Child support is an enormous issue in the United States. In August 2015, Mark Greenberg, the Acting Assistant Secretary for the Administration for Children and Families, a division of the U.S. Department of Health & Human Services, wrote that 1 in 4 children nationwide had an active child support case. Court-ordered child support obligations totaled $32.9 billion in 2013 according to the U.S. Census Bureau, not including past-due payments. Unpaid child support is estimated at $113 billion nationally.
Further, child support is an issue that mainly impacts the poor. Based on 2013 data, 76% of parents who owed past due child support earned $10,000 or less per year, while another 9% earned between $10,001 and $20,000. The poverty rate of custodial parents who received child support payments was 28.8%.
“Billing poor fathers doesn’t help poor mothers and kids become less poor,” observed Jacquelyn Boggess with the Center for Family Policy and Practice. Instead, it results in “a highly indebted individual.” It can also result in parents being jailed for nonpayment of their child support obligations.
The practice of incarcerating mostly poor parents for failing to pay child support is well over a century old. In 1910, the National Conference of Commissions on Uniform State Laws approved the Uniform Desertion and Non-Support Act, which imposed criminal penalties on fathers who failed or refused to financially support their children. This was an early attempt to improve enforcement of child support orders, though it did not extend to parents who moved to another state.
The National Conference attempted to remedy that loophole in 1950 by approving the Uniform Reciprocal Enforcement of Support Act, which provided for civil or criminal enforcement of out-of-jurisdiction child support orders. Yet the Act’s commentary noted that returning child support delinquents to their home state would be of limited value: “If convicted, he would be placed in jail and the state would still have the burden of support of the destitute family. Even when free again, he would be under the heavy handicap of ‘a man with a criminal record’ in finding a job and supporting his family. However, the commissioners finally decided to leave criminal enforcement in the Act because it was the traditional method of solving the problem and it was not certain that civil enforcement would take care of all cases; and it was felt that, while actual extradition would be of little use, the threat of extradition might be a powerful weapon in the case of shiftless and slippery [child support] obligors.”
The Act’s commentary succinctly stated the problem. Incarceration is the nuclear option of child support enforcement; the threat of going to jail might be useful in persuading reluctant parents to pay child support, but actually doing so does not achieve the desired result – payment – and is fraught with negative consequences. If one only considers the substantial cost of incarceration, it becomes a very expensive option for enforcing child support orders. Nonetheless, according to one estimate 50,000 people are incarcerated in U.S. prisons and jails for nonpayment of child support.
“Parents who are truly destitute go to jail over and over again for child support debt simply because they’re poor,” stated Sarah Geraghty, an attorney with the Southern Center for Human Rights who represented a class of Georgia prisoners who were jailed for nonpayment of child support without legal representation. “We see many cases in which the person is released, they’re given three months to pay a large amount of money, and then if they can’t do that they’re tossed right back into county jail.”
Even when parents want to pay, the amount set by the court may be more than they can afford. A 2009 study by The Urban Institute, a nonpartisan Washington, D.C. think tank, found that half of child support debtors in California had no reported income in the previous two years, and the median net income of those reporting any income was $2,881.
“One of my former clients worked at Piggly Wiggly [supermarket] and they were taking 65 percent of her paycheck,” Geraghty stated. “It left her in a position where there was simply no way that she could survive on the amount she had left.”
Some critics have compared the situation to the infamous “debtors’ prisons” that were supposedly outlawed in the 1880s, which have recently faced increased scrutiny and legal challenges. [See, e.g.: PLN, Nov. 2013, p.20].
“I try very carefully not to exaggerate, but I do think that’s an apt comparison,” Geraghty said of debtors’ prisons. “And I think anyone who went down and watched one of those proceedings would agree with me.... You see a room full of indigent parents.... The hearings take only 15 seconds. The judge asks, ‘Do you have any money to pay?’ the person pleads and the judge says, ‘OK you’re going to jail.’”
Federal Child Support Enforcement
The federal Child Support Enforcement (CSE) program was signed into law in 1975 as P.L. 93-647, Title IV-D of the Social Security Act. It was intended to help strengthen families by securing financial support for children from noncustodial parents, with the additional goal of keeping some families off public assistance. Noncustodial parents are overwhelmingly men; less than 18% of custodial parents are fathers.
Although the states administer their own CSE programs, the federal government helps to fund, evaluate, monitor and support them. Federal officials also provide technical assistance and assist in locating noncustodial parents and collecting child support payments.
The initial approach of the CSE program was “welfare cost-recovery.” More recently it has adopted a “family-first” philosophy, giving families who are no longer receiving financial assistance first claim on current child support payments.
Under the CSE program, a variety of collection methods are available to state agencies, including deductions from a parent’s income; intercepting state and federal tax refunds, lottery winnings and unemployment compensation; filing liens against property; seizing assets – including public and private retirement and financial institution accounts; suspending driver’s, professional, sports and recreational licenses; requesting that the federal government revoke, deny or restrict passports; reporting child support obligations to credit bureaus; initiating civil and criminal contempt proceedings; and filing criminal charges.
All 50 states have passed statutes criminalizing failure to pay child support, though some have decided to treat nonsupport as a civil matter – failure to obey a court order. Both can result in imprisonment, but the latter approach leaves the noncustodial parent without a criminal record.
The federal CSE statute required the states to adopt the Uniform Interstate Family Support Act and expand full faith and credit procedures to allow for effective enforcement of child support orders across state lines.
The law also added federal criminal penalties under certain circumstances. Pursuant to 18 U.S.C. § 228, parents are subject to federal prosecution if they willfully fail to pay child support ordered by a court for a child who lives in another state, and the support payments have been past due for over one year or the amount owed is more than $5,000. That offense is a misdemeanor that can result in up to six months’ imprisonment. If the child support owed exceeds $10,000 or is overdue by more than two years, the offense is a felony that carries up to a two-year prison sentence.
In fiscal year 2015, the budget for CSE and family support programs was just over $4 billion, and almost $30 billion in child support payments was paid to custodial parents. Vicki Turetsky, Commissioner of the Office of Child Support Enforcement, wrote that CSE had provided services to 16 million children.
State CSE programs also involve large numbers of children and huge sums of money. Florida’s CSE program collected $1.52 billion, the vast majority through payroll deductions, for almost a million children in FY 2014, while the Washington State CSE program collected $677.8 million for 734,194 children in FY 2015.
A noncustodial parent’s failure to pay court-ordered child support often forces the custodial parent to apply for Temporary Assistance for Needy Families (TANF), a federal program administered through the states, for financial help. In order to receive assistance through programs like TANF and Medicaid, the custodial parent is required to provide identifying information for their children’s other parent; once this happens, the noncustodial parent is required to reimburse TANF for the financial aid provided in lieu of child support. In 2013, $30 billion in child support was owed by noncustodial parents to state and federal governments for TANF reimbursement.
TANF debt changes the equation. No longer is it the custodial parent who is seeking to enforce a child support order; the government now has an interest in being paid, and a government attorney prosecutes noncustodial parents who owe TANF reimbursements whether they are represented by counsel or not.
When a child support payment for TANF reimbursement is made, it is kept by the government rather than being sent to the custodial parent. Further, unpaid TANF debt accrues interest, often at high rates – up to 12% annually depending on the state – and cannot be discharged in bankruptcy.
Income withholding is by far the most effective tool for child support enforcement. In 2014, over 70% of the $28 billion in child support payments collected by CSE was obtained by income withholding through payroll deductions. The remainder was obtained by intercepting federal and state income tax returns and seizing unemployment compensation, among other methods. It is estimated that less than 2% of child support payments were associated with the threat of incarceration.
However, many of the strategies for child support enforcement break down when the noncustodial parent is poor and unemployed. For income withholding or income tax refund interception to work, the noncustodial parent must have a job. For liens to be effective, property must be owned. A person who can’t afford a car may not care about having their driver’s license suspended. One may be too poor to have money in a bank account, thus financial assets can’t be seized. So what happens to a poor parent who can’t afford to pay?
Although a general protocol is followed, under the CSE program individual caseworkers have discretion over how to manage a case, including the determination of which child support collection method to use. If a caseworker decides that an appropriate amount of time has been spent trying to get a noncustodial parent to pay outstanding child support, they usually have the authority to request the issuance of a warrant to bring that parent before a judge. Sometimes caseworkers use subpoenas instead of warrants.
This illustrates the main difference between poor and non-poor noncustodial parents who owe child support. There are more ways to enforce child support orders for parents who aren’t impoverished, as indicated by the options listed above. For poor parents, particularly those who are unemployed or work minimum-wage jobs and thus can’t afford to meet their child support obligations, enforcement options are limited and threats of being jailed – or actual incarceration – is more likely. In effect, poor noncustodial parents are at greater risk of going to jail simply because they are poor, which illustrates how poverty increasingly is being criminalized.
“The people we see in jail are not wealthy ‘deadbeat’ dads,” said Geraghty with the Southern Center for Human Rights. “They are often working people who have lost jobs and become indigent.”
A judge has several ways to deal with a noncustodial parent who owes child support, and one common approach is to hold a civil contempt hearing. This may happen when a person refuses to obey a court order, especially if the purpose of the contempt penalty is for the benefit of a private party, such as a custodial parent.
Contempt hearings do not require that the noncustodial parent receive the same level of due process as a criminal defendant, such as a presumption of innocence. The job of the judge in a civil contempt hearing is to separate the people who won’t pay from those who can’t pay, yet the noncustodial parent may bear the burden of proving their inability to pay. This requires more than simple testimony. Documentation showing income and attempts at finding employment must be presented in court.
Thus, civil contempt can become a trap for the poor and poorly educated who have little knowledge of what is required of them in civil contempt hearings. And even though being held in civil contempt can result in a jail term for nonpayment of child support, there is no right to an attorney. Of course, poor parents who are unable to pay child support are also unlikely to be able to afford an attorney to represent them in contempt hearings.
In the seminal case of Turner v. Rogers, 131 S.Ct. 2507 (2011), the U.S. Supreme Court held the Fourteenth Amendment does not automatically require the state to provide counsel for indigent parents facing possible incarceration in civil contempt proceedings for nonpayment of child support. “In particular, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order,” the Court wrote.
The case involved a South Carolina court order requiring Michael D. Turner to pay over $200 per month in child support. He failed to make the payments and was held in civil contempt five times. The fifth time he served a six-month jail sentence, which caused his past due child support to grow to over $5,700. When he failed to appear for a court hearing after his release from jail, the court sentenced him to 12 months without first determining whether he had the ability to pay his child support debt.
While there is no right to an attorney in civil contempt hearings, the Supreme Court held that “procedural safeguards” are necessary to reduce the risk of an erroneous deprivation of liberty. Those safeguards include “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for [the defendant] to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.”
The Court held that Turner’s incarceration violated his due process rights, as he had “received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding.” [See: PLN, Nov. 2011, p.14].
On July 11, 2014, the Supreme Court of Georgia extended the holding in Turner to find no automatic right to counsel even when the state is the opposing party, the government is represented by counsel and incarceration can result. The Court affirmed the decertification of a class of indigent, incarcerated child support debtors who were not represented by counsel at their civil contempt hearings, which were initiated by the Division of Child Support of the Georgia Department of Human Services (DHS).
“[W]hether any particular parent is entitled to a lawyer at government expense depends always, we think, on the particular and unique circumstances of [the] case, including the complexity of the case, as well as the extent to which alternative measures might be employed to ensure that the proceeding is fundamentally fair,” the state Supreme Court stated. “We conclude only that there is no absolute inflexible and categorical right to appointed counsel in such proceedings as a matter of due process, even when [DHS], represented by its own lawyers, pursues the incarceration of an indigent parent.” See: Miller v. Deal, 295 Ga. 504, 761 S.E.2d 274 (Ga. 2014) [PLN, Feb. 2015, p.51; July 2011, p.40].
In a dissenting opinion, one justice wrote that the lead plaintiff in the case, Randy Miller, a veteran, owed $4,000 in child support but had less than $1.00 in his bank account, no assets and was unemployed at the time he was held in contempt and sentenced to four months in jail for nonpayment. “I feel like it’s more unfair to the kids, because now not only do the kids not get any money, nor do they even get to spend time with their fathers once they get locked up,” Miller stated.
As opposed to civil contempt, the purpose of criminal contempt proceedings is to vindicate the authority of the court. This might occur when a defendant insults, disrespects or interferes with the functioning of the court by, for example, threatening the judge or jury. A criminal contempt proceeding is separate from the underlying case, and conviction results in a criminal record. Criminal contempt defendants are entitled to due process protections such as the right to notice of the charges (although an indictment is not required), to present a defense, to call witnesses, to have an impartial judge and to be represented by counsel. The greater complexity of criminal contempt proceedings means they take longer than those involving civil contempt – especially since an indigency hearing may be required as well as a jury trial.
While some parents can – and do – pay their court-ordered child support to avoid being held in contempt, others can’t – and therefore don’t – and end up behind bars.
Incarceration and Consequences
Information on the total number of people incarcerated for nonpayment of child support is very limited. Many jurisdictions do not track such data, and sometimes the total number of people jailed for contempt does not include a breakdown of cases involving child support.
The Record, a newspaper in Hackensack, New Jersey, reported that 1,800 parents who owed child support had been jailed or placed on electronic monitoring in 2013 in two counties alone.
Records from Gwinnett County, Georgia indicated that 3,612 people were jailed for failure to pay child support over a ten-year period ending in 2011, with each serving an average of 127 days.
“Some will languish for months and not be able to come up with $100 to $200. Some can’t pay it but, sadly, I think some do have the money but just don’t want to pay,” said Gwinnett County Sheriff Butch Conway.
A 2009 survey of South Carolina county jails found that 13.2% of jail prisoners were imprisoned for nonpayment of child support. In South Carolina, being only five days late on a child support payment can trigger a bench warrant for a court hearing that may end with the noncustodial parent serving a jail sentence. Parents are sometimes jailed until they pay a “purge fee” toward their child support debt.
Based on data compiled by the Texas Attorney General’s office, Bexar County jailed 1,013 parents in fiscal year 2009 for failure to pay child support, while Dallas, Harris, Tarrant and Travis counties sent a combined 631 parents to jail that year. [See: PLN, May, 2011, p.22].
According to a 2011 blog post by Douglas A. Galbi, Ph.D., an estimated 50,000 people nationwide are in jail or prison due to nonpayment of child support, based on his analysis of data extrapolated from four states – South Carolina, Virginia, Indiana and Georgia. However, he noted that “Available data are complex and inconsistent, even when provided from official sources and in legal proceedings,” and the “actual total number might plausibly be between 25,000 and 90,000.”
Regardless of the actual number of people serving time for nonpayment of child support, those otherwise law-abiding citizens are subject to the same conditions of confinement as other prisoners. They may be strip searched, denied medical care, subjected to excessive force by guards, or even assaulted or raped – the same abuses that other prisoners routinely face in U.S. prisons and jails, as regularly reported in PLN.
For example, when Anthony McCoy was booked into jail in Nashville, Tennessee in November 2009 for failure to pay child support, a guard ripped out a gold “grill” that was cemented to his teeth, resulting in dental injuries. McCoy sued and settled the case in March 2010 for $95,000. [See: PLN, Nov. 2010, p.28].
Two administrators at the Liberty County Jail in Texas – the warden, Timothy New, and the chief of security, Kenneth R. Nunn – were fired in September 2012 following allegations that they had sexually assaulted a female prisoner at the privately-operated facility. According to a notice of claim filed by her attorney, Brandy Nichole O’Brien said she “was repeatedly subjected to assault and battery, sexual assault, deviant sexual assault, humiliation, degradation and intentional infliction of emotional distress....” O’Brien had been jailed for failing to make child support payments. [See: PLN, July 2014, p.47].
Former Los Angeles County jail prisoner Jay Reynolds, 39, was arrested in March 1999 on an out-of-state warrant for nonpayment of child support. A court ordered his release after the other state declined to extradite him, but he was instead returned to jail where he was brutally beaten and raped by two other prisoners. He filed suit in Los Angeles County superior court and a jury awarded him $1 million on November 20, 2001, though all but $25,000 of the verdict was later overturned by the Court of Appeal. [See: PLN, June 2002, p.21; Aug. 2005, p.34].
Tom Harris picked the wrong time to be arrested in New Orleans for nonpayment of child support. He was booked into the Orleans Parish Prison on August 25, 2005, and should have been released several days later. But then Hurricane Katrina made landfall, Orleans Parish prisoners were evacuated to other facilities, and Harris was not freed until February 2016 – five months later. [See: PLN, May 2007, p.18].
And when Mario Ludovici was arrested in October 2001 and booked into the Lackawanna County Prison in Pennsylvania for unpaid child support, he was drunk. He had a verbal altercation with guards over a pair of sneakers and was tackled, choked and handcuffed, then punched. Jail officials did not investigate the incident. Ludovici filed a federal lawsuit alleging excessive force and deliberate indifference, which eventually settled for $15,000. [See: PLN, Aug. 2005, p.9].
In some cases failure to pay child support may result in a death sentence, as there are numerous examples of people who have died after being jailed for nonpayment – though the total number of such deaths is unknown because no agency collects that data.
Last month, PLN reported the April 5, 2016 death of Darius Robinson at a jail in Caddo County, Oklahoma. His death was ruled a homicide; he was pepper sprayed, handcuffed and strangled by a jail guard who put him in a neck hold. The medical examiner found Robinson had died of “asphyxiation due to manual neck compression.” He was reportedly behaving erratically, but the district attorney initially refused to release surveillance video of the incident. Robinson had been arrested on a 2008 warrant for nonpayment of child support. He had seven children. [See: PLN, Aug. 2016, p.20].
“The jailers choked Darius to death, but he was killed by the justice system in Caddo County,” said Bryan Terrell, one of the attorneys representing Robinson’s family members.
On May 23, 2016, the family of Phillip David Anderson, 49, filed a federal lawsuit over his death at the Tuscaloosa County jail in Alabama. Anderson, a father of four, had been jailed on a contempt warrant in a child support case for missing a hearing. He reportedly screamed in pain and pleaded for medical care for a week before he was finally taken to a hospital with a “massively distended” abdomen in February 2015. His death was caused by an untreated perforated ulcer.
“Defendants rejected or belittled Mr. Anderson’s constant begging for medical attention,” the lawsuit stated. “His screams in excruciating agony from his serious medical condition were met with demands that he keep quiet, or stop faking and malingering.”
R&B singer Sean Levert died at the Cuyahoga County jail in Ohio in 2008 while serving a 22-month sentence for failing to pay $90,000 in outstanding child support debt. Prior to his incarceration he had been taking Xanax, an anti-anxiety medication, which the judge noted and mentioned to the sheriff. However, after being booked into the jail Levert never received his prescribed Xanax and began suffering withdrawal symptoms – talking to himself and having hallucinations.
He was eventually placed in a restraint chair, and medical staff failed to provide him with medications ordered by the jail’s doctor. Following Levert’s death his widow filed a federal lawsuit that settled for $4 million in June 2010. [See: PLN, Dec. 2010, p.20].
Frank Crownover, 51, facing a felony charge for nonpayment of child support, was held at a jail in Ottawa County, Oklahoma in January 2006. He argued with his cellmate, Charles Bowes, 25, who was awaiting trial on rape charges. Bowes killed Crownover by ramming his head into a wall, and was subsequently charged with manslaughter. The incident occurred in the jail’s protective custody unit. [See: PLN, Sept. 2006, p.42].
And on July 24, 2001, Michael Deal, 54, a former police officer, was murdered by other prisoners at a county jail in Savannah, Georgia. He was strangled to death; the prisoners killed him to ensure he didn’t snitch on an escape plot, and tried to make it look like a suicide. Deal had been jailed for nonpayment of child support. [See: PLN, Nov. 2001, p.30].
These tragic deaths give an entirely new meaning to “deadbeat” parents who are jailed for failing to pay child support, then end up dying while in custody.
Just the threat or possibility of incarceration can put child support debtors at risk, too. In June 2011, Thomas James Ball, a veteran, doused himself with gasoline, set himself on fire and burned to death in front of the courthouse in Keene, New Hampshire. He had battled with family court services for a decade over child custody issues related to a domestic violence charge that resulted in a not guilty verdict. He lost his job in 2009, was unable to keep making child support payments and was ordered to attend a contempt hearing.
Ball reportedly owed thousands in past due child support, and his ex-wife had asked the court to put him in jail. Prior to committing suicide he filed lawsuits and participated in protests at the courthouse, to no avail. He left behind a lengthy “last statement” that, among other issues, described his frustration with the justice system and child support enforcement.
“The ex-wife lawyer wants me jailed for back child support. The amount ranges from $2,200 to $3,000, depending on who you ask. Not big money after being separated over ten years and unemployed for the last two. But I do owe it. If I show up for court without the money and the lawyer [says] jail, then the judge will have the bailiff take me into custody. There really are no surprises on how the system works once you know how it actually works,” he wrote.
More recently, Walter L. Scott, 50, was shot and killed by North Charleston, South Carolina police officer Michael T. Slager as he fled from a traffic stop for a broken taillight on April 4, 2015. Slager claimed that Scott, who was unarmed, had tried to grab his Taser during a scuffle; he shot Scott in the back multiple times as he was fleeing. Slager then picked up his Taser and dropped it near Scott’s body, 15 to 20 feet away, in an apparent attempt to justify the shooting. Slager has since been indicted on murder charges and also faces federal charges for violating Scott’s civil rights by killing him.
Why did Scott try to run from the traffic stop? He had an outstanding warrant for failure to pay child support for his four children, and previously had been jailed for nonpayment. “He had back child support and didn’t want to go to jail for back child support,” said Chris Stewart, an attorney representing Scott’s family.
Scott’s death highlighted the plight that many noncustodial parents face. Years before, he was incarcerated for 15 days for nonpayment, even though he claimed a state agency had misdirected his child support payment to the mother of one of his other children. By the time he was released from jail, he had lost his $35,000-a-year job at a filmmaking company. In frustration he turned to alcohol and went through cycles of brief employment, during which he paid child support, and unemployment, which resulted in three stints in jail for failure to pay. One of those times he served five months. Scott had participated in a parenting program called Father to Father in an effort to get back on track with his payments, but his child support debt continued to grow while he was incarcerated; at the time of his death he owed over $18,000.
“I hate it to see when fathers don’t pay child support, [but] killing someone over it – that’s just mind-boggling,” said Sue Berkowitz, director of the Appleseed Legal Justice Center in Columbia, South Carolina.
While the above examples involve noncustodial parents who owed child support, parents who have custody of their children are not immune from imprisonment because support and custody issues are sometimes handled by the court separately.
Henry Peisch, 56, learned that when he was arrested on April 8, 2016 in Bergen County, New Jersey for failure to pay child and spousal support. Although three of Peisch’s four children live with him (two of whom are now adults), he was ordered to pay child support for all four to his ex-wife, who has custody of his youngest child, in addition to spousal support. The court reportedly told Peisch to sell his vehicle to pay $3,000 in child support debt, and also ordered him to participate in a work release program at the jail to earn income to apply towards his past due child support.
According to the Bergen Record, “By the end of 2013 more than 40 Orders from Bergen County Family judges incarcerating parents for non-support had been overturned, most by the New Jersey Supreme Court. Those appeals showed a systematic denial of basic due process to litigants facing incarceration.”
Flaws in the System
In setting up the CSE program, Congress intended to create a fair and efficient system to ensure that parents meet their child support obligations. Assumptions underpinning the program were based on studies that indicated most noncustodial fathers could pay some child support, and their incomes tended to “rise relatively rapidly” within a few years after fathering a child. Those assumptions work well for upper- and middle-class parents, but not when applied to poor parents – especially those receiving government aid.
Parents on the lower end of the socio-economic spectrum often face barriers to employment. This is due to a combination of factors such as limited education and work skills, substance abuse addictions, criminal records and health-related problems. Traditionally, noncustodial parents have had limited or no access to welfare-type programs such as financial assistance, employment-related services from TANF, Medicaid, food stamps and the Earned Income Tax Credit. In other words, they are required to support their children but receive none of the government benefits to which custodial parents may be eligible.
With fewer employment opportunities and often little understanding of the court system – which bases child support payments on the income the court presumes the noncustodial parent could be earning rather than their actual income – poor noncustodial parents are more likely to accrue large child support debts they will never be able to pay.
As a result they are subject to a number of sanctions, including having their driver’s license suspended – which makes it difficult for them to get to work if they have a job – and civil or criminal contempt and incarceration.
There are many negative collateral consequences to jailing people due to unpaid child support. Notably, it locks poor noncustodial parents into a cycle of poverty, diminishes their ability to find work (or better-paying jobs), and makes it difficult or impossible to participate in academic classes or vocational training to expand their employment options. Sometimes other family members will pay the child support a noncustodial parent owes to keep him out of jail; thus, child support enforcement can impact more people than just the delinquent parent.
The most obvious flaw of incarcerating parents who owe child support is that when they are unable, as opposed to unwilling, to make child support payments, they are still unable to pay while behind bars. Most people cannot pay anything when in jail, and if they were employed prior to being imprisoned they may lose their job by the time they get out – making it even harder to catch up on past due child support.
“If the goal of the child support system is to get support for children, parents can’t do that if they’re incarcerated,” noted CUNY law professor Ann Cammett, an expert on child support issues.
Further, child support debt accumulates during incarceration because a parent’s court-ordered child support does not stop when he is jailed unless he successfully moves for an order to modify the payments. Many prisoners do not know this. In some cases, such as in Nebraska, prison officials have obstructed efforts to inform prisoners how they can file motions to modify their child support orders. [See: PLN, Oct. 2014, p.52].
According to 2010 data from the Office of Child Support Enforcement, of the 5.2 million parents in the U.S. who owed child support that year, approximately 662,000 were incarcerated (the vast majority for offenses unrelated to child support).
Most prisoners lack the resources necessary to continue paying child support. But since their court-ordered support payments continue to be based on presumed or imputed income instead of actual earnings, and because downward modifications of child support orders are difficult to obtain, prisoners often owe significant arrearages – sometimes tens of thousands of dollars – when they are released.
This can lead to their re-incarceration if they fail to pay past due child support once they get out. Child support obligations can have other consequences for former prisoners, too. In Tennessee, for example, parents with felony convictions who are not current on child support payments are unable to vote – although that restriction does not apply to delinquent parents without felony records.
Studies report mixed findings on prisoners who are released while facing large debts. Some research suggests that owing past due child support may help a former prisoner redefine himself and cease criminal activity in favor of responsible parenthood. Other studies indicate that significant debt provides an incentive for released prisoners not to seek employment or to work in the underground economy where income is not reported. The latter trend is stronger in cases where child support orders are out-of-proportion to former prisoners’ income, leaving them with little to live on after making support payments.
Alternative Approaches and Reforms
Faced with a highly successful way to collect child support – payroll deductions – and a very unsuccessful method – incarceration – some advocates have suggested helping parents obtain jobs so they can earn income to pay their support obligations rather than letting them sit in jail. This could be accomplished through the provision of vocational training, job placement services or government-sponsored work programs.
In Texas, judges can require a noncustodial parent of a child who receives TANF to either participate in the Texas Noncustodial Parent Choices Program (a work program), pay the child support they owe or face incarceration. The program is funded by the Texas Workforce Commission and the Texas Attorney General’s office.
If the noncustodial parent is employed surreptitiously, the work program will likely conflict with their under-the-table source of income, forcing them to admit the employment and make payments towards outstanding child support. If the noncustodial parent is unemployed, the program can help them secure a job. According to the Texas CSE website, on average, participating noncustodial parents made no child support payments for the eight months prior to entering the program. They paid an average of $176 per month in the first year after program completion – an increase of 57% compared to a control group of similar noncustodial parents not enrolled in the program.
The idea for the Texas Noncustodial Parent Choices program originated in Missouri, which implemented a Fathering Court in 1998. The Fathering Court allows a noncustodial parent who is behind in child support and facing incarceration to have his prosecution deferred. A case manager develops an action plan with the parent to help him become a more responsible father; community partners provide job training and employment while he participates in parenting classes. When the parent completes the action plan, the prosecution is dismissed. The Fathering Court concept has spread to Alabama, Iowa, Louisiana, Texas and Washington, D.C.
South Carolina received a federal grant in 2014 to fund “Operation Work,” which helps parents who owe child support meet their obligations. The program includes counselors, job coaches and other staff who enroll parents in education courses and help them gain employment skills; their child support payments are suspended while participating in the program.
In Virginia, the Intensive Case Monitoring (ICM) program began as a pilot project in four courts in 2008, and expanded to 31 by 2016. It followed decades of intensive and unsuccessful child support enforcement efforts that included incarceration and even public shaming through newspaper ads that displayed the names and photos of child support debtors and the amounts they owed.
The ICM program places parents who owe child support on monitoring instead of in jail. Participation in a weekly group for men called Club Reinvent is mandatory; the meetings offer a combination of practical advice and tips on job hunting, counseling and group discussion to help the men become better fathers.
ICM program requirements include making regular child support payments, regardless of the amount, and providing documented proof of seeking employment. Over 2,700 parents have participated in ICM and about 1,000 were dropped for failing to meet the requirements. State officials have collected about $4 million through ICM; parents who complete the program pay an average of $185 per month after graduation compared with $75 before enrolling.
At least 24 other states have established employment programs for noncustodial parents in partnership with state and local workforce agencies. Ensuring that parents have jobs, which means child support can be collected through payroll deductions, is certainly more effective than incarcerating poor and unemployed parents who are unable to make support payments. After all, if the goal is to ensure that parents pay their child support, government agencies should provide resources and services that help them meet that goal instead of punishing or imprisoning them for nonpayment.
Beyond work programs, systemic reforms are needed to ensure that the child support system is fair and puts the needs of children first – since child support is intended to benefit the child. It can reasonably be argued that forcing noncustodial parents into poverty, or putting them in jail where they are sometimes abused or killed, is not in the best interests of their children.
Some reforms that should be considered include basing child support orders on a noncustodial parent’s actual, not presumed, income; making modification of child support orders easier when the noncustodial or custodial parent’s income or employment status changes; reducing or eliminating fees and interest on past due child support; and automatically suspending child support payments when a parent is incarcerated.
Currently, child support orders do not have to be based on a parent’s actual income; in some cases courts can find that parents are “voluntarily underemployed,” and set child support orders based on the wages the court thinks the parent could or should be earning – even if they have repeatedly applied for and failed to find higher-paying jobs. Conversely, there is no requirement for custodial parents to be employed.
At a minimum, child support orders should reflect an amount that noncustodial parents are actually able to pay. A 2012 study by the Center for Policy Research found that parents paid a much higher amount of their child support obligations when placed on a reasonable payment schedule they could meet, rather than facing payments that were impossible to make. Current federal guidelines allow states to take up to 65% of a parent’s pretax income for child support, which can leave them without enough to live on and encourages nonpayment.
“When people have orders that they can’t comply with, it doesn’t motivate them to work and pay. It does the opposite,” said CSE Commissioner Vicki Turetsky.
Further, suspending drivers’ licenses or professional licenses as sanctions for failure to pay child support should be discontinued. A suspended driver’s license makes it hard for parents to drive to work or look for employment, while suspending professional licenses ensures it is impossible for parents to work in their profession and thus earn income subject to child support deductions.
Incarceration should be a last resort, and parents who face jail time should be provided legal representation if they cannot afford to hire an attorney, as with criminal cases. Two states, Kentucky and North Carolina, have programs where parents who owe child support are placed on house arrest and electronic monitoring instead of being jailed. While electronic monitoring has its own shortcomings, it at least allows parents to keep working or looking for employment rather than sitting in a cell.
More radical child support reforms include adopting a model whereby the government provides guaranteed minimum child support payments to custodial parents, then collects funds from noncustodial parents based on their ability to pay. This is the model used in most European nations, which ensures that custodial parents receive child support even if the other parent is unemployed, disabled, incarcerated or otherwise unable to make payments. It would replace the current, somewhat similar practice of providing financial aid to parents through TANF, then seeking TANF reimbursements from noncustodial parents.
In 2014, the Obama administration proposed new child support enforcement regulations that would classify incarceration as an “involuntary” circumstance and allow imprisoned parents to have their child support payments reduced or suspended. This would prevent prisoners from being released with massive debts that put them at risk of re-incarceration, though they would still need to file motions to modify their child support orders. Currently, 14 states do not allow child support modifications even when parents are in prison or jail.
The regulations, which also require state agencies to inform prisoners of their ability to modify child support payments, “will make sure that arrears don’t accumulate endlessly while a parent is incarcerated,” explained Turetsky. “Jail is appropriate for someone who is actively hiding assets, not appropriate for someone who couldn’t pay the order in the first place.”
The proposed regulations would also change existing rules to ensure that child support orders are based on a parent’s actual income instead of imputed or presumed income, and take into account the “subsistence needs” of noncustodial parents. The regulations, scheduled to be implemented in 2017, drew opposition from some members of Congress.
“I am fundamentally opposed to policies that allow parents to abdicate their responsibilities, which, in turn, results in more families having to go on welfare,” stated U.S. Senator Orrin G. Hatch, who chairs the Senate Finance Committee. Senator Hatch and other federal lawmakers have introduced legislation that would prevent the new child support regulations from going into effect.
Regardless of what if any reforms are implemented, it must be acknowledged that incarcerating parents who owe child support is especially irresponsible from an economic perspective. A 2012 study by the Vera Institute of Justice found the average cost of a state prisoner was $31,286 per year. It makes little sense to imprison parents who fail to pay child support when taxpayers must bear the cost of their confinement, and when incarceration does not resolve the issue of unpaid child support – which remains unpaid while they are locked up. Rather, the cost of a prison or jail term would be better spent helping poor and unemployed parents find jobs and become more responsible fathers and mothers.
Special thanks to Melanie Abbott for conducting the research for this article.
Sources: “Child Support Enforcement: Incarceration as the Last Resort for Nonpayment of Support,” Congressional Research Service Report #R42389 (March 6, 2012); “Analysis of Federal-State Financing of the Child Support Enforcement Program,” Congressional Research Service Report RL33422 (July 19, 2012); “Custodial Mothers and Fathers and Their Child Support: 2013,” U.S. Census Bureau (Jan. 2016); www.ncsea.org; www.researchgate.net; www.rawstory.com; www.urban.com; www.huffingtonpost.com; www.irps.wisc.edu; www.dshs.wa.gov; www.childsup.ca.gov; www.prrac.org; www.childsupport.ny.gov; www.docs.ny.gov; www.nytimes.com; www.nycourts.gov; www.vera.org; www.purplemotes.net; www.dor.myflorida.com; www.dc.state.fl.us; https://nrccfi.camden.rutgers.edu; NPR; www.tdcj.state.tx.us; www.texasattorneygeneral.gov; www.kgns.tv; www.nbcnews.com; www.schr.org; www.msnbc.com; Washington Post; www.temple.edu; www.ojp.usdoj.gov; www.acf.hhs.gov; The Marshall Project; www.postandcourier.com; The Daily Beast; www.bergendispatch.com; www.mysanantonio.com; ThinkProgress; www.governing.com
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|Cite||295 Ga. 504 (Ga. 2014)|
|Level||State Supreme Court|