this
situation are uncertain, so no definitive conclusion can be made.
21 This group’s website is located at [http://www.ancpr.org]. The group provides model letters to
write to federal legislators to request a modification and/or repeal of the Amendment.
22 Wetzstein.
23 Mallamo v. Mallamo, 280 N.J. Super. 8, 654 A.2d 474 (1995).
24 Dean v. Dean, Neb.App. 1996, 552, N.W.2d 310 (1996).

CRS-5
specific cases involving child support and arrearages.25 It does not appear that there have
been constitutional challenges to the Amendment.
Legislative Activity
It does not appear that Congress has ever given serious consideration to a repeal of
the Amendment. However, legislative proposals in the 106th Congress, if enacted, would
have the effect of modifying the application of the Amendment in certain circumstances.
Title 5 of H.R. 467826 provides funding for grants to public and private entities for
demonstration projects designed to: promote marriage, promote successful parenting, and
help poor fathers obtain better jobs. Under the proposed fatherhood grant program, the
panel awarding the grants would give preference to entities that had a written agreement
with the Child Support Enforcement agency in which the agency would cancel child
support arrearages owed to the State by the father, if the father was maintaining a regular
child support payment schedule or was living with his children. Although this provision
does not repeal the Amendment, it would allow retroactive modification of child support
obligations for noncustodial fathers who were living in a community covered by the grant,
if the grantee had the above-mentioned agreement with the Child Support Enforcement
agency and the father was either paying child support on a regular basis, or had reunited
with his children.27 A similar provision is contained in H.R. 307328 which was passed by
the House on November 10, 1999.29
25 State ex rel. Dept. of Human Services v. Flo, Iowa, 1991, 477 N.W. 2d 383 (1991); Comer v.
Comer, 14 Cal. 4th 504, 927 P.2d 265 (1996); Hunter v. Thompson, 151 Wis. 2d 556, 445 N.W.2d
(1989).
26 106th Cong., 2d Sess. (2000).
27 The bill remains under Committee consideration and was referred to: 1) the House Ways and
Means Committee, where it was referred to the Subcommittee on Human Resources where a Mark-
up Session was held on June 27, 2000 and from where the bill was forwarded back to the Full
Committee and where a Committee Mark-up was held and where it was ordered to be reported on
July 19, 2000; 2) the House Judiciary Committee where it was referred to the Subcommittee on
Immigration and Claims from where it has not emerged; and 3) the House Education and
Workforce Committee from where it has not emerged.
28 Fathers Count Act of 1999 (1999).
29 The bill was received in the Senate, read twice and referred to the Committee on Finance from
where it has not emerged.

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to al Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentional y made
any other changes to any report published on EveryCRSReport.com.
CRS reports, as a work of the United States government, are not subject to copyright protection in
the United States. Any CRS report may be reproduced and distributed in its entirety without
permission from CRS. However, as a CRS report may include copyrighted images or material from a
third party, you may need to obtain permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
Information in a CRS report should not be relied upon for purposes other than public
understanding of information that has been provided by CRS to members of Congress in
connection with CRS' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.