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

by Tonya L. Brito

burning the constitutionSince 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.

indigent in AmericaToday, 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

unconstitutional income grabberThe 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.

captiveAgainst 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.

child support loaded gunPoor 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

baby moneyThis 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

disabled dadReforms 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

kangaroo courtThe 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

dollar bondageOn 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

police on cameraPoor 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.

slavery to childrenGenerally, 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

felony-and-child-supportPractices 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

illegal-court-enforcementWith 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

hell-to-payThe 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.

arrestIncarcerating 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

liberty-internetAddressing 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.

dad-slaveryThe 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.

obamas new dealThis 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.

justiceAlthough 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.

shaken baby syndromeIn 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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