Child Support Needs to Catch Up to Reality

By Ruth Graham

ONE KIND OF FAMILY is the one in an old greeting-card picture: two parents, one or more kids, all under one roof.

But another kind of family has become more and more common over the last several decades. We tend to call it “single parenting,” but it is really better described as an unmarried mother and father living apart, their children, and the government whose laws regulate their relationship.

That set of laws is the child-support system, and it covers 17 million American children—about a quarter of them. But that system is nearly 40 years old, established during a different economy, and built on an old model where the mother was the caretaker and the father simply brought home the bacon. Today, a group of critics is saying the system needs an update, not only to be fair to adults but to avoid hurting the children whose interests it is supposed to serve.

These critics are particularly focused on the role of fathers, who make up the vast majority of noncustodial parents. Fathers are overwhelmingly the target of the current system’s narrow focus on collection and enforcement. And for middle-class and high-income men, it may make sense to require simply that they pay up or else.

But 29 percent of families in the system have income below the federal poverty line, and many more have great trouble making ends meet. Since the system was first put in place, out-of-wedlock births have become less stigmatized and more common, while devastating wage stagnation has hit male workers. As a result, there are legions of low-income fathers far less able to hold up their end of the deal. They may find themselves unable to pay child support, and yet caught in a system that expects nothing else from them.

“Child support is a remnant of the days when we used to think that dads didn’t matter,” said Kathryn Edin, a sociologist at Johns Hopkins University who has spent years researching the ways poor American men cope with unmarried parenting. “With our right hand we’ve pushed these men away; we’ve said, ‘You’re worthless.’ With our left hand we’re picking his pocket….That’s how it feels to him.”

Today, Edin is one of a growing number of academics and policy makers looking at struggling families in the 21st century and concluding that the child-support system needs to do better. They envision a system that would more closely link providing and parenting, and would take a more pragmatic view toward the ability of disenfranchised men to come up with money they simply don’t have, while still benefiting the children the system is designed to serve. What exactly would that look like—and what would it take to make it a reality?

If forced to choose between child-support payments and buying diapers and winter coats, many fathers will go for the option that looks more like parenting than taxation.

THE CHILD-SUPPORT SYSTEM as we know it dates to the 1970s. It was originally a bipartisan policy reform, designed primarily to serve a population of parents who were divorced and steadily employed. Divorce meant there had been a marriage in the first place, and that custody agreements had likely been worked out. Steady employment meant the system could garnish wages directly from a parent’s paycheck if necessary.

Today, however, the lives of many low-income parents look dramatically different. Marriage rates among the poor have plummeted, so there often is no divorce to provide a formal structure for parents’ responsibilities. And employment prospects for men with low education are dismal. “We have a 1970s narrative about a 2010s reality,” Edin said.

A central character in that narrative is the “deadbeat dad,” a figure who emerged in American culture in the 1980s. One moment served as a catalyst: In 1986, Bill Moyers interviewed a New Jersey father of six named Timothy McSeed for a CBS report titled “The Vanishing Family: Crisis in Black America.” McSeed bragged on camera about his “strong sperm,” and cheerfully admitted he didn’t support any of his children financially because “I’m not doing what the government does.” Editorial columnists seized on the shocking interview, and the segment went viral in a time when that meant more than a few easy clicks: Requests for the tape poured into CBS, including an order for all 7,500 schools in the California public school system. CBS News said it was the largest-ever demand for one of its products.

With this cartoonish bogeyman looming over the cultural and political landscape, the child-support system focused on collection and enforcement. Shortly afterward, Congress passed a law forcing states to be stricter about collecting past child-support debts. The approach was bolstered intellectually by a 1979 book by a University of Michigan law professor, “Making Fathers Pay,” which argued that aggressive enforcement measures, including incarceration, could corral deadbeats into complying with child-support orders. In 1996, President Clinton’s welfare reform act again strengthened the government’s enforcement powers against noncustodial parents.

There have always been, and will always be, some fathers who are not interested in fathering, and who would never help out if the law didn’t force them to. But recent research by sociologists and others who work with low-income fathers suggests that is far from typical. For their poignant 2013 book “Doing the Best I Can: Fatherhood in the Inner City,” Edin and coauthor Timothy Nelson conducted wide-ranging interviews with 110 low-income fathers in and around Philadelphia over the course of seven years. They found the majority of men were thrilled to become fathers, even though the pregnancies were rarely planned and their romantic relationships and employment situations were often unstable.

Overwhelmingly, Edin and other sociologists have reported, 21st-century fathers do intend to provide for their children. Many of them fail, in the financial sense. But what Edin found, encouragingly, is that with few opportunities to succeed financially, many have crafted new definitions of what exactly it means to be a good father: emotional availability, consistent commitment, and direct fulfillment of their children’s concrete needs and desires. As one father told Edin, “That’s what kept me going in prison, knowing that I had to come out and be there for them.” Although low-income fathers remain much less studied than mothers, other researchers have found similar enthusiasm for parenting. In her 2002 book, “My Baby’s Father: Unmarried Parents and Paternal Responsibility,” Maureen Waller, an associate professor of policy analysis and management at Cornell University, interviewed both men and women who agreed that a father’s economic support was necessary but insufficient to qualify him as a good parent.

If forced to choose between child-support payments and buying diapers and winter coats, many fathers will go for the option that looks more like parenting than taxation. That may be particularly true in cases where a mother is on welfare, because then the father’s child-support payment typically goes directly to the state, sometimes with a token amount “passed through” to the mother and child. “Dads talk about that conundrum,” said Ronald Mincy, a professor of social work at Columbia University and coauthor of the forthcoming book “Failing Our Fathers: Confronting the Crisis of Economically Vulnerable Nonresident Fathers.” “They have to choose between meeting the formal order on the one hand and meeting the child’s informal needs.” If they choose the latter, they become “deadbeats” in the eyes of the law.

Yet researchers say that both mothers and fathers tend to prefer informal agreements, all things considered. If their relationship crumbles—trust is often low to begin with—or if the father gets distracted by a new family, informal agreements can disintegrate, so the formal child-support system is a crucial safety net for mothers and children. But it’s also a system that can alienate fathers from their children, sometimes by literally putting them in jail. Even the burden of debt can be enough to drive a wedge: Waller’s ongoing research suggests that men with outstanding child-support debts have less contact and involvement with their children.

Though mothers undoubtedly have benefited from the child-support system, there’s also a case to be made that they are its victims in a way, too. Unlike parents themselves, the formal system assumes that the custodial parent is the only one with real authority. “If we give in to the notion that the mom ‘owns’ the child, if that’s the default position, then the mom is also responsible for the child,” Edin said. “Moms just end up holding the bag for everything, and men are cast out of society. That is a very bad deal for women.”

OVER THE YEARS, the child support system has improved in one measurable way: enforcement. “The reach of the child-support program, it’s stronger than the IRS in some ways,” said Jessica Pearson, who directs the Center for Policy Research and has been studying child-support policy since the 1980s. The Federal Parent Locator Service draws on national databases to track down noncustodial parents and enforce payments; in fiscal year 2013, state (and tribal) programs collected $32 billion in child support, and the amount distributed has been steadily rising for years.

That’s good news for the families who have received this money. But more than $100 billion in child-support payments are still in arrears, and research suggests that most of that is essentially uncollectible because the fathers simply do not have the money. (About a quarter of that money is owed to the government.)

Would a more enlightened system—one focused less on enforcement, and more on involvement—do a better job of keeping eager fathers involved with their children? If so, it would mean broadening the state’s approach from one that is primarily punitive to one that works with fathers, presuming that most of them want to be good parents.

Some small signs of progress seem to be on the horizon. Last month, the federal Office of Child Support Enforcement began circulating a 41-page list of proposed new regulations to modernize the child-support program. (Child support programs are administered by states, but the federal government influences state policy and how it is implemented.) The new rules would make changes like allowing states to spend federal child-support dollars on employment and training programs for fathers. Crucially, they also encourage states to take into account a man’s basic cost of living before making child-support calculations.

Scholars who work with low-income families all have their own favorite ways they would like to see the system change. Waller mentions limiting retroactive debts and revising policies on how states handle interest payments. Mincy would like to see the Earned Income Tax Credit extended more generously to noncustodial parents. Job training for fathers is another big focus: Small studies in New York and Texas have shown that if the state provides training for men who haven’t been able to pay child support, they are likelier to begin to comply. And almost everyone laments the fact that some states treat incarceration as “voluntary unemployment,” so child-support debts often balloon while men are in prison.

Experts also have ambitious ideas about how the system could help incorporate fathers into the lives of their children. Some would like to connect child-support and visitation agreements for never-married parents, the way that divorce court does. Some jurisdictions have experimented with versions of “coparenting court” to help unmarried parents negotiate a more complex agreement that covers more than just check-writing.

And language matters, too. Edin bemoans the widespread use of the term “single mother,” and the way that many government poverty programs are oriented solely around mothers and children. In fact, mothers who are truly single are vanishingly rare: In one way or another, fathers and boyfriends are almost always integral parts of the picture, and those relationships are assets we would do better to strengthen than ignore. She’d like to see researchers and policy makers adopt another phrase, one she hopes would remind us how many lives are at stake in all these arrangements. The term she prefers: “Complex fragile family.”

It’s Never Enough: Pay Child Support, You’re Still a Deadbeat

by Moody Jim Rathbone

One of the worst examples of the discrimination that men face is with child support. Canada is no exception.

A Canadian judge has called a Nova Scotia businessman and developer one of the “worst deadbeat” dads in Canadian history. The judge sentenced him to four years in prison, adding a court fine of $384,000. Gotta make sure the corporate court has a little extra owed to it. Eh?

The National Post claimed that family court judge Theresa Forgeron (obviously an offended opportunistic feminist) said Vrege Armoyan’s “defiance spanned many years.” He owes a “shameful amount of arrears” racked up in a deliberate plan to hide money and to avoid paying support for his three children, ages 20, 18 and 15. (Shouldn’t two of those be emancipated?)

In typical fashion the judge aims at your heart strings – “His children struggle to survive while Mr. Armoyan has millions of dollars.” They are starving on a mere $9000 a month in child support that they have received like a slot machine. They don’t sound too hungry to me! What do you say?

As usual, the court debt is mostly imaginary. Armoyan was originally ordered to pay $29,000 a month in child support and alimony in 2012. He never paid the full amount. As a self-employed man of business, he is one of the few to claim that right. Instead, he opted to pay $9000 a month. The total arrears is $1,714,684.04, as well as owing over $1 million in court costs. I know who isn’t going to be in Canada – ever.

Naturally, a blood-sucking lawyer was quoted as being in full agreement with the court. Lawyers depend on the good favor of the court. They kiss the ring of a judge, a legalized mobster. Surprised? So why are you paying your lawyer so much to represent you? He must be good in bed, for someone anyway.

Armoyan reportedly notified the court via email (they actually admit receiving it) that he was no longer a resident of Canada but he failed to say where he had moved. Surprise. The email source indicated that the post was sent from the Middle East.

Originally, Armoyan reportedly fled from Florida to Canada because a court had sentenced him to 60 days in jail for failing to obey a child support court order.

The greed of the ex and the court is unrivaled, supported by the attorney of ex: “My client can’t afford groceries. She can’t afford to fly here for this hearing.” Perhaps she couldn’t afford the gas money to drive her limosine either. The bottom line? $9000 wasn’t enough for anyone. They pushed the issue and lost, putting themselves through some suffering.

To me, Mr. Armoyan is a hero. First, he’s self-employed and independent. He isn’t a slave to the court or a country. He isn’t afraid to make bold choices instead of simply caving to the state and an angry and ‘entitled’ ex-wife. Apparently, mom is a terrible money manager if she can’t manage on $108,000 a year, tax-free. The 18 and 20 year “children” should be emancipated. To the uninitiated, that means “on their own.”

The judge declared that Armoyan was guilty of “contempt of court.” Neither he, nor his attorney showed at a hearing last Friday. Doubtless, the attorney wasn’t paid to show, yet, his defiance is declared by his absence (not the attorney, he’s still kissing the ring). He “strategically and tactically” avoided payment and fled the country to avoid the unbounded greed of his ex-wife and the courts. Good for him. It’s a freakin’ gravy train against men in this part of the world.

Being in the Middle East in an unknown location in an Islamic state should be protection enough. I hope he finds a better life than being constantly stressed out by courts and a nasty ex-wife. Nobody deserves that lot.

original article

 

Deadbeat Dad not even a Dad

by Charlie Mitchell

“Is it working?” That’s an easy question most of the time. Problem is, when lawmakers and regulation writers fix something broken, they rarely ask. They stick to their fix whether it works or not.

Consider the predicament of Carnell Alexander.

In 1991, Alexander, who lives in Michigan, was pulled over for a traffic violation. When police “ran” his license, an arrest warrant popped up. Nonpayment of child support. Cuffed, taken to jail.

Talk about ruining your day.

It seems an ex-girlfriend had identified him as the father of her son who was born in 1978.

He didn’t think he could be the father, so when he posted bond he decided to find her. She wasn’t at the address in any of the public records. He knew her legal name may have changed and he couldn’t afford a private investigator.

He was on his own. Eventually, they met. “Well, no,” she said (or something like that) when he asked if he had a son. The mom confessed that she had become lean of funds and applied for public benefits. The paperwork required she name the father of her child. She didn’t mean any harm, but no name, no check. She felt she had no choice. And she was sorry, by the way. Paternity tests confirmed Alexander was not the father.

Same fate could await many, many men in Mississippi.

Now, there are a more twists and turns in the facts of the Michigan case, but we’ve got enough for now.

Let’s look at this from the viewpoint of those who decided a mom could not get a check unless the name of a dad was provided.

That’s a reasonable rule, isn’t it?

Why should taxpayers subsidize clothing, food and housing for a child when a biological parent, perhaps with a fat paycheck, has danced away?

Lots of dads do. Welfare rolls could be chopped if more men would be men and meet the obligations that come with parenthood.

It was a good fix. If it worked.

Back to Alexander. The state insists it tried to serve him with court papers, but the person paid to provide the summons lied about it. He wasn’t served. (Seems to be a lot of lying in Michigan.)

When Alexander did go before a judge, most recently in February, she refused to laugh it all off and send him on his way. Instead, she ruled that because so much time had passed he might have to pay the state $30,000 for aid to a child that is not his, that he didn’t know existed for more than 10 years and is now, what, 37 years old? There’s also some discrepancy in the paperwork; perhaps at one time in some way he did agree to support the child, but likely before the paternity test ruled him out.

Slippery slopes leading to nonsensical conclusions are not at all unusual in a bureaucracy, any bureaucracy. Explosive program growth is part of this, too.

Desires to help lead to programs, programs lead to rules and then the rules need rules. The premise that a child should not go hungry is valid. The premise that parents, if able, must support their own children is valid. Rarely, however, does the machinery of government take a step back to see (1) if desired goals are being met and (2) if not, why not.

Instead, more and more rules are created and less and less efficiency results. No one understands the IRS Code. The document containing the law, rules, regulations and interpretations of federal tax law is 70,000 pages. The average Bible is 900; the U.S. Constitution could easily fit on 12. Social Security kicked off as a required pension plan with contributions returned to retirees. It was never to cost a penny of public funds, but is running deficits of about $77 billion each year.

The takeaway, of course, is that in ways large and small good ideas don’t always pan out or, said another way, fail to perform as intended.

Some legal scholars now advocate every new law at every level of governance contain an automatic repeal — forcing a review.

Not a bad idea.

But Alexander has no time for abstractions. He’s still got that $30,000 debt hanging over him. “I feel like I’m standing in front of a brick wall with nowhere to go,” he said.

Regulators may propose mandatory paternity tests going forward, but that adds time, expense, confusion expense and more complications.

Another fix to fix the fix of the fix.

A Welfare Nation Created by Broken Homes

by Marshall Frank

Insanity definition: “Doing the same thing over and over and expecting different results.”

In a perfect world, all children would grow up in secure, loving families with a mom and dad, good role models and plenty of love. Alas, the world is not perfect. And the less perfect it becomes, the worse it is for all of us, not only those who are trapped into despair, poverty and neglect.

Kids who come from broken homes are lucky to have parents who still talk to each other, who love and care for the child, and who support, educate and meet psychological needs. Too often that’s not the case. Some fathers abandon their duty-bound responsibilities. Why? Because they can.

A 2012 study of deadbeat dads, aired by CNN, indicates that $100 billion a year was owed in unpaid child support. Taxpayers pick up the tab for nearly half that amount in the form of non-reimbursed welfare. Mothers comprise 82 percent of the custodial parents in broken home situations. Child support payments represent 45 percent of their income. Single mothers with multiple kids rely mostly on welfare for total income.

Recent studies show that 1.6 million babies are born to unwed mothers every year. Among blacks, 73 percent of new babies have no father at home, leaving mothers to bear the burden. For Asians, 17 percent; Whites, 29 percent.

It’s not only about financial support. Spin-off problems can be worse. Sure, it’s important to clothe and feed children, but needs go beyond physical welfare. It is equally important to develop kids into well-adjusted youths who do not turn to the streets for negative love and attention outside the home.

Aye, there’s the rub, the unseen, unmeasured consequence of dysfunctional or abusive parenting, or no parenting at all. Psychological damage to children can ultimately cost taxpayers far more than child support checks, particularly after kids reach puberty and engage in behaviors that land them in jails, rehab centers or county morgues. Meanwhile, taxpayers must bear the costs of fighting crime and trauma, not only within the justice system, but in emergency rooms, property loss, physical loss, lost wages, victimization costs and more.

What kids from broken families seek out in the streets is what they often don’t get at home: acceptance, attention, guidance and feeling important. Thus, the substitutes. Boys enter gangs. Girls sell bodies. Kids use drugs — to belong. Any mention of morality is laughable. And we pay for it all.

Street gangs are replete with stories about mothers who had multiple kids from miscellaneous fathers who never felt the need to be part of their children’s lives. The mothers get all the help possible from Uncle Sam. Moms are better off staying unmarried because the government is a sure thing, the dads are not. It’s a vicious cycle.

When you hear about aberrant teens, violence and gangs, remember that most of these kids never had a chance from the moment they were born. Many were born of dysfunctional teens themselves, grossly unprepared for motherhood. They never learned how to parent because their parents were just as dysfunctional.

The Great Society of President Lyndon Johnson, it seems, has backfired. It was all about expanding welfare. From 1965 to 2008, according to Forbes, $16 trillion had been appropriated for welfare programs for the poor. That’s increased another $2 trillion since. Johnson may have meant to eliminate poverty, but it created a dependent society instead. When Johnson was president, more than 75 percent of black babies were born with fathers in the family. Dads stayed home to help raise kids. Not today.

Meanwhile, we continue to hear the same old drumbeat about the need for government to spread the wealth and take care of the poor. Seems that hasn’t worked very well.

I guess we must be insane.

The Federal Scheme to Destroy Father-Child Relationships

by Jake Morphonios

Congress would feign admit its own dubious contribution to the suffering of America’s children. Rather, these politicians promulgate the myth that they are helping children through federal and state welfare entitlement programs. It is, in fact, these very programs which are responsible for the out of control rampage against children. Here is how the scam works.

The federal government levies taxes against citizens to redistribute as welfare entitlements among needy applicants. Congress created the Social Security Act, a section of which is called Title IV. Title IV describes how tax dollars will be distributed among the States to subsidize their individual welfare programs. In order for States to tap into the federal treasure chest, containing billions of dollars, they must demonstrate that they are complying with Title IV mandates to collect child support revenues. In other words, to get money from the federal government, each State must become a child support collection and reporting agency.

Every unwed or single mother seeking welfare assistance must disclose on her application the identities of the fathers of her children and how much child support the fathers have been ordered by a family court to pay. She must also commit to continuously reporting the father’s payments so that the State can count the money as “collected” to the federal government’s Office of Child Support Enforcement. As with all bureaucracies, this process has developed into a monstrosity that chews up and spits out the very people it was designed to help.

States have huge financial incentives to increase the amount of child support it can report to the federal government as “collected”. To increase collection efforts, States engage in the immoral practice of dividing children from their fathers in family courts. Have you ever wondered why family courts award custody to mothers in 80%-90% of all custody cases, even when the father is determined to be just as suitable a parent? It is because the amount of child support ordered by the State is largely determined by how much time the child spends with each parent. This means that the State “collects” less child support if parents share equal custody. By prohibiting fathers from having equal custody and time with their children, the State’s child support coffers are increased and federal dollars are received.

Opponents try to paint loving fathers as “deadbeat dads” for daring to challenge the mother-take-all system of family law. This is nothing more than diversionary propaganda. The concern of fathers is not that they are unwilling to support their children financially. This is not an argument against paying child support. Any father that cares about his child will do everything in his power to provide for the child. The concern is, rather, that children are being separated from their fathers by family courts because the State stands to reap huge financial rewards as a result of the father’s loss of custody. The higher the order of child support, the more money the State can collect – even if the amount ordered by the court far exceeds the reasonable needs of the child or if the father is required to take second and third jobs to keep up with outrageous support orders and escape certain incarceration. The truth is that most fathers don’t care about the financial aspects of these family court verdicts nearly as much as they care about having their time with their children eliminated for nefarious government purposes.

The root of this evil is a State-level addiction to federal tax dollars being doled out as entitlement monies by a monolithic federal government. In the wake of this horror are millions of children drowning for lack of the care, guidance, and companionship of their fathers. Statistics and empirical evidence universally confirm that children forcibly separated from their fathers by family courts are considerably more likely to suffer anxiety and depression, develop drug addiction, engage in risky sexual activity, break the law, and commit suicide. This travesty must end.

Unconstitutional federal bureaucracy creates many of the societal ills it claims to be trying to solve. There are several steps incremental steps that could be taken to restore a child’s right to the companionship of both parents. For example, citizens should insist that States abide by the 14th Amendment to the Constitution. No father should be automatically deprived of his fundamental right to the custody of his children without due process of law. Being a male is not a crime. Absent a finding of true danger from a parent, family courts should order shared parenting rights and equal time sharing for divorcing parents. These rights are fundamental and should not be abridged. The automatic presumption of custody-to-the-mother is unconstitutional.

The history of America is brim with examples of the federal government denying basic rights to its citizens. Women were denied the right to vote until the women’s suffrage movement secured the 19th Amendment to the Constitution. Black Americans also were denied the right to vote and suffered myriad other cruel and humiliating indignities under the law until the civil rights movement brought about desegregation, put an end to Jim Crow legislation and compelled the enactment of the 15th and 24th Amendments to the Constitution. In each of these examples, society was slow to recognize that a problem even existed or that some of our laws were unjust. It took considerable time, concerted effort, self-sacrifice and perhaps even divine providence to realign concurrent societal paradigms with the principles of liberty and justice for all.

Our generation is not exempt from similar assaults on liberty. While many just causes may stake claims for redress of grievances, one group, more than any other, pleads for immediate support. The need to defend the rights of this group of American citizens, reeling from the unjust consequences of state-sponsored oppression, is before us. It is time to stand up for the rights of children and demand their equal access to both parents.

How the US Legal System Screws Poor Parents

A system full of flawed logic that winds up hurting children more than it helps them.

by Wendy Paris

Walter Scott wasn’t just a black man in America shot by a police officer; he also was a divorced father. While debate rages about excessive use of police force, his death points to another troubling practice—the incarceration of poor parents for failing to pay child-support.

For the most part, these are not “deadbeat dads”; they’re dead broke dads. Seventy percent of unpaid child support debt is owed by parents with no or low reported earnings, according to the Office of Child Support Enforcement. Their ex-wives often are poor, too. For these families, our punitive child support policies function like a de facto debtor’s prison for fathers. This, at a time when divorce, more broadly, has dramatically improved for many. While family scholars and journalists voice concern about a growing “marriage divide”—the way that marriage has become almost a luxury good attained by the “haves” and eschewed or effectively denied to the poor—a similar sorting is happening with divorce and co-parenting.

On the one hand, celebrities such as Gwyneth Paltrow seek conscious uncouplings. Upper- and middle-class couples seeking divorce in the US benefit from ever-increasing psychological, financial, and parenting resources. The law itself has improved divorce for many. New legal approaches such as mediation and collaborative counsel can make filing itself a mutually uplifting experience. These forms of “alternative dispute resolution” help adults make good decisions for everyone in the family, and steer clear of the divisive, anger-escalating spectacle of family court. Divorce can be seen as another awkward life passage, one that generates laughs, as on Bravo network’s new show The Girlfriend’s Guide to Divorce.

But if a family finds itself in court, the system seems stacked against the poor. “Many states have two systems, one for married parents and one for poor people/welfare cases that are funneled through ‘paternity dockets’ where they barely get to say a word,” says Daniel Hatcher, a professor of law at the University of Baltimore and a prolific researcher of and advocate for child support reform. “It’s a tribunal that’s just about child-support and paternity. It’s crowded. Judges are jaded. They face huge case loads.” As the trend toward unmarried parenting continues, especially among the poor, these paternity dockets look to grow even more crowded, meting out rushed decisions to more families.

While in court, a non-custodial parent, usually the father, may have a chance to explain to a busy judge his financial situation—perhaps he’s unemployed and worried about falling behind on rent. In many states, the judge can decide that this father could be earning minimum wage, impute that income to him, and set a custody amount he must pay the mother of his child as a percentage of his potential (that is to say, fictitious) earnings.

Maybe this obligation pushes him to scramble for a job. Perhaps it takes a few months. All the while, the child support debt has been accumulating. Now he has the monthly obligation plus back payment. (This is where the Bradley Amendment kicks in.) Some states terminate parental rights or throw a parent in jail or prison for back child support, or “non-compliance” with court orders. In South Carolina, the court can order the noncompliant father to appear to explain his delinquency, charge him $1,500 in the process, and jail him for up to a year. South Carolina is hardly an outlier. In Texas, a parent can be incarcerated even after he’s paid back his child support debt. (Texas is infamous for overcrowded courts, too. In one court in Harris County, Texas, a court master decided 500 paternity and child support cases in one day.)

Now the father is in jail; for some, like Scott, incarceration means the end of that great (or not so great) job. While in jail or prison, child support debt continues to mount in many states, some of which consider incarceration “voluntary unemployment.” In some states, you can apply for a child support modification while behind bars, but many parents do not know about this option, may find the process confusing, and may not realize their child support debt continues. Studies from a few states show that on average, a parent with a child support case enters jail or prison about $10,000 behind; he leaves owning more like $30,000. This debt is unlikely ever to be paid. The national child-support debt is more than $115 billion.

In South Carolina, if the non-custodial parent accumulates $500 in back child support while unemployed, the state can suspend or revoke his driver’s license as punishment. Say our unemployed father is a truck driver. Without his license, he’s lost his ability to work, and probably his sense of autonomy as an adult, and his willingness to cooperate with a system that’s working against him. As Scott’s brother Rodney told the New York Times, “Every job he has had, he has gotten fired from because he went to jail because he was locked up for child support. He got to the point where he felt like it defeated the purpose.”

Incarceration also prevents a parent from spending time with his children. Research from a variety of areas shows that when the non-custodial parent spends time with his children, he’s more likely to pay child support. Forty years of research on child development shows that children benefit from having a good relationship with both parents, or parent-type figures. Incarceration yanks a parent right out of a child’s life.

If a custodial parent—usually the mother—seeks Temporary Assistance to Needy Families (TANF, the program that replaced welfare) or food stamps, both parents are treated like bad children. The mother is required to name the father, establish paternity, and sue the father in court for support, even if they have an in-kind arrangement that’s working. The pursuit of child support can destroy relationships. The money, if he has it, often goes back to the state for supporting the brood, not to his children. Meanwhile, the dads who can’t pay may find themselves in jail or prison, unable to help mom in other ways, such as picking up the kids from school or throwing a ball around on weekends.

The logic flaw baffles the mind, and hurts the heart, especially since about half of the nation’s back child support is owed to the government. In many states, child support collected in the name of the custodial parent receiving government aid does not go to that parent. It goes to the government instead, to pay for the cost of the food stamps of TANF. “The idea is that if we’re supporting this mom, we should be able to go after the dad to recoup this cost,” says Hatcher. “The guidelines don’t really work for these welfare cases at all. Most policy is driven by discussion about cases where both parents are working, middle class families on up; you plug in both parents’ income and then transfer to the custodial parent. That doesn’t make any sense when the money goes to the government.”

How have we arrived at these anti-family policies?

In the 1980s and ‘90s, the notion of the “deadbeat dad” loomed large in the public conscious, in part because of one spectacularly flawed and widely-cited study—since retracted by its own author—that purported to show divorced mothers subsisting at a third of their former standard of living, while the fathers lived better than ever. For many custodial parents, child support is the road out of poverty. Much child support went uncollected, and enforcement policies were changed to improve the situation. Some policies worked; the Office of Child Support Enforcement today still publishes reports showing continued gains in money collected. Threat of jail was considered a good motivator for delinquent dads, and it may be in some cases.

When it comes to the poor, however, these policies can create more harm than good. Maybe some fathers refuse to pay out of spite, while some mothers actively want their children’s father behind bars, if he’s violent, for example. But as research from a variety of areas shows, most of these poor families are fragile relationships, perhaps begun while very young, both people harboring hope for a future of stability and cooperation, even reconciliation or romance.

Old ideology probably contributes to our current policies as well—a view of faltering families that’s about as enlightened as something out of The Scarlet Letter. In England, Elizabethan Poor Laws of 1601 authorized towns to sue fathers of unwed mothers to reimburse them for assistance provided to their children. Early “bastardy acts” allowed colonies to incarcerate pregnant unwed mothers to protect the state from the financial burden of the child. Today’s laws are not as different as you’d expect. Lurking underneath lies an entrenched view that fathers are the lazy enemies of their own families, and poor mothers, in some way brought this on themselves. (You see this kind of view in the comments section of a recent piece in Concurring Opinions by law professors Naomi Cahn and June Carbone on the child support link in the Walter Scott affair.)

Some of the resources benefitting middle and upper-class divorcing couples help the poor, too. Technology, for example, allows those across the economic spectrum to read about their state’s laws online and access forms without shelling out for a lawyer. Courthouses around the country now have staffed self-help centers to guide pro se litigants (a.k.a. the do-it-yourself divorcees) through the paperwork. Increasingly, lawyers offer “unbundled” services, a consultation on an hourly basis. Most states have parenting classes and workshops for divorcing parents. Surveys show, and casual conversation confirms, wide satisfaction with these workshops.

But unmarried parents as a group get fewer resources, and if one parent sues the other in court, the kind of Orwellian child support laws that dogged Walter Scott kick in across the states. The overarching principle is the best interest of the child (a legal myth), but this aim gets subverted in policies that hurt the whole family.

There are solutions, the most promising of which take a problem-solving, rather than punitive approach. In Virginia, child support enforcement workers have begun reaching out to employers to find work for non-compliers, rather than more jail time. The state also has retooled its child support guidelines and begun launching programs aimed at helping poor fathers improve job-hunting and parenting skills. Some states have experimented with assessing child support only if a non-custodial parent has a minimum reserve of income. States, including California and Ohio, have passed statutes requiring the exercise of discretion rather than automatically referring certain child welfare cases to child support enforcement services.

In Maryland, Hatcher has worked on legislation to allow the state to automatically disable child support arrears during incarceration. This reform passed, but is not widely enforced. Hatcher notes that one stumbling block to reform is poor communication between child support enforcement and the criminal justice system.

This problem of poor communication—long the dominion of marriage counselors—is one I’ve seen repeatedly in my own research on divorce. I’d assumed that bad divorces result from a dearth of good ideas, but found instead that there are creative, humane solutions coming from a variety of states and various disciplines— and abysmal communication of them. In divorce, as in marriage, good communication may be the best way to suture a gap.

The Answer to US Child Support: Give Them An Ankle Bracelet

from the Desoto Times Tribune by Robert Lee Long

A father thrown in jail for child support is unable to work to pay that debt and often loses his job. It’s a vicious cycle that is repeated time and time again. A recent New York Times article highlighted the issue of fathers who fall behind on child support, only to be incarcerated and unable to work, falling further and further behind in catching up.

For DeSoto County Jail Administrator Chad Wicker, the problem hits close to home. As a child of divorced parents, Wicker witnessed the problem firsthand. When his father fell behind in making child support payments, his mother could not collect on back child support because he lived in Texas. (Who knows how long ago this was? The Bradley Amendment is never discussed in these articles.)

States do not have reciprocal agreements to detain or arrest so-called “deadbeat dads” for overdue child support, according to Wicker.

“The problem with the dads who owe back child support is they keep coming back time and time again,” Wicker said. “We have some guys in custody who owe $70,000 or $80,000 and they are never in a position to pay it off.”

Ex-spouses of so-called “dead-beat dads” are also at a disadvantage. “Many times, the state does not get involved unless the mother is on government assistance,” Wicker said. “She can hire a private attorney or a private investigator to help her, but 99 percent of the time when a father who owes back child support gets arrested it’s because the state has a compelling interest in its litigation.”

Wicker said at the DeSoto County jail, men who have been arrested and jailed for owing back child support comprise 5 percent of the total jail inmate population but make up 40 percent of the jail’s non-violent offenders who are incarcerated.

“We usually keep between 10 to 20 in custody at any given time and for instance, today (Friday) we had a jail inmate population of 306,” Wicker said, adding 62 inmates were released Thursday following court-imposed adjudications of their sentences. According to Wicker, it costs $49.37 cents a day to house and feed an inmate.

Men who owe back child support quickly fill up beds in the jail once they again fall behind, according to Wicker. “Typically what happens is that you can go to jail if you are $2,000 behind,” Wicker said. “When you pay $400 a month, it doesn’t take long to get further behind if you get arrested and put in jail.”

Though jail is considered an effective incentive for parents who are able to pay, critics say punitive policies do not work for those who are poor, as the New York Times article points out.

A case in point was the South Carolina man, Walter L. Scott, an African-American man who was pulled over for a broken tail light by a white Charleston, S.C. police officer. It was discovered by the police officer that Scott owed more than $18,000 in back child support and was likely headed back to jail. Scott bolted and ran and was shot in the back several times as he fled by the police officer, an event which touched off riots and protests in several American cities.

According to Sarah Geraghty, who was quoted in the New York Times article on the subject, poor people are often jailed over and over again in greater numbers for back child support in disproportionate numbers than those who have an ability to pay. “Parents who are truly destitute go to jail over and over again for child support debt simply because they are poor,” Geraghty was quoted in the New York Times article as saying.

According to the New York Times, a 2007 Urban Institute study of child support debt in nine large states found that 70 percent of people in arrears were “owed by people who reported less than $10,000 a year in income.”

In Scott’s case, he spent two weeks in jail and lost his $35,000-a-year job at a filmmaking company, in addition to sending him into an emotional and psychological spiral. Scott is now dead and obviously unable to pay not only any debt to his second wife and their children but any supposed debt to society.

DeSoto County Sheriff Bill Rasco said he would like to see these incarcerated fathers out working than taking up badly needed jail beds in his facility. “If they have a job, I would like to see them on an ankle bracelet and keep them on the job,” Rasco said. “It would help them and their families and help us keep our numbers down. If they lose their job, they’ll never catch up.”

———-

It’s bad enough to be labeled a ‘deadbeat’ or actually be dead, but the US has become so legally radicalized that ‘authorities’ believe that ankle bracelets are an answer, as if jail has ever been an answer. Coercion and fear are obviously what this is about, not about any pretense at a solution. It all about corporation exploitation by the state.  Imagine – the US considers itself superior in the battle for ‘human rights.’ Fathers are little more than a paycheck, and that’s the way the state likes it. Surely, the founding fathers of this nation would turn over in their graves, that is, if they were able. – MJR

Skip Child Support. Go to Jail. Lose Job. Repeat.

by Framces Robles and Shaila Dewan

By his own telling, the first time Walter L. Scott went to jail for failure to pay child support, it sent his life into a tailspin. He lost what he called “the best job I ever had” when he spent two weeks in jail. Some years he paid. More recently, he had not. Two years ago, when his debt reached nearly $8,000 and he missed a court date, a warrant was issued for his arrest. By last month, the amount had more than doubled, to just over $18,000.

That warrant, his family now speculates, loomed large in Mr. Scott’s death. On April 4, he was pulled over for a broken taillight, fled on foot and, after a scuffle with a police officer, was fatally shot in the back.

The warrant, the threat of another stay behind bars and the potential loss of yet another job caused him to run, a brother, Rodney Scott, said.

“Every job he has had, he has gotten fired from because he went to jail because he was locked up for child support,” said Mr. Scott, whose brother was working as a forklift operator when he died. “He got to the point where he felt like it defeated the purpose.”

Walter Scott’s death has focused attention not just on police violence, but also on the use of jail to pressure parents to pay child support, a policy employed by many states today. Though the threat of jail is considered an effective incentive for people who are able but unwilling to pay, many critics assert that punitive policies are trapping poor men in a cycle of debt, unemployment and imprisonment.

The problem begins with child support orders that, at the outset, can exceed parents’ ability to pay. When parents fall short, the authorities escalate collection efforts, withholding up to 65 percent of a paycheck, seizing bank deposits and tax refunds, suspending driver’s licenses and professional licenses, and then imposing jail time.

“Parents who are truly destitute go to jail over and over again for child support debt simply because they’re poor,” said Sarah Geraghty, a lawyer with the Southern Center for Human Rights, which filed a class-action lawsuit in Georgia on behalf of parents incarcerated without legal representation for failure to pay. “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 in the county jail.”

There is no national count of how many parents are incarcerated for failure to pay child support, and enforcement tactics vary from state to state, as do policies such as whether parents facing jail are given court-appointed lawyers. But in 2009, a survey in South Carolina found that one in eight inmates had been jailed for failure to pay child support. In Georgia, 3,500 parents were jailed in 2010. The Record of Hackensack, N.J., reported last year that 1,800 parents had been jailed or given ankle monitors in two New Jersey counties in 2013. (The majority of noncustodial parents nationwide are men.)

Unpaid child support became a big concern in the 1980s and ’90s as public hostility grew toward the archetypal “deadbeat dad” who lived comfortably while his children suffered. Child support collections were so spotty that in the late 1990s, new enforcement tools such as automatic paycheck deductions were used. As a result, child support collections increased significantly, and some parents rely heavily on aggressive enforcement by the authorities.

But experts said problems could arise when such tactics were used against people who had little money, and the vast majority of unpaid child support is owed by the very poor. A 2007 Urban Institute study of child support debt in nine large states found that 70 percent of the arrears were owed by people who reported less than $10,000 a year in income. They were expected to pay, on average, 83 percent of their income in child support — a percentage that declined precipitously in higher income brackets.

In many jurisdictions, support orders are based not on the parent’s actual income but on “imputed income” — what they would be expected to earn if they had a full-time, minimum wage or median wage job. In South Carolina, the unemployment rate for black men is 12 percent.

The Obama administration is trying to change some of these policies, proposing to rewrite enforcement rules to require that child support orders be based on actual income and consider the “subsistence needs” of the noncustodial parent, to bar states from allowing child support debt to accrue while parents are incarcerated and to finance more job placement services for them.

“While every parent has a responsibility to support their kids to the best of their ability, the tools developed in the 1990s are designed for people who have money,” said Vicki Turetsky, the commissioner of the federal Office of Child Support Enforcement. “Jail is appropriate for someone who is actively hiding assets, not appropriate for someone who couldn’t pay the order in the first place.”

Under a 2011 Supreme Court ruling, courts are not supposed to jail a defendant without a specific finding that he or she has the ability to pay. But that process does not always work as intended, especially when the client does not have a lawyer, advocates for the poor say.

In the Georgia class-action case, the plaintiffs were jailed in civil contempt-of-court proceedings in which they did not have lawyers. They included three veterans — one who had paid $75,000 in child support but fell behind when he lost his civilian job because of combat-related stress and family deaths; a second who was mentally ill and had a letter from a Veterans Affairs doctor saying he was unable to work; and a third who was incarcerated despite having paid $3,796 toward his debt by working odd jobs.

But the Georgia Supreme Court ruled against them, saying they did not have a categorical right to a lawyer.

Walter Scott

Walter Scott had four children, two in the early 1990s outside of marriage, and two in the late 1990s with a woman to whom he was married. The marriage crumbled when one of the children was still a toddler, and Lisa Scott, his estranged wife, began writing letters to family court asking for help.

“My husband bears no responsibility for his family,” she wrote in 2000.

In an article about a parenting program published in The Post and Courier of Charleston in 2003, Mr. Scott said that he had fallen behind when the checks he sent to a state agency for his ex-wife were mistakenly directed to the mother of his first children. (The South Carolina Department of Social Services, citing privacy laws, said it could not verify his account.)

Mr. Scott eventually spent two weeks in jail — a stint that cost him a $35,000-a-year job at a filmmaking company and sent him into isolation and alcohol abuse, he told The Post and Courier.

“I got mad at everybody in the whole world because I just lost the best job I ever had,” he said. “I just stopped doing everything.”

In 2002, Mr. Scott, further behind on his payments, agreed to participate in a parenting program called Father to Father and pay $350 a month. Mr. Scott reunited with his family, turned himself in for the unpaid child support and served another five months in jail.

Still, Charleston County Family Court records show that he remained in a cycle of unpaid child support debt, stints in jail and more threats of time behind bars. The records also show that when Mr. Scott was working in 2011, $125.76 was deducted from his check each week. He paid $11,411 that year, which included a lump-sum payment. But he was behind again in July 2012, and he paid $3,500, his last recorded payment, to avoid jail. The money came from his parents, Mr. Scott’s brother Rodney said.

Rodney Scott said his brother resented that his ex-wife was not required to work and that the pressure was always on him to pay support. Critics of the child support system say this imbalance is reflected in rules that say that if a mother receives public assistance, the father must pay it back, even if he is also poor. In many cases, though not in Mr. Scott’s, child support actions are brought by state officials seeking welfare reimbursement.

Lisa Scott could not be reached at addresses or phone numbers listed in her name. Samantha Scott, a daughter from Mr. Scott’s first relationship, said she had never heard her own mother complain about a lack of support. “If he had money, he would give it to us,” she said.

Ms. Turetsky, the head of the federal child support office, said the system should be based on the expectation that both parents would contribute toward their children’s needs. “It’s nuts,” she said of the policy of making destitute fathers repay welfare. “She gets the assistance; he gets charged with the bill.”

Jahmal Holmes, 28, is a current participant in the Father to Father program in North Charleston. He has two children, 4 and 8, and said he had agreed to court-ordered child support because he had been told that it was a requirement for their mother to receive Medicaid. The two have since broken up and share custody of the younger child, but he is still required to pay support for both.

Mr. Holmes said he did not realize that if he fell behind on payments, he would face jail. “I am behind now, and they are threatening to suspend my driver’s license — and I’m a truck driver,” he said. “When I saw that Walter Scott died, and he was in this program, that touched me emotionally. I see myself trying to get out of that situation.”

Rodney Scott said that he sometimes thought his brother did not do everything he could to catch up, but that Walter seemed to consider it a hopeless cause. He recalled seeing his brother plead to a judge that he just did not make enough money.

“He asked the judge, ‘How am I supposed to live?’ ” Mr. Scott said. “And the judge said something like, ‘That’s your problem. You figure it out.’ ”

Rethinking Child Support Policy Toward Low-income Noncustodial Fathers and Their Families

by Tonya L. Brito

Since September 2005, Michael Turner has been incarcerated on six different occasions for nonpayment of child support. His prison terms total over three years in jail. He currently owes over $20,000 in unpaid child support, and while he remains in prison on his current sentence, he will accumulate even more debt that he is unable to pay. After his release, South Carolina’s automated case processing machinery will issue another order to show cause. At the hearing the court will ask Turner why he should not again be held in contempt because of his failure to pay the outstanding arrearage. Absent an unforeseen circumstance that bestows $20,000 on Turner making it possible for him to pay off the arrears, it is virtually certain that he will be civilly incarcerated for the seventh time and that this cycle will continue.

Turner’s experience with the child support system is all too common. Other poor noncustodial fathers report similar dystopian experiences. A noncustodial father who participated in a research study focus group explained:

I’m just tired of getting locked up every so often, every eight months or so. I don’t have no bad record, no record at all. But I keep getting locked up for child support, that’s the main thing.”

In South Carolina, where Michael Turner was incarcerated, child support obligors imprisoned for civil contempt comprise approximately thirteen to sixteen percent of the jail population. It seems a pointless expenditure of state resources to repeatedly arrest poor fathers, jail them for nonpayment of child support, then later release them (when either the law requires their release or the court eventually concludes that civil incarceration is not succeeding in coercing compliance with child support orders), and repeat the cycle all over again.

Few would imagine that the child support system views as consistent with its mission the practice of repeated civil incarcerations of fathers like Michael Turner, whose indigence prevents them from paying their crushing child support debts. Indeed, Turner’s jail terms undoubtedly do far more to hinder his efforts to find stable employment than they do to provide economic security to his children. However, across the United States, destitute noncustodial parents are incarcerated for failing to meet child support obligations they have no means to pay. The end result is that indigent child support debtors fill jails across the country.

Although child support law and policy is targeted at so-called deadbeat dads who have the ability to pay but choose not to, the prison door continues to revolve for poor noncustodial fathers who are unable to pay. Inflexible application of child support collection and enforcement measures designed to ensure that child support payments are automatic and inescapable, no matter the circumstances, lead to this devastating phenomenon when applied to the chronically poor. Although effective in securing payments from noncustodial parents with the means to pay, the impact of these reforms on no- and low-income noncustodial parents and their families has been disproportionate and destructive.

Today, noncustodial parents who live in poverty owe the vast majority of child support owed in the United States. These parents lack the means to pay their child support debt, yet they experience the full panoply of enforcement measures, including civil incarceration for nonpayment of support. Ironically, low-income noncustodial parents who lack the ability to pay their child support debts are more likely to face incarceration than are the more culpable noncustodial parents who have the means to pay child support but refuse to pay. This is because other routine and less severe enforcement measures, such as wage garnishment, are effective in securing support from those with the means to pay.

Furthermore, poor noncustodial fathers lack the resources to hire lawyers to represent them in their contempt proceedings and press their defense of inability to comply with court orders. When states charge indigent fathers criminally for failure to pay child support, courts appoint counsel for the fathers. However, because states may seek to enforce delinquent child support orders through civil contempt rather than criminal charges, many indigent fathers do not receive appointed counsel. In Turner v. Rogers, Michael Turner argued that South Carolina’s denial of his request for appointed counsel in a nonpayment civil contempt proceeding with the possibility of incarceration violated the U.S. Constitution. Although the Supreme Court held that South Carolina’s procedures did not satisfy the Due Process Clause, the Court refused to find that indigent obligors categorically have a constitutional right to counsel in civil contempt proceedings in child support cases, even when there is a possibility of incarceration. In the absence of a right to counsel, it is almost certain that no- and low-income child support obligors will not be able to effectively assert the defense of inability to comply and will continue to be improperly incarcerated.

This Article highlights Michael Turner’s experience with the child support system to illuminate the experience of thousands of poor fathers exactly like him. Rather than the due process and right to counsel questions addressed in Turner v. Rogers, this Article presents other, more foundational and difficult problems that were not litigated in Turner’s Supreme Court case. Part II provides an overview of the historical development of the federal-state child support program and its interrelationship with the public welfare system. It demonstrates how the governmental interest in welfare cost recoupment has influenced public policy and law surrounding child support enforcement and further traces the changes that have strengthened the private child support system while reducing poor families’ reliance on government cash assistance.

Part III explores the systemic policies and practices of the child support system that operate to create a revolving prison door for no- and low-income fathers who are under an order of child support. Part III then reviews the empirical evidence regarding the economic status and employment capabilities of disadvantaged fathers. It further chronicles their experience with the child support system, from the establishment of unrealistically high child support orders to the accumulation of onerous arrearages and ultimately, the application of punitive and unwarranted enforcement measures (including imprisonment). In concluding, Part III argues that this approach to secure child support payments from disadvantaged noncustodial fathers has not only been largely ineffective but has also produced unintended consequences that run counter to the goal of improving the economic well-being of poor children.

Part IV proposes a novel approach to child support enforcement in poor families. It contemplates a change in program priorities such that the goal of providing economic support to poor children is made paramount, even if this shift is made at the expense of pursuing the dual (and often conflicting) goal of welfare cost recoupment. With this enhanced commitment to children’s economic needs in mind, Part IV presents a multi-pronged alternative scheme for child support. First, the scheme proposes reforms to the child support system to ensure that disadvantaged fathers’ child support orders realistically reflect their income potential and capacity to pay. Second, the scheme provides for significant government investments in effective capacity building strategies, including education, job training, and other work-related supports, so that disadvantaged fathers are better able to meet their child support responsibilities. Part IV recognizes that implementing the first two prongs of this proposal may not succeed in achieving the goal of securing sufficient private support for poor children. Given the intractable systemic barriers to secure employment that disadvantaged fathers experience and their particular vulnerability to broader economic downturns, Part IV also imagines a more robust public-private sharing of financial responsibility for poor children. Under this vision, private support of poor children would be complemented by, rather than substituted for, public support. More specifically, Part IV proposes a system that provides resources to children and their families so that, coupled with private family resources, the children are guaranteed a minimum level of economic security. This public benefit would operate to ensure a child support floor so that, paired with court-ordered child support payments, the funds would lift poor single mothers and their children above the poverty threshold.

II. Child Support, Public Welfare, and the Shift from Public to Private Responsibility for Poor Children’s Economic Needs

The federal child support program originates in, and is historically linked to, the public welfare system. Indeed, the passage of the first federal law in this area, the Child Support Act of 1974, was prompted by concerns about sharp increases in government welfare expenditures on behalf of poor women and their children. As part of the Social Security Act of 1935, Congress established the federal welfare system, Aid to Dependent Children (later renamed Aid to Families with Dependent Children, or AFDC), a means-tested cash assistance program. AFDC was modeled on the then existing Mothers’ Pension welfare programs, which states established between 1910 and 1920. At that time, advocates for government aid for poor mothers and children championed the value of mothering and argued that mothers would best serve their children’s well-being by caring for them in their own homes. These advocates urged that without government aid to poor mothers and children, family destitution would result, causing institutionalization of children in orphanages, child neglect due to maternal employment outside the home, or the children themselves working long hours in factories alongside their mothers. Like Mothers’ Pensions, AFDC provided small cash benefits to poor single mothers. However, eligibility was broadened under AFDC. While Mothers’ Pensions were primarily reserved for widows, mothers qualified for AFDC assistance if the family lacked a male wage earner because of death, desertion, or incapacity.

In practice, however, local welfare officials did not base their eligibility determinations under AFDC solely on applicants’ economic needs. From the 1940s through the early 1960s, applying morals means tests, caseworkers limited welfare caseloads by ensuring that only the most deserving mothers received benefits. States defined eligibility criteria narrowly, and applying suitable home, man in the house, and substitute father rules, AFDC caseworkers exercised considerable discretion, by subjecting applicants and recipients of AFDC benefits to intrusive and judgmental supervision of their parenting, morals, and home environment. Nonmarital cohabitation and childbirth were among the most common restrictions, and caseworkers conducted surprise visits to welfare recipients’ homes in the middle of the night in order to find out if there was a man in the house. Termination or reduction of benefits was often the penalty when caseworkers determined that mothers violated these rules.

The 1960s brought an end to these exclusionary practices. Challenges by activists and lawyers succeeded in dismantling the arbitrary barriers to welfare access. Welfare became a statutory right, and welfare agencies applied a uniform means test to determine applicants’ eligibility for benefits. Welfare caseloads quickly soared, and in a ten-year period (from 1961 to 1971), the number of recipients increased threefold (from 3.5 million to 11 million). The expanded rolls of welfare recipients included so many Black single mothers that by 1961 the AFDC program, which had been eighty-nine percent White in 1939, became forty-four percent Black. Another significant demographic shift in the welfare population was the marital status of recipients. Whereas the majority of recipients previously were widowed mothers, by 1961, widowed mothers made up less than eight percent of the welfare caseload, and instead, the typical recipient was more likely to be divorced, separated, or never married.

Increased welfare costs resulting from the tremendous growth in caseloads as well as the shifting demographics of recipients drew public attention, and politicians made calls for reform. Critics viewed the exponential increase in welfare expenditures as problematic, particularly because public monies were being provided to unworthy single mothers. Also, because recipients were more likely to be divorced or never married than in years past, policymakers began to view absent fathers as the individuals ultimately responsible for the increase in welfare costs and looked to them as a potential source of economic support for the families. Congress’s desire to reduce AFDC costs motivated its interest in increasing support from fathers.

The federal government thus ventured into the arena of child support with the passage of the Child Support Enforcement Act of 1974, which established the Office of Child Support Enforcement (OCSE) and mandated the creation of state-level counterparts administered in compliance with specific federal guidelines. Importantly, the Act required that custodial AFDC parents assign to the state their rights to collect child support payments and that the funds collected on behalf of AFDC families be used to reimburse the government for welfare benefits paid to the families. If AFDC families did not have a support order in place, they were required to cooperate with states’ efforts to establish support orders by, among other things, identifying putative fathers in cases of nonmarital births. Additionally, states used all child support collected on behalf of AFDC families to reimburse the government for the cost of welfare expenditures. Consequently, for AFDC families, whether the noncustodial parents paid child support did not matter, because their financial situation remained the same either way.

Amendments to the Child Support Act in 1984 and 1988 further expanded the Act’s scope. The amendments allowed non-welfare families use of state child support offices’ services and required states to strengthen paternity establishment, create and utilize child support guidelines in setting orders, and implement wage withholding to increase collections. Moreover, the 1984 enactment established a distribution scheme for child support collected on behalf of AFDC families. Specifically, families received the first fifty dollars of child support collected, and the federal and state governments shared any remaining funds necessary to reimburse themselves for welfare benefits paid to the families. The purpose of this change in the law, referred to as a pass through of current child support collected, was to incentivize parental cooperation with the child support system while continuing the practice of offsetting welfare expenditures.

Despite the efforts of these wide-ranging provisions, improvements in child support enforcement were only modest, and collections overall were insufficient. In light of these deficiencies, calls for reform of the child support system intensified and arose alongside a broader debate concerning overhaul of the federal welfare system. Unlike other aspects of welfare reform, members of both political parties enthusiastically joined the crusade to crack down on delinquent fathers. Although both parties supported the idea of tougher child support enforcement, conservatives and liberals had different goals in mind. Conservatives emphasized the need to get tough on absent fathers by requiring them to live up to their financial responsibilities to their children. Liberals and moderates, on the other hand, tended to emphasize the goal of utilizing child support to enhance the financial well-being of low-income single-parent households.

Much public attention was focused on the economic plight of single-mother families and the failure of absent fathers to provide for their children. The figures were sobering. Nearly half of all single mothers and their children lived in poverty, and about the same number relied on welfare to make ends meet. They received almost no financial assistance from noncustodial fathers. Most fathers did not pay any child support whatsoever, and for those who did, the amounts were meager. Even more troubling was data regarding child support receipt in single-parent households. In 1994, as the public, policymakers, and Congress debated competing proposals for welfare reform, only twelve and one-half percent of single-parent families receiving welfare were also receiving child support. Advocates for reform, including liberals, conservatives, and even some feminists, believed that the availability of child support from noncustodial fathers would raise some families above the poverty threshold.

Against this backdrop, the child support reforms of 1996 were propelled by widespread societal hostility toward deadbeat dads, a term that was applied indiscriminately to all noncustodial fathers who were delinquent on their payments. The public viewed nonpaying fathers as men who could afford to pay child support but flagrantly chose not to pay, depriving their children of desperately needed economic support. Political leaders contributed to the heated rhetoric. Days before signing the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), President Clinton, who pledged to end welfare as we know it, threatened deadbeat dads that the government would be relentless in its pursuit of them for past due child support. He warned: [I] f you owe child support, you better pay it. If you deliberately refuse to pay it, you can find your face posted in the Post Office. We’ll track you down with computers . . . . We’ll track you down with law enforcement. We’ll find you through the Internet. State agencies followed through on these threats and went so far as to post wanted ads of fathers who failed to support their children. Subsequent media coverage of deadbeat dads fueled public outrage, particularly because the popular image conveyed was that of a father who enjoyed an affluent standard of living yet shirked his child support obligation while his children lived in abject poverty.

In 1996, Congress passed sweeping reforms of the federal welfare and child support enforcement systems. The new welfare law, PRWORA, ended AFDC and replaced it with Temporary Assistance to Needy Families (TANF), a federal block grant program. TANF abolished the entitlement to benefits under AFDC, imposed strict work requirements on recipients in exchange for government assistance, established time limits on receipt of welfare benefits, and required states to sanction those who did not engage in work or work-related activities. The reforms imposing a time limit on receipt of benefits and eliminating the entitlement status of welfare benefits heightened the importance of child support as a supplemental economic resource for TANF families.

The unmistakable message underlying PRWORA was that poor mothers must go to work to support their children. To achieve the welfare-to-work goal, the law provided short-term cash benefits, employment-related services to address the labor market barriers that poor mothers experienced, and supports to enhance the likelihood that mothers would succeed in the workplace. The practical effect of these changes in welfare law was that poor children and their families could no longer rely on a long-term cash benefit.

Today, the government safety net is a system of supports focused on helping poor custodial parents (primarily mothers) find and maintain jobs. The system includes services that help individuals find paid work (such as job placement assistance, job training, and subsidized work experiences) and supports that subsidize low-wage employment (such as child care assistance, food stamps, and the Earned Income Tax Credit (EITC)). The rationale for the expanded income security measures was an effort to make work pay, so that single mothers leaving welfare for work would be better off financially than those who remained on welfare. For low-wage custodial mothers, packaging post-tax, post-transfer income with other non-cash government benefits and regular child support payments greatly enhanced their ability to provide for their children.

The child support enforcement amendments in PRWORA were as extensive and far-reaching as the welfare reforms. Indeed, when President Clinton signed PRWORA, he stated: For a lot of women and children, . . . the only reason they’re on welfare today–the only reason–is that the father up and walked away when he could have made a contribution to the welfare of the children. The primary purpose of these reforms was to improve the operation of child support systems so that those systems could collect more money from noncustodial fathers to assist single mothers in the process of moving from welfare to work. The reforms also advanced the goal of welfare cost recovery: the government practice of seeking reimbursement of welfare costs through child support enforcement. Central features of the law included enhanced procedures for establishing paternity in nonmarital births, implementation of a national directory of newly hired employees that child support agencies could use to locate non-payers, and streamlined administrative procedures. Additionally, PRWORA gave states more discretion regarding how to allocate child support payments received on behalf of TANF families, no longer mandating that states pass through the first fifty dollars per month of payments to recipient families directly.

Another significant systemic change in PRWORA was the implementation of mass case processing in lieu of judicial and quasi-judicial individualized proceedings. The enforcement system has been described as follows:

If we do not know where a father is, policymakers can find him in one of many available databases. If we do not know which man is the father of a particular child, administrative agencies can order DNA tests. Formulas spit out order awards, and remote computers assess award levels. Support is deducted from individuals’ paychecks before they even know it was there to begin with. And money is sent back to the recipient families, so that housing, food, and utility bills can all be paid on time.

Overall, the child support system became more automated and, particularly with respect to enforcement methods, more stringent and punitive. As some described it at the time, [t] he vision for child support enforcement that guided legislative development is that support payments should be automatic and inescapable.

This image of non-payers as deadbeats was fairly applied to the many well-to-do fathers whose children were suffering economically, but it did not take account of the twenty-six percent of noncustodial fathers who were themselves poor. When Congress enacted the welfare law, it was known that a number of child support obligors were so poor that they fell below the poverty threshold. When considering the reform proposals, policymakers and the media gave little thought to fathers with limited means to meet their child support obligations or how to help them meet their financial obligations to their children.

Poor noncustodial fathers, characterized by some researchers as either deadbroke or as turnips, have limited abilities to provide economic support to their children. One empirical study found that twenty-three percent of noncustodial fathers are indeed unable nonpayers. About thirty percent of poor fathers who do not pay child support are incarcerated and the remainder experience some or all of the following barriers to employment: limited education, limited work experience, health problems, transportation barriers, and/or housing instability. The researchers’ conclusion–that it would be futile to pursue child support payments from these impoverished fathers –has been borne out. In other words, [noncustodial] fathers are rarely poor and paying child support (3 percent). Rather than providing assistance to attain job skills and employment so that these men are better able to pay support, unnecessarily harsh child support laws place the poorest fathers in an economically untenable position by setting child support orders at levels that exceed their capacity to pay and then later punishing them for shirking their responsibilities when they are inevitably delinquent.

III. Child Support Enforcement and Low-Income Fathers

This Part explores the experiences of no- and low-income fathers within the child support system. In brief, although poor fathers are expected to pay support (and very often at levels that are high relative to their earnings), collections from this population remain low. Low collections persist despite states’ employing aggressive and punitive enforcement strategies. This Part closely explores each aspect of this phenomenon. The analysis begins with the mechanism for establishing and modifying child support orders. It pays particular attention to guidelines governing low-income families and the application, in practice, of those guidelines to disadvantaged fathers. This Part next looks at the facts and figures concerning child support collections from poor fathers, examining not only to what extent they pay support, but also their capacities to pay given their actual earnings and opportunities for labor force participation. This Part next examines state enforcement strategies and their impact, and it finds that the child support system’s systemic policies and practices operate to create a revolving prison door for many disadvantaged noncustodial fathers. This Part concludes by arguing that the prevailing approach to securing child support payments has been largely ineffective at improving the economic well-being of poor children, and further, that many of the existing policies and practices work to undermine achievement of that goal.

A. Establishing Child Support Orders for Low-Income Fathers

Reforms to the child support system have resulted in ever-larger numbers of noncustodial parents under orders of support. The number of child support orders that states have established increased from 315,000 in 1978 to 1,100,000 in 2000. This trend continued during the last decade, with the number of child support orders increasing to 1,297,020 in 2010. This development is consistent with the widely held view and expectation that all parents, including poor parents, should contribute to the support of their children. Child support laws purport to treat all noncustodial parents alike in terms of holding them financially responsible for their children, and there is no exception that categorically excuses low-income fathers from this obligation.

State child support guidelines base the amount of the child support award on the noncustodial parent’s income (or the parent’s proportionate share of both parents’ income). Pursuant to the Child Support Enforcement Amendments of 1984, Congress required states to adopt statewide guidelines for establishing child support. Initially the guidelines were advisory; however, under the Family Support Act of 1988, the guidelines became mandatory and presumptively applied to all child support orders. Congress intended the numeric guidelines to promote consistent child support orders among families with similar circumstances and to reduce judicial discretion leading to disparate orders. The guidelines are intended to simplify the process of determining child support and to make outcomes more predictable. The guidelines operate as a rebuttable presumption, and should circumstances warrant, judges may deviate from the prescribed formula.

Each state may develop its own child support formula, but two formulas are most prevalent: the percentage-of-income formula and the income-shares formula. The percentage-of-income model is based on the child support guidelines enacted in Wisconsin. Under this framework, only the noncustodial parent’s income is considered when calculating the support order. States that use the percentage-of-income model may either require the obligor to pay a flat percentage of income or apply a varying percentage based on both the obligor’s income and the number and age of children the obligor supports. For example, under Wisconsin’s formula, noncustodial parents are required to pay seventeen percent of their gross income in child support for one child. The child support order increases to twenty-five percent for two children, twenty-nine percent for three children, thirty-one percent for four children, and thirty-four percent for five or more children. With this model, only the noncustodial parent’s income is directly factored into the child support calculation. Embodied in the percentage-of-income formula is a presumption that the custodial parent is contributing an appropriate amount through the ordinary course of parenting.

The income-shares model, by contrast, factors in the incomes of both the custodial and noncustodial parent. The formula first calculates the combined income of both parents and then estimates the amount spent on children by multiplying the parents’ total income by a percentage that varies with income and number of children. Once the total support amount is determined, each parent’s child support responsibility is determined by distributing the support amount between them based on his or her proportional share of the total parental income.

Because child support calculations are based on the income of the noncustodial parent, a low income would presumably yield a similarly low child support obligation. Indeed, recognizing the precarious economic situation of poor noncustodial parents, most state child support guidelines include alternative provisions for low-income payers. With respect to low-income payers, state guidelines take a variety of approaches. Under one approach, typically applied in situations in which the payer falls below the poverty threshold, the guidelines set a presumptive (and rebuttable) award of fifty dollars per month for each child. Under a similar approach, the guidelines do not establish a presumptive child support amount and leave the amount to judicial discretion. With both of these models, the guidelines provide discretionary decision-making, thus permitting a consideration of all relevant factors and determinations on a case-by-case basis.

Some states, like Wisconsin, have established special child support schedules that apply only to low-income cases. Wisconsin’s Low-Income Payer rule takes a graduated approach to determining child support obligations for payers whose incomes fall between seventy-five percent and one-hundred-fifty percent of the federal poverty guidelines. Within that income range, the percentage rates in the formula gradually increase as income increases. For example, assuming a child support order for one child, the obligor whose income is at seventy-five percent of the federal poverty guidelines would have an order set at 11.11% of his gross income. The guidelines apply gradually increasing percentages to gross income (to calculate the child support owed) until the full 17% of gross income formula is used to establish an order for those obligors with gross monthly incomes that equal one-hundred-fifty percent of the federal poverty guideline. In the case of obligors with income below seventy-five percent of the federal poverty guideline, courts have discretion in setting orders. Wisconsin guidelines provide that the court may set an order at an amount appropriate for the payer’s total economic circumstances.

Another approach to establishing child support orders for low-income payers is to set a minimum order (usually falling somewhere between twenty and fifty dollars). Because the minimum child support order is for a flat amount and cannot be adjusted downward regardless of the level of actual earnings, it is a higher percentage of income for those obligors with the lowest incomes than under a graduated approach. Even in cases where it is undisputed that the noncustodial father is unemployed and earns no salary, a minimum order may be set. Incarcerated fathers, in particular, have been negatively impacted where minimum orders are set and the fathers lack opportunities to earn wages. This practice reflects the policy views that no parents, even very poor parents, should be excused from the legal obligation to support their children and that establishing an award will encourage fathers to make every effort to comply with their support obligations. Unfortunately, this practice results in poor fathers becoming even more impoverished when courts order them to pay support in amounts greater than they can afford.

Finally, the self-support reserve is an approach used in a number of states. It operates to set aside a portion of a payer’s income to cover minimal, basic living expenses. The child support award is then calculated based on the remaining income. This approach allows low-income noncustodial parents to retain a portion of their income so that they may maintain at least a subsistence level of living.

Unfortunately, the existence of alternative low-income parent rules does not solve the dilemma of determining the appropriate level of child support to order in cases involving indigent fathers. In practice, the amount of child support that courts actually order no- and low-income fathers to pay often bears no relationship to their actual incomes and far exceeds their abilities to pay. This mismatch between award amounts and low-income fathers’ financial means results from several systemic practices, including: establishing default orders, courts imputing income when setting support orders, adding additional costs that the state incurred before the initial child support order was established, and courts failing to modify existing orders downward when circumstances warrant.

1. Default Orders and Imputed Income

The child support guidelines states use to set awards base child support on parents’ earned incomes. Often, however, courts establish the child support order for no- and low-income fathers based on imputed earnings rather than actual earnings. The rationale underlying child support imputation of income regulations is that imputation addresses situations where obligors either underreport their incomes or are intentionally underemployed. In imputing income to noncustodial fathers, courts make assumptions about how much the fathers earn or should earn. Generally, a court imputes to the obligor the ability to earn minimum wage and assumes a full-time, forty-hour week, which overestimates the income of low-income parents who lack stable employment and often work fewer than forty hours per week.

Courts typically impute income and enters a default order when a noncustodial father does not appear for his child support hearing. Many disadvantaged fathers are not even aware of the initial proceedings and fail to appear in court because, due to their poverty and insecure living arrangements, they do not receive a copy of their summons. If they fail to appear, courts enter default paternity establishments and child support orders.

Fathers who receive actual notice may, nonetheless, fail to appear at their court hearings. In a number of qualitative empirical studies, Professor David Pate interviewed low-income noncustodial fathers about their experiences with the child support system. The studies show that disadvantaged fathers fail to participate in child support proceedings for a number of reasons. First, some fathers complained about the negative reception they perceived in the Milwaukee courthouse because they were viewed as deadbeat dads. Second, they do not appreciate the consequences (the entry of default orders and significant financial obligations) of failing to appear at their court hearings.

The establishment of child support orders by default is widespread and contributes to the problem of large arrearages. For example, in 2000, 70 percent of the noncustodial parents with arrears [in California] had their awards established by default. Even when an obligor appears for his proceeding and has valid defenses to the imputation of income, without attorney representation, it is very unlikely that he will be effective in providing evidence about his income and inability to pay.

The practice of setting minimum child support orders and/or default orders can, particularly in the case of very low- and no-income fathers, leads to an overestimation of the actual income of low- and no-income fathers who are unemployed or underemployed, working intermittently or on a part-time basis. Consequently, the resulting child support order is high relative to the fathers’ actual incomes. This further causes the build-up of onerous child support debt, which further burdens disadvantaged fathers.

2. Retroactive Support Orders and Debt

On top of inflated orders resulting from imputed income and minimum awards, fathers of children receiving welfare are often required to reimburse states for additional welfare costs the states incurred before courts established the initial child support orders. Many states charge . . . arrearages . . . immediately with the imposition of retroactive child support that dates as far back as the birth of the child in some states, or in others, to the beginning of welfare receipt. Additionally, courts may require fathers to reimburse the costs of welfare benefits previously paid to their families. Courts may add Medicaid childbirth costs to initial orders as well. Other add-ons include fees for paternity testing, litigation costs, interest on the arrearages owed, and penalties for not paying.

As a result, at the time court sets an order, the order is front-loaded with welfare costs (sometimes in the thousands of dollars) that the court retroactively imposes on noncustodial fathers. Coupled with imputed earnings, these practices result in child support orders that often exceed fifty percent of reported earnings among low-income fathers and burden them with unmanageable child support arrearages from the outset.

3. Failure To Modify Child Support Orders

Poor noncustodial fathers are also unlikely to have courts adjust their child support orders downward to reflect detrimental changes in their financial circumstances, such as job loss or decreased earnings. State child support guidelines allow parents to seek modification of their child support orders upon a showing that there has been substantial change in their circumstances that warrants adjustment. The obligor’s involuntary unemployment or underemployment typically qualifies as the type of substantial change in circumstances that justifies a decrease in the amount of the child support order. On the other hand, downward modifications in child support orders are not available to obligors who attempt to shirk their parental responsibilities by intentionally reducing their earnings. Thus, courts reject requests for child support modifications if there is evidence that the noncustodial parent is voluntarily unemployed (or underemployed).

Although the employment status of low-income noncustodial fathers is often unstable and precarious, courts typically do not modify child support orders to reflect reduced earnings. Even though child support laws specifically allow for such adjustments, numerous problems limit the implementation of the rule. Poor fathers lack access to counsel who could seek modification on their behalf when their earnings decline. They are also unlikely to file pro se petitions in courts for downward modification. A recent study examining the experience of low-income families with the child support system revealed that many poor fathers lacked awareness of the child support system and related court processes, so much so that they did not know that they could seek a downward modification of their child support orders or what steps to follow to obtain reductions in the awards.

Incarcerated fathers, in particular, are unlikely to secure modifications, even though they earn little or nothing during their periods of confinement. There is not one consistent approach among states concerning how to address child support obligations and accumulated debt of imprisoned fathers. The divergent state practices reflect competing policy views regarding whether incarceration is voluntary unemployment. One group of states treats incarceration as voluntary unemployment and refuses to grant prisoners’ requests to modify child support. This approach reflects the policy view that it would be tantamount to rewarding a parent’s criminal behavior if a court took into account the parent’s incarceration when calculating his or her child support obligation.

Other states’ approaches include either treating incarceration as a factor to take into account when considering modification requests or having a categorical rule that allows for suspension of child support obligations during the periods of confinement. These alternative rules, which more directly tie child support payments to the earning capacities of noncustodial parents, reflect a more realistic approach to the economic condition of imprisoned obligors. Further, states that employ this approach recognize that if incarcerated parents accumulate staggering child support debts during their confinement, they will likely be less inclined to comply with their child support orders or otherwise be involved with their children when released from prison. Even in states where incarceration may be a permissible basis for modification, it is nevertheless unlikely that child support orders will be reduced. The parent must still make a formal, legal request for a modification. Because many low-income fathers do not make these requests, their incarcerations lead to further build-up of their child support debts.

Generally, poor and/or incarcerated fathers cannot look to state child support offices to update their orders when circumstances warrant. This barrier exists even though the 2005 Deficit Reduction Act requires that state agencies review and adjust all support orders for TANF families on a triennial basis. Despite the law, there is a small likelihood that state agencies will pursue the adjustment of orders. A recent study found that child support orders are generally not responsive to changes in noncustodial parents’ earnings. Although sixty percent of child support orders examined in the study met the requirements for modification, only eight percent of those child support orders were modified. The authors of the study reflected that given the large number of noncustodial fathers who experienced a significant change in income, it would be administratively challenging for child support agencies to adjust all of the eligible orders. The child support system does not have administrative processes in place to promptly respond to frequent job changes (and losses) with corresponding changes to child support orders.

Further, where downward modifications of child support awards are concerned, states’ fiscal interests are diametrically opposed to the economic interests of noncustodial fathers whose children receive welfare benefits. States have an incentive not to update orders when fathers’ incomes decrease because such updates result in potential revenue losses for states. Empirical data assessing modification practices in several states confirm that child support offices tend not to pursue modifications in cases where child support orders would be reduced.

B. Low-Income Fathers’ Child Support Payments: Figures and Realities

Practices regarding establishing and modifying child support orders do not realistically take account of the large number of noncustodial parents who are as poor as the custodial parents and children with whom they are associated. Most fathers who do not pay child support are poor and unable to find jobs that would enable them to pay. About twenty-six percent of noncustodial fathers (about 2.8 million) are poor, and the vast majority of this group (approximately eighty-eight percent) does not pay any child support. These fathers earn an average of $5627 annually. One study found that only one-quarter of noncustodial fathers with incomes less than one-hundred-thirty percent of the poverty line worked full-time year round, and their average income was only $6989 (just above the $6800 poverty level for a single adult).

Another study found that sixty percent of poor fathers who do not pay child support are racial and ethnic minorities, and twenty-nine percent were institutionalized (mostly in prison) at the time of interview. Only forty-three percent of men not in prison were working, and those employed in 1996 worked an average of just twenty-nine weeks and earned $5627 that year. Their barriers to employment were also considerable: forty-three percent were high-school dropouts, thirty-nine percent had health problems, and thirty-two percent had not worked in three years. Overall, job prospects are not promising for men with already weak attachments to the labor force and other significant barriers to employment.

Given the dire employment and economic status of poor noncustodial fathers, it is not particularly surprising that child support collections from this population remain low. The OCSE has confirmed that the poorest children (i.e., those receiving government welfare payments) receive a small portion of child support collected overall. In 2010, families receiving public assistance accounted for fourteen percent of the caseload of the Child Support Enforcement Program; however, they represented only four percent of the cases for which child support was collected. In 2010, these children only received one-tenth as much child support collected through the enforcement system as did non-poor children (i.e., children whose families have never received public assistance). Additionally, the poorest children generally do not receive the full amount of child support they are owed. Among custodial parents with formal child support orders in place, only about thirty-five percent of parents who were never married, thirty-three percent who were Black, and thirty-six percent who were living in poverty, received the full amount of child support courts award.

The low rate of child support collections for poor children from their equally poor fathers has not changed significantly over time, nor has the child support enforcement program been successful in accomplishing its goal of reducing child poverty through enhanced collections from noncustodial parents. Indeed, there are more children living below the poverty line today than in 1975, the year in which Congress created the federal child support program. In 1975, seventeen percent of children in the United States lived below the poverty line. In 2010, twenty-two percent did.

Rather than succeeding in reducing child poverty, aggressive enforcement practices directed at poor families instead produce large unpaid child support debts. No- and low-income parents are responsible for the greatest portion of unpaid child support, according to the OCSE. Of the more than $70 billion in child support debt nationally, noncustodial parents who have no quarterly earnings or earn less than $10,000 annually owe seventy percent of all arrears owed to the government as reimbursement for welfare expenditures. A small number of child support obligors (eleven percent) owe a majority of the arrearages, and they each owe over $30,000 in debt. Yet, they are among the poorest obligors. Twenty-nine percent of child support debtors earn between $1 and $10,000, and thirty-four percent have no reported earnings. Noncustodial parents with more than $40,000 in annual income hold only four percent of child support arrears. The problem is nationwide; child support caseloads in every state include very low-income fathers who have accumulated enormous arrearages and who have virtually no prospect of ever satisfying the debt.

C. Enforcing Child Support Orders Against Low-Income Fathers

With the collection rate so low, it is important to examine the enforcement efforts the child support system employs. The child support system has developed a broad arsenal of enforcement strategies to ensure that noncustodial parents pay child support that is owed. According to the OCSE, their automated enforcement tools are very effective when applied to the parents comprising their caseloads who are regularly employed or have assets. Automatic withholding of child support payments from employer payroll accounts for two-thirds of all child support collections. Child support is also secured from able nonpayers through a range of alternative mechanisms, such as intercepting federal and state income tax refunds, seizing bank account balances, restricting or revoking drivers’, occupational, and professional licenses, and placing liens on properties. Because of these automated systems of collection, many fathers who may have been inclined to evade their child support obligations no longer have the option to do so. Thus, willingness to comply with a support order is a much less salient factor influencing collections. Put another way, an employed father is very likely to pay child support whether he chooses to or not.

However, these conventional collection methods are not effective in collecting past due child support from noncustodial parents who lack stable, consistent employment and financial assets. Indeed, utilizing these less severe sanctions with dead broke noncustodial parents would be futile. Wage assignment will not work if the parent is unemployed. Intercepting tax refunds will not work if the parent is not due a tax refund. Seizing bank balances will not work if the parent does not have assets squirreled away in an account. Denying a passport will not work if the parent lacks the resources to travel outside the country. Having failed to collect support by these traditional methods, the child support system inevitably turned to more aggressive enforcement measures when pursuing collections from indigent parents. Although Congress implemented such tools to collect unpaid support from deadbeat dads, it is low-income parents who most likely face the threat of incarceration through the civil contempt process. Consequently, the most severe child support enforcement sanctions tend to have the greatest impact on men on the bottom of the income distribution who are the least able to meet their child support obligations.

The extent to which noncustodial parents in the United States are jailed for failure to pay child support has not been extensively studied. The Center for Family Policy and Practice (CFFPP), which has been studying the challenges and barriers faced by low-income fathers since 1995, has completed the most work in this area. CFFPP examined the intersection of child support and incarceration (civil contempt and criminal charges for nonpayment of child support) in several studies. CFFPP found that in most states there were reports of civil contempt arrests and incarcerations for nonpayment of child support. Notably, civil contempt arrests and incarcerations outnumber criminal nonsupport arrests in many jurisdictions. Some jurisdictions, such as Marion County, Indiana, find civil enforcement more efficient than criminal enforcement. In that county, it is reported that out of 80,000 to 100,000 open child support cases each year, about 3%, or 2,400 to 3,300, result in incarceration for nonpayment. Roughly 15-20 of these are criminal charges, and the rest are civil contempt. CFFPP’s studies examining data at the local level in Wisconsin confirmed that the most aggressive child support enforcement policies tend to have the greatest impact on the poorest parents who are unable to pay. The study revealed that in Madison and Milwaukee there is a higher rate of arrests for nonpayment of child support for low-income minority parents than for other parents. This is the case even though in Wisconsin, as in other states, inability to pay is a defense to civil contempt. Other researchers have raised similar concerns about the demographics of delinquent parents incarcerated for failure to pay support.

More recently, the Institute for Research on Poverty (IRP) commenced a study of child support and incarceration, focusing on Wisconsin’s use of both civil contempt and criminal nonsupport enforcement tools. The first report issued as part of this research project revealed that researchers’ efforts to document the prevalence of incarceration for failure to pay child support in Wisconsin were unsuccessful. Child support agencies do not routinely report data on the use of arrest and incarceration as an enforcement tool. In Wisconsin, existing case tracking systems, county child support offices, and other state agencies involved in child support enforcement do not systematically keep track of the extent to which the use of civil contempt processes result in incarceration of delinquent parents. Researchers’ efforts to ascertain the information by examining sheriffs’ offices’ and House of Corrections’ data sources were similarly unavailing. Further, although child support office personnel indicated to researchers that it would be fairly straightforward to determine figures for cases that they referred to district attorneys for criminal nonsupport charges, researchers encountered numerous challenges with the relevant data sources. Consequently, IRP’s exploration of available data sources regarding incarceration has not yet yielded information regarding either how often these enforcement tools result in the incarceration of delinquent parents or the demographic characteristics of the noncustodial parents most likely to be incarcerated.

Although figures regarding prevalence were not forthcoming, IRP researchers examined the reported local practices associated with the use of civil contempt processes and criminal nonsupport charges as enforcement tools. They found that, although the counties actively employ civil contempt as an enforcement tool, whether doing so will lead to a finding of contempt varies tremendously both across and within counties in Wisconsin. Many factors are at play, including existing child support agency practices, individual caseworker discretion, differences in the predisposition of county courts and family court commissioners to find civil contempt, and differing law enforcement practices.

County child support offices approach the use of civil contempt differently. One county treats contempt as a last resort measure to employ if other enforcement methods fail, while another county, which does not see civil contempt as the most severe method of encouraging compliance, utilizes it earlier in the enforcement process as a wake-up call to impress upon noncustodial parents the gravity of the situation. Caseworker discretion figures prominently in the extent to which civil contempt is used, even in counties that employ written guidelines. While caseworkers generally make case-by-case determinations after examining the individual circumstances of each case, personal preference influences whether an individual caseworker uses civil contempt. Officials that researchers interviewed pointed out that some [case] workers are more willing than others to invest the time to work with a delinquent payer prior to beginning civil contempt proceedings.

Family court commissioners’ approaches to civil contempt proceedings also factor into whether courts find obligors in contempt. Agency officials reported that some courts employ a higher burden of proof than others and that purge conditions vary. Judicial findings regarding whether the lack of payment is willful similarly result from case-by-case determinations by family court commissioners, who enjoy substantial judicial discretion in making such rulings. Finally, with respect to law enforcement practices, the report found that some counties proactively enforce bench warrants associated with child support, while in other counties, incarceration pursuant to a warrant takes place only when a delinquent obligor has an interaction with law enforcement for some other reason.

According to child support officials, they utilize criminal nonsupport charges as a child support enforcement tool much less frequently than civil contempt; in Wisconsin, however, empirical data regarding the prevalence of the use of this enforcement tool is lacking. Representatives from prosecutor’s offices in two counties (Dane and Racine) reported making referrals fewer than ten times per year, while representatives in Milwaukee County reported making seventy to one hundred referrals per year. As with civil contempt, referral making varies from county to county within Wisconsin. Where the child support agency did not pursue criminal nonsupport, staff explained that they preferred civil contempt because it is more efficient and more likely to provoke compliance with a child support order. By contrast, counties that bring criminal nonsupport charges against delinquent payers tend to have more personnel and resources available for this purpose.

D. Questioning the Efficacy of the Prevailing Approach

The poorest noncustodial parents are the most likely to face incarceration for nonpayment through the civil contempt process, even though lawmakers enacted such harsh enforcement measures with deadbeat dads in mind. The accumulation of unrealistic and excessive child support debts results, in large part, from subjecting impoverished noncustodial parents to an automatic and inescapable child support system that has reimbursement of welfare benefits as its primary focus and far too often does not account for parents’ inabilities to pay. The low-income noncustodial parent who lacks attorney representation experiences the child support system as a virtually unstoppable chain of events that inevitably leads to unfathomable levels of debt that he or she has no hope of ever paying off.

While civil contempt for nonpayment is an efficient and justifiable tool for able-to-pay parents, when child support agencies apply this practice to all noncustodial parents regardless of their ability to pay, primarily poor parents end up in jail. For a destitute person, civil contempt is an inappropriate remedy to secure payment of a child support obligation: the party cannot be coerced into paying child support that instant because they have no funds to pay it. Under such circumstances, incarcerating destitute child support debtors serves no purpose at all. Because the goal of civil contempt is to coerce compliance with a court’s order, the justification for imprisonment is lost when compliance is impossible.

The goal of recouping welfare expenditures incentivizes states to aggressively pursue child support collections from the very poorest parents, rather than from middle- or upper-income parents, who do not have children in the welfare caseload. For these poor fathers, it is virtually inevitable that they will experience the full brunt of the child support enforcement system, including penalties, sanctions, and potentially even incarceration. Yet, even with the government’s enhanced, automated, and stringent enforcement tools in operation, noncustodial parents still owe over $110 billion to state child support systems as recoupment of welfare cash assistance provided to their children. The staggering amount of child support arrears confirms that child support payments, standing alone, are insufficient to meet the needs of poor children. Given the dismal collection rate of arrears, one must question the efficacy of the current child support system in achieving its stated goals of reducing child poverty and reimbursing the state for welfare expenditures. Moreover, recent studies reveal that, in some circumstances, child support enforcement may hinder collections rather than enhance them.

For example, one recent empirical study determined that aggressive child support measures not only fail to lead to the collection of more support, but mothers living under strong enforcement regimes may actually be worse off than those living in weak regimes. Researchers concluded that when child support agencies utilized formal enforcement measures against noncustodial fathers who voluntarily contributed informal cash and in-kind support to custodial mothers, the contributions ceased and tended not to be replaced by equivalent levels of formal cash support. Moreover, there is evidence that states’ aggressive and relentless pursuit of child support pushes some poor noncustodial fathers of children receiving public benefits to seek genetic testing and disestablishment of paternity in order to be freed from the duty to pay child support. The resulting unintended consequence is that some children become legally fatherless and lose the economic support and nurturing provided by their (non-biological) fathers.

Another recent study focused on the impact of child support enforcement on the labor force behavior of young Black men and concluded that child support enforcement negatively affects labor force activity for this demographic group, especially those between the ages of twenty-five and thirty-four. As noted, for this population, child support orders are high relative to income (typically in the range of twenty to thirty-five percent of income). And when child support is combined with regular taxation, obligors can experience an effective tax rate as high as sixty to eighty percent. When poor noncustodial fathers fail to pay support (as often happens), the enforcement mechanisms are triggered, and through wage garnishment, the child support system takes up to sixty-five percent of the parent’s net income to satisfy the child support debt.

Incarcerating indigent noncustodial fathers also undermines child support program goals. Most fundamentally, few obligors generate income while incarcerated, and incarceration may negatively impact their employment prospects upon release. It is well-documented that ex-offenders have limited employment opportunities and that employers are much less likely to hire Black men with criminal records than they are to hire similarly situated White men. A prison record not only erodes job opportunities because of employer aversion, it also disqualifies ex-offenders from some skilled and licensed occupations. And even when they do find work, noncustodial parents with criminal records earn significantly less than they did prior to their incarceration. Thus imprisonment further prevents noncustodial fathers from paying their required support.

Moreover, both the practice of aggressive child support enforcement and the prospect of imprisonment for nonpayment push some indigent parents to participate in underground employment. In one qualitative study, low-income fathers who lack the financial means to pay their support orders have said they faced the choice between generating income in the underground economy or being caught by the child support enforcement and, possibly, imprisoned. Underground employment, which includes self-employment, off-the-books and under-the-table jobs, and illegal activities, such as selling drugs and selling stolen merchandise, provides earnings that are easily hidden from the child support system. Fathers who engage in underground employment enjoy a greater degree of payment discretion because the automated and routine enforcement mechanisms are less effective for obligors who work outside the formal employment sector. Incarceration for nonpayment can have similar effects, driving poor fathers into the underground economy, thereby reducing the amount of income available to children through child support payments and undermining the intended purpose of stronger enforcement.

IV. Rethinking the Child Support System’s Approach to Low-Income Fathers

Addressing the problems this Article identified earlier entails a rethinking of the child support system’s approach to low-income fathers and their families. Because many difficulties are linked to states’ practices of privileging welfare cost recoupment over the economic well-being of poor children, the goal of providing economic support to poor children must be paramount. A stronger focus on children’s economic needs invites reconsideration of many existing practices, such as the amount of child support paid by noncustodial parents that the state will pass through to families receiving welfare benefits rather than retain for reimbursement purposes; the requirement that welfare applicants assign their rights to collect past-due child support to states; and states’ efforts to collect, from noncustodial fathers, Medicaid costs associated with a nonmarital birth.

A state’s interest in recouping welfare expenditures is in tension with the goal of improving the economic well-being of children living in poverty. As noted, custodial parents receiving TANF are required to assign their rights to collect child support to states as reimbursement for welfare benefits. Because most states use the entire monthly support payment to recoup welfare expenditures, the child support collected does not enhance the family’s living standard. About one-third of states pass through fifty dollars of collected child support to children’s families. In 2004, states collected approximately $635 million in child support on behalf of TANF families and distributed about 27 percent of it to TANF families, keeping the rest to reimburse the federal and state governments for welfare costs. States could give families on welfare all the child support they collect through the assignment process. Doing so would remove many more families from poverty. Even fathers who later reunite with their families are not shielded from state efforts to collect child support. In these cases, the child welfare system pursues child support from low-income fathers who reside with their children in intact families, thus reducing the economic resources available to the families and privileging recoupment of state welfare expenditures.

Although reform in this area would likely lead to reduction in reimbursement revenue for the child support enforcement system, reform may nonetheless have a positive fiscal impact on poor families. Child support payments would inure to the economic benefit of disadvantaged children rather than states. While such a move might not be politically popular across the board because of its potential to reduce state revenue, some have argued convincingly that it is unreasonable to expect the child support system to self-finance its operations.

With this enhanced commitment to children’s economic needs in mind, Part IV presents a multi-pronged alternative scheme for child support that falls into three distinct areas: corrections, investments, and shared responsibility. First, it proposes a system of corrections (or reforms) to the child support system that makes the financial obligations imposed on disadvantaged fathers more realistically reflect individual fathers’ income potential. Second, significant government investment in effective capacity building strategies is needed so that disadvantaged fathers are better able to meet their child support responsibilities. At a minimum, progress should be made on both these fronts in order to address the economic needs of poor children and their families.

There are no guarantees, however, and implementing the first two prongs of this proposal may not succeed in achieving the goal of maximizing private support for poor children. The systemic barriers to securing employment that disadvantaged fathers (and mothers) experience are long-standing, intractable, and hard to surmount. The experiences of single-mother households that have left the TANF-caseload (i.e., welfare leavers) demonstrate the tremendous difficulty and fragility of even modest upward mobility from the lowest rungs of the socioeconomic ladder. Even more sobering are the consistent findings from decades of research involving disadvantaged men that confirm that, after completing a transitional (subsidized) job program, these men do not generally locate unsubsidized employment that pays a higher salary. Simply put, long-term gains in employment and earnings have been elusive for this population, and they are especially vulnerable to losing ground during economic downturns. Consequently, a more robust public-private sharing of financial responsibility for poor children ought to be a part of any reform. Private support of poor children thus would be complemented by, rather than substituted for, public support.

The time to reform the child support system is long overdue. The reforms envisioned can be characterized more as a series of corrections, an attempt to redress the harmful, unintended consequences of prior reforms that swung too far in the direction of punishing so-called deadbeat dads. The prior reforms failed to take account of the appropriateness and potential impact of such harsh measures on disadvantaged fathers and their families–and did so at the expense of accomplishing child support program goals. Indeed, there is growing recognition that, as applied to low-income parents, the child support system is not functioning effectively because collections are low, arrearages are excessively large, and poor children remain in poverty. The Commissioner of the OCSE acknowledges that, for disadvantaged populations, the growing body of research suggests that reduced orders and debt balances can improve employment and child support outcomes. The proposed reforms are thus directed primarily at setting realistic child support orders at the outset and implementing mechanisms to forgive (or compromise) existing onerous and un-payable child support debts.

The elimination or reduction of large child support debts is an important first step. There is growing acknowledgement in the field that, as a practical matter, low-income fathers will never be able to pay the enormous child support debts they have accumulated and that, as a consequence, the very existence of the debt can discourage some fathers from even trying to repay it. Indeed, the federal Office of Child Support Enforcement recently reissued a policy statement clearly stating that states have the authority to compromise unpaid welfare arrears owed to the government. The federal government permits states to compromise child support arrearages when the debt is owed to the state. Some state and localities are taking a close look at the large arrearages that have built up for low-income fathers. The methods used to manage uncollectible arrears include amnesty (debt forgiveness) programs for arrearages owed to states and the automatic suspension of orders when fathers are in jail or participating in job programs. So far, however, movement on this front has been piecemeal, and a more systematic and comprehensive effort is needed.

Furthermore, there is growing recognition that the arrearage problem is best handled through prevention. States are thus reconsidering the practice of routinely imputing income, setting large retroactive orders based on welfare debt and other costs that bear no relationship to fathers’ abilities to pay, and keeping orders current by implementing procedures to facilitate prompt review and adjustment of orders when appropriate. As with arrearages, additional efforts must be made in order to have a meaningful impact.

First, it is essential that the federal OCSE mandate (and state child support agencies implement) realistic and appropriate child support policies in cases involving low- and no-income noncustodial parents. This approach will, in part, require that child support personnel, at both the order setting and enforcement phase, assess the noncustodial parent’s ability and willingness to pay. Determining ability to pay will necessarily require an individualized, fact-based determination that takes into account a number of relevant factors. The assessment would consider such factors as the obligor’s past work history, job skills, level of education, criminal record (if any), physical and mental health, and past efforts to secure employment or job training. A track record of compliance with child support obligations would also be relevant when evaluating willingness to pay. Assessment of willingness to pay should also consider the existence (or lack thereof) of employment opportunities in the obligor’s community for job seekers with similar qualifications and characteristics. Such inquiries would no doubt provide the child support system (and individual caseworkers) with a better understanding of low-income fathers’ economic predicaments and the efforts they resort to in order to survive economically. As noted previously, many low-income nonpaying fathers exhibit multiple barriers to steady employment. An assumption that all nonpaying fathers are deadbeats is inequitable and unjust, especially in light of the current recession and historically high unemployment rate, particularly for low-skilled workers.

Another area of proposed reform emphasizes capacity building to enhance poor noncustodial parents’ labor market prospects so that they are better able to meet their economic duties to their children. The federal government now urges state child support programs to examine the underlying reasons fathers are not paying child support and to provide job-related support and services to poor fathers to help them meet their support obligations. There is widespread understanding that many low-income fathers who want to pay support are unable to simply because of obstacles to full participation in the labor market. Just as in the case of disadvantaged custodial mothers, similarly situated poor noncustodial fathers need a work-focused state safety net that helps to enable them to work and pay child support. Government assistance and social programs today are almost universally either predicated on participation in the formal labor market or restricted to low-income children and their custodial parents; because disadvantaged men are only tenuously attached to the labor market and tend to be noncustodial parents, they are ineligible for most income security programs. Thus, child support enforcement efforts must be coupled with measures designed to improve the employment prospects and overall financial security of poor fathers. Research showing a strong correlation between child support compliance and ability to pay supports this approach. Also, steady employment in the formal labor market enhances the efficacy of the enforcement system, which largely relies on routine and automated systems to target parents through their connections to the formal employment system.

This approach is reflected in President Obama’s agenda for strengthening families, the Fatherhood, Marriage and Family Innovation Fund. The proposal, included in the Administration’s fiscal year 2011 budget proposal, would establish a new $500 million fund to provide grants to states to conduct and evaluate comprehensive responsible fatherhood initiatives and comprehensive demonstrations to improve child and family outcomes in low-income families with serious barriers to self-sufficiency. While state- and local-level pilot programs providing comprehensive employment and other supportive services to low-income noncustodial parents exist, the Obama Administration’s Fatherhood, Marriage and Family Innovation Fund would be the first such federal program.

The advantages of providing services to low-income fathers to assist them in their efforts to find and retain stable employment far outweigh resulting negative impacts to the child support system. Some might argue that the costs of the additional employment-related services would be prohibitive. Certainly, the child support system’s functions will expand significantly. Its core duties, which today focus primarily on establishing and enforcing child support orders, would also include services designed to aid noncustodial parents in finding work and meeting their support obligations. Child support agencies or service providers in local communities would provide services in areas such as job readiness, job training, and job placement. Under this system, more caseworker time and attention would be expended assessing a low-income parent’s ability and willingness to provide support. Conducting fact-based inquiries of all relevant information on a case-by-case basis is likely to be more time consuming and labor intensive than the current automated enforcement system, which is largely reliant on mass case processing. Because mass case processing is accomplished through computerized and automated systems, it relies less on the efforts of individual child support agency staff. By contrast, when a child-support staff member determines a noncustodial father’s job readiness (or the package of services to eliminate barriers to employment), he or she will likely conduct a structured interview with the individual and possibly also utilize a range of specialized tools and assessment measures.

This approach will be more equitable and cost-effective as well (with potential fiscal gains to states from a reduction in unwarranted civil incarcerations offsetting any additional costs associated with individualized determinations). Michael Turner, for example, was incarcerated on numerous occasions for nonpayment of support, even though he was unemployed and lacked the ability to satisfy his debt. Some of Turner’s jail sentences lasted for as long as a year. Not only did jailing him not succeed in coercing compliance with his child support order, it also imposed significant costs on the State of South Carolina. In light of the fact that thirteen to sixteen percent of South Carolina’s jail population is comprised of child support obligors imprisoned for civil contempt, ample savings would be realized by ceasing the current practice of jailing poor parents who are unable to pay child support. Although empirical information regarding the national scope of this phenomenon is limited, and the limitations of existing data sources have presented challenges for researchers seeking to generate such empirical information, reports confirm that across the United States a significant number of noncustodial fathers are jailed for nonpayment of child support. The cost of incarcerating delinquent parents, however, is not likely to be a significant factor that influences child support agencies’ enforcement decisions, given that those costs, which are shared with the states’ judicial and criminal justice systems, are partly externalized. Nonetheless, the considerable costs incurred to incarcerate Turner (and similarly situated poor fathers) did not result in increased child support payments for his children. Savings from reducing civil incarceration rates could be redirected to provide employment-related services to indigent child support obligors, a practice that has a far greater chance of leading to paid employment and ultimately compliance with support orders.

Although policies emphasizing jobs (rather than jail) for poor fathers are necessary, there is strong reason to be skeptical regarding the likely efficacy (and sufficiency) of such measures. The current presidential administration has encouraged state and local child support offices to shift their emphasis in enforcement proceedings from an overreliance on punitive measures to capacity building efforts. Policymakers at both the federal and state levels recognize that there is a convincing body of evidence showing that the potential contribution of poor noncustodial fathers to the improved economic well-being of their children is seriously constrained and falls far short of their child support orders’ amounts. Unfortunately, however, this new thinking has not yet transformed how child support systems operate nationwide. For the most part, the systemic and automated practices that contributed to Turner’s multiple imprisonments remain the status quo.

Successful implementation of this new system requires the acceptance and support of large bureaucratic institutions and other individual actors in the child support field. Yet, institutional resistance to reform is strong (particularly at the local and individual levels). Change will likely be slow because perceptions and basic attitudes also need to be changed. The myth of the deadbeat dad poses a considerable obstacle to implementing change. For example, even during the current economic downturn, which has been described by many as the Great Recession, child support officials and courts persist in the practice of setting minimum orders and imputing income to fathers who lack jobs. A recent study by the Institute for Research on Poverty reported on the effect of the recession on child support operations in five Wisconsin counties. The five counties included in the study represent a range of population sizes, and researchers selected them for inclusion in the study because they had high unemployment rates that rose sharply in 2009. The study examined how child support and court staff set original orders when the noncustodial parent was unemployed. It also assessed whether, in response to the recession, child support agencies and courts changed their practices.

The study determined that, despite recession and high unemployment rates in these counties, there has not been a significant change in the practice of setting initial orders in cases involving unemployed noncustodial parents who have no income from unemployment insurance. Courts in the counties are generally reluctant to order no cash payment, even when the obligor clearly has no means to make the payment, because the courts want to reinforce the seriousness of a parent’s financial obligation to his children. In establishing child support orders, the most common approach continues to be the establishment of an order based on imputed income (either based on the minimum wage or the prior work history of the parent) and requiring immediate payment of child support. Some counties impose a work search requirement along with the support order, and so long as the father satisfies the requirement to seek work, child support officials will refrain from filing a motion for contempt if there is nonpayment of the support order. Child support staff declining to pursue the harshest enforcement measures in response to nonpayment of support demonstrates an understanding and recognition of the economic difficulties experienced by noncustodial parents. However, because courts continue to set initial orders at an imputed amount that bears no relationship to unemployed parents’ actual earnings, parents in these counties continue to accumulate arrearages.

In a time of shrinking government budgets, it is unlikely that there will be widespread public support for making significant monetary investments in programs targeting disadvantaged fathers. For decades this population has been left behind and very few government services are available to poor noncustodial fathers. By contrast, Congress passed and implemented welfare reforms in the mid-1990s, during a period when the U.S. economy was experiencing tremendous growth and state budgets could more easily absorb the additional expenses associated with providing job-related services and other necessary supports to welfare recipients. A shift in the child support context toward securing jobs for noncustodial fathers who are delinquent in their child support payments will likely be less feasible as a practical matter and less acceptable as a political matter.

Thus, in addition to addressing the problems posed by institutional resistance to reform, efforts to improve low-income fathers’ job prospects must not fail to take account of several systemic factors hindering possible success in the labor market, namely pervasive racial discrimination in employment, the difficulty that former inmates have in securing employment, and the current dismal economic climate, which has made jobs scarce and eroded upward mobility. Even though the recession in the United States officially ended over two years ago, the recovery has been sluggish and the unemployment crisis persists. As of November 2011, the national unemployment rate was 8.6%. The Great Recession has hit Black workers particularly hard. During 2010, the unemployment rate among Black workers was two to nearly three times greater than that of White workers in some states. For example, unemployment among Black workers in Mississippi peaked at 20% in the first quarter of 2010, a rate that was more than three times the 6% rate of White workers. The employment and labor force participation for less-educated Black men between the ages of sixteen and thirty-four has been on a steady decline over the last two decades, continuing even through the strong economic years of the 1990s. Studies examining the decline attribute most of it to the negative impact that past incarceration and strict child support enforcement has on the labor force participation of young Black men. Notably, the period of declining employment coincides with the growth in incarceration rates and reforms to strengthen child support enforcement, both of which disproportionately impacted young Black men. As of 2002, the incarceration rate for Black men was five percent, and for young Black men it was twelve percent; additionally, approximately twenty-two percent of all Black men were ex-offenders.

The difficulties catalogued above challenge the normative ideal that financial responsibilities to and for poor children can be privatized without undue material hardship. Although child support has a role to play in the universe of programs for poor children, reconsideration of its prominence in family policy is warranted. In cases of serious social and economic disadvantage, even full and timely child support payments are unlikely to lift children out of poverty. Given that reality, policymakers need to examine alternative models that would provide needy children with a more stable public source of resources to ensure their economic security. In particular, it is time to reconsider the utility of assured child support benefits as a safety net in poor families. A child support benefit system that both enforces the obligation of noncustodial parents to provide financial support to their children and supplements that private support with a public benefit providing a minimum level of cash assistance would ensure that the basic needs of poor children are met. Establishing a child support floor–a publicly funded benefit that, coupled with court-ordered child support payments, ensures a minimum safety net–would substantially reduce poverty and the economic insecurity of single mothers and their children.

[a1] . Professor of Law, University of Wisconsin Law School; Faculty Affiliate, Institute for Research on Poverty, University of Wisconsin; J.D., 1989, Harvard Law School; A.B., 1986, Barnard College.

Reprinted from: Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-income Noncustodial Fathers and Their Families, 15 Journal of Gender, Race and Justice 617 (Spring 2012) (431 Footnotes Omitted)

Bias Against Fathers in U.S. Custody & Child Support

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Race, Racism and the Law
Vernellia R. Randall
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Lifetime TV Prepares to Run Down Parents in the Name of Bradley Law

About a year ago, Fox was entertaining running a program about “deadbeat dads”. Objections of the public swayed executives at Fox from airing the program. Now Jim Durham has found a taker to air his program with Lifetime TV.

What is the program about? “Good ‘ol boy” Jim Durham tracks down “deadbeat dads” and oppresses them like a childhood bully.  Reuters declares that “Deadbeat Dads” is ambush reality TV. Durham targets fathers that are behind on child support by making their lives miserable via home foreclosures, repossessions and the like. The show is about Jim Durham “squeezing” non-custodial parents that are behind on child support without apology. Allegedly, Durham has the authority to operate in this way. Hm-m. Surely, this will ultimately cause the social pendulum to swing the other direction at a time when the United States economy has placed millions of honest men out of work and at a disadvantage through Bradley Amendment oppression, perhaps forever financially ruined, even homeless.

“Deadbeat Dads” unfairly profiles divorced fathers as uncaring and selfish. Evidence and research clearly shows that most divorced dads pay child support and remain a part of their children’s lives, often under difficult and ingratiating circumstances. This show is demeaning and defamatory to fathers while building on many child support myths. To file a protest with Lifetime TV, click for details here.