The Criminalization of Child Support on Poor Fathers and The Unintended Cost to Impoverished Families

Introduction

Child support, the system intended to help struggling parents support their children, is hurting some of our neediest families instead.[1] The modern-day child support system got its start in 1975, under President Gerald Ford, with Section IV-D of the Social Security Act.[2] At a time when “divorce was one of the single greatest predictors that a woman, especially a woman with children, would fall into poverty,” the child support system emerged.[3] With the rapid increase in divorces, the child support system was initially created to provide financial support for the growing number of single mothers at risk of falling into poverty.[4]

Child support assists mothers living in poverty or those mothers who are at risk of being in poverty. However, the current child support system has created a disconnect between the mothers who need this support and the fathers responsible for paying for that support. 

I.     Part 1: The History and Mechanics of the Child Support System          

A.   A Brief Look at the History of Child Support in America 

The early 1990s is where child support got its start in America.[5] The passage of the Uniform Desertion and Non-Support Act in 1910 made it a “crime … for a husband to willfully abandon or neglect to provide support for children under the age of 16.”[6] Since the 1950s, there have been several amendments to the Social Security Act that have created the child support system we know today.[7]

B.    The Mechanics of the Child Support System 

Child support is something everyone has at least heard of. However, most people do not understand the system's depth until it impacts them personally or decide to become educated on the subject matter. Even so, child support is widespread, with one in five children in the U.S. being served by the child support program.[8] In 2018 alone, there were 14.7 million children that received support because of the child support program.[9]

Child support is a payment that one parent makes to the other parent, or their child's legal guardian, to help with the costs of raising a child.[10] Through the Office of Child Support Enforcement ("OCSE"), the federal government partners with states to oversee all child support programs.[11] The OCSE gives guidance to states on how they should handle their child support programs.[12] However, a lot of the decision-making happens at the state level, which means every state runs its program a little differently.[13] Each state has various offices called "local child support offices" that are in charge of the day-to-day running of the child support program.[14]

The local child support offices offer several services related to their child support program.[15] Those services include providing help with (1) opening a child support case, (2) locating the other parent, (3) establishing the child’s parentage, (4) establishing a child support order, (5) setting up payment for the ordered support, (6) enforcing the support order, and (7) reviewing the order as needed.[16] Each of these steps can be crucial for the child to receive the support they need.[17]

The local child support office's services provide a great outline of the steps taken by the parent wanting support (custodial parent) from the other parent (the non-custodial parent). To receive child support for their child, the custodial parent has to start by submitting a completed application for child support with their local child support agency, which starts opening a child support case.[18] Once a case has been opened and the local office locates the other parent, parentage must be established for the child. The support is being requested if it has not already been established. After parentage has been established, the local office establishes a child support order.[19]

The child support order is used to decide how much money the non-custodial parent will be responsible for payment.[20] There are three models that states use to calculate the payments, 1) the Income Shares Model, 2) the Percentage of Income Model, and 3) the Melson Formula.[21] Once the payment has been calculated, the payment of that amount is set up.[22] The most common way the local offices set up payment is by deducting the payment from the parent's paycheck, which is then distributed to the other parent.[23] This is where the most significant divide among parents starts. The father's amount he is ordered to pay, the barriers of meeting that obligation, and the ramification if payment is not met.[24]

When the parent does not pay the full amount and or does not pay, the local office resorts to the sixth service they offer, enforcement of the child support order.[25] There are various tactics that the local child support offices deploy to get the support that has been ordered. These tactics include withholding child support from paychecks, unemployment, or workers comp benefits, intercepting income tax refunds, reporting delinquent child support payments to credit reporting bureaus, and in the worst cases, jail time.[26] Either parent can ask their local office to review their child support order after the order has been in place for three years.[27] The only exception to this rule is if the parent that has been ordered to pay child support experiences substantial changes in circumstances like job loss or incarceration.[28]

II.            Part 2: Identifying the Issues

A.   The Intersection Between Poverty and Child Support 

“Poor parents who get child support rely on it for more than half of their annual income.”[29] The original reason for the formation of the child support system has been realized, with women making up 85% of the individuals that are served by the child support program.[30] Also, over half (52%) of the families served by the child support program “have incomes below 150% of the poverty threshold” and “nearly half (48%) of all children in poverty are eligible for child support services; 82% of children in poverty and eligible for child support are served by the [child support program].”[31]

This data can tend to be misleading; the pool of low-income individuals is much larger.[32] In 2015, 9.3 million families (69%) receiving child support “had incomes of $50,000 a year or less” and “nearly one-third (4.4 million) had incomes of $20,000 and below.”[33] In addition, “only 23% of IV-D families had incomes over $50,000” that year.[34]The data shows that an irrefutable large number of individuals living in poverty rely heavily on their child support's financial assistance. 

So, what happens when impoverished mothers who rely on the child support payments they are supposed to receive do not receive those payments? There is an on-going issue of non-payment of child support by the non-custodial parent.[35] In 2015, less than half (43.5 %) of parents supposed to receive child support did receive the full amount of their owed child support.[36] When the custodial parent is not receiving the child support money, they need it to make ends meet. They must look to other options, like support from the government.[37] This support typically comes in public assistance, like Temporary Assistance for Needy Families (TANF), which shifts the financial responsibly from the non-custodial parent to the government and taxpayers.[38]

B.    The Reasons for Non-Payment and the Subsequent Consequences Facing Poor Fathers 

The word child-support has the power to create hope or fear in people, depending on who hears it. The current child support system makes it a crime to be poor and a father. In the 1990s, we see the criminalization for non-payment of child support with the Child Support Recovery Act of 1992 and the Deadbeat Parents Punishment Act of 1998.[39] Are poor fathers non-payments on their owed child support due to the unwillingness to pay or a more significant issue? Are the current enforcement measures successful when they are used on poor fathers? 

Why can't some fathers afford to pay their child support payments? The answer is simple yet baffling to some. The majority of fathers who are not current on their child support are behind because they are too poor to pay child support. When we take a look at the unpaid child support cases in the US, a startling statistic emerges, about 70% of the parents who owe the unpaid child support money are making less than $10,000 a year.[40]

What happens when these poor fathers cannot afford to pay child support? The fathers are ultimately penalized because of their income inequality relative to the fathers that can afford to pay child support and not be at risk of facing penalties. There are various tactics that the local child support office uses to get the child support that the father has been ordered to pay. Some of these tactics include garnishing paychecks, unemployment benefits, workers comp benefits, and intercepting income tax refunds. These tactics can also include reporting the delinquent child support payments to credit reporting bureaus, revoking driver's licenses and professional licenses, and in the worst cases, jail time.[41]

The current system of enforcement for non-payment of child support exacerbates poverty rather than helps it.[42]When these measures are used against fathers, they are being punished for not having the means to pay child support, not because they have some evil intent to withhold needed funds from their children.[43] Additionally, these punishments, which are meant to hurt the father for his lack of payment, can hurt the innocent mother because she cannot get the money she needs. After all, the father is facing even more barriers to the payment of his child's support.[44]

Conclusion

            To have an effective child support system that supports both the mother and the father, we have to move away from the child welfare system's traditional approach. The intersection between poverty and the child support system must be addressed. The current child support system is made up of two sides dealing with the same issue, financial insecurity. On one side are the poor mothers seeking child support that they desperately need to make ends meet. On the other side are poor fathers who want to pay child support but cannot because of their financial situations. 

Under the current system, poor mothers and poor fathers are penalized alike. The fathers are being penalized not because they want to avoid paying their child support obligations but because they financially are unable to pay the support they have been ordered to pay. When the fathers are penalized for non-payment, the underlining issue of non-payment is not being solved. Also, mothers are being penalized when the system tries to punish fathers who cannot pay since most tactics ultimately result in the fathers being pushed further into debt. This phenomenon means that mothers are still not receiving the assistance they need. If anything, the access to the assistance is getting further away. The best way to resolve this issue is by implementing programs that work collaboratively with the local child support agencies and providing multi-prong approaches.

Additionally, suppose all states implemented 100% pass-through and disregard policies like Colorado. In that case, mothers on TANF could get more support for the children than their child support payments going to as reimbursement for the services they need. Both solutions allow the mothers to get the support they need without the fathers facing the harsh burdens of penalties just because they had the misfortune of being poor and being a father. 

FOOTNOTES

[1] Yvonne Wenger, At what cost? For Baltimore's most impoverished families, the child support system exacts a heavy price — and it is hurting whole communities, The Balt. Sun (Mar. 5, 2020, 11:24 AM), https://www.baltimoresun.com/news/investigations/bs-md-baltimore-sun-child-support-project-20200305-cddqvji4m5dlvd3n27mnq4e3by-htmlstory.html.

[2] Maureen Pao, How America's Child Support System Failed To Keep Up With The Times, Nat’l Pub. Radio (Nov. 19, 2015, 6:39 PM), https://www.npr.org/2015/11/19/456632896/how-u-s-parents-racked-up-113-billion-in-child-support-debt.

[3] Id.

[4] Id.

[5] A Brief History of Child Support Laws in the U.S., Adams Fam. L. (Nov. 30, 2017), https://adamsfamilylaw.com/2017/11/brief-history-of-child-support-laws-u-s/.

[6] Jennifer Wolf, History of Child Support in the U.S., LiveAbout, (Mar. 9, 2018),  https://www.liveabout.com/the-history-of-child-support-in-the-us-2997821. 

[7] Id.

[8] U.S. Dep’t of Health & Human Servs., 2018 Child Support: More Money for Families (2018), https://www.acf.hhs.gov/sites/default/files/documents/ocse/2018_infographic_national.pdf.

[9] Id.

[10] U.S. Dep’t of Health & Human Servs., How Does Child Support Work?, Admin. For Child. & Fams., https://www.acf.hhs.gov/css/parents/how-does-child-support-work (Dec. 19, 2019).  

[11] U.S. Dep’t of Health & Human Servs., State Agencies, Admin. For Child. & Fams., https://www.acf.hhs.gov/css/child-support-professionals/state-agencies (Oct. 14, 2020).

[12] U.S. Dep’t of Health & Human Svcs., supra note 11.

[13] Id.

[14] Id.

[15] Id.

[16] Id. 

[17] Id. 

[18] U.S. Dep’t of Health & Human Svcs., supra note 11.

[19] Id.

[20] Id.

[21] Child Support Guideline Models, National Conference of State Legislatures (July 10, 2020), https://www.ncsl.org/research/human-services/guideline-models-by-state.aspx.

[22] U.S. Dep’t of Health & Human Svcs., supra note 11.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] U.S. Dep’t of Health & Human Svcs., supra note 11.

[29] Jeff Guo, How our child support system can push the poor deeper into poverty, The Washington Post (Sept. 26, 2014, 9:23 AM), https://www.washingtonpost.com/news/storyline/wp/2014/09/26/the-unintended-consequence-of-child-support/; see also U.S. Dep’t of Health & Human Servs., supra note 9.

[30] Elaine Sorensen Et Al., Characteristics of Families Served by the Child Support (IV-D) Program: 2016 U.S. Census Survey Results (2018); see also Pao, supra note 2. 

[31] Id. 

[32] Id. 

[33] Id. 

[34] Id. 

[35] Timothy Crall, Custodial Mothers and Fathers and Their Child Support: 2015 (2020).

[36] Id.

[37] Debrina Washington, The Effect of Child Support on Public Assistance, verywell fam. (May 21, 2020), https://www.verywellfamily.com/the-effect-of-child-support-on-public-assistance-2997620.

[38] Id.

[39] A Brief History of Child Support Laws in the U.S., supra note 5.

[40] Child Support Forcing Poor Families Further Into Poverty, The Balt. Sun (Mar. 12, 2019, 12:35 PM), https://www.baltimoresun.com/opinion/editorial/bs-ed-0314-child-support-overhaul-20190312-story.html; see also Guo, supra note 29.

[41] Id.; see also Debrina Washington, Failure to Pay Child Support, the balance small business (Dec. 16, 2020),https://www.thebalancesmb.com/failure-to-pay-child-support-penalties-2997972.

[42] Maria Cancian & Daniel Meyer, Reforming Policy for Single-Parent Families to Reduce Child Poverty, 4.2 The Russell Sage Found. J. of the Soc. Sci. 91 (2018).

[43] Wenger, supra note 1.

[44] Id.