MEETING INCARCERATED PARENTS “WHERE THEY ARE”
Enacted over 40 years ago, the United States Child Support Enforcement (CSE) Program now faces a new set of realities that challenge the success of this essential program.
Changing family dynamics – Incarceration rates have skyrocketed by more than 500% since 1975. Unwed births accounted for 10% of all births in 1975− they account for 40% today. Unmarried parents are more likely to be young, suffer from mental illness, be chemically dependent, and/or incarcerated.
Child support debt is growing – Nationally, approximately 25% of all U.S. inmates owe child support. On average, an incarcerated parent with a child support order leaves prison with roughly $20,000 in debt—with no means to pay upon release.
This equates to approximately $11 billion in unpaid child support debt attributed to incarcerated parents.
Paying while in Prison
The primary function of most child support agencies is locating non-custodial parents (“NCPs”). Up until recently, many agencies have followed the “find-them-and-make-them-pay” philosophy. When NCPs were ultimately located, and for whatever reason did not or could not pay their debt—they were often incarcerated. The mentality was that these “deadbeat dads” were simply trying to hide assets and/or thwart the system.
After several decades of following this approach, unpaid child support debt has increased—to the tune of $113 billion. Something was missing; old tactics were not working. According to Vicki Turetsky, former head of the Office of Child Support Enforcement (OCSE), “The ‘delinquent dad’ problem has been solved, thanks to welfare reform in the 90s that included tougher rules that tracked down men with money.” “The problem today is men without money. They don’t earn enough, and they’re accruing mountains of debt in back child support.” When NCPs have child support orders that they cannot afford to pay, it does not motivate them to work, it actually does the opposite. Turetsky calls it “magical thinking,” or “the income we think you should have.” Whatever it’s called, the fact remains: this money does not exist. These inflated obligations are detrimental to the obligor and to their dependent children who rely on consistent payments.
Another problematic scenario involves NCPs who are already incarcerated for criminal offenses unrelated to their standing child support obligations. Upon incarceration and without the ability to earn income, inmates find their child support debt continuing to accrue. Obligors often leave prison with an insurmountable debt obligation and the odds stacked against them in trying to secure gainful employment.
Child support obligations do have the ability to be modified to account for a “substantial change of circumstances” (e.g., unemployment). The obstacles with modifying orders are two-fold:
- In 14 states incarceration is categorized as “voluntary unemployment”—meaning, requests for modifications to a child support order due to a change in circumstances would not be granted, as they would for someone who became unemployed involuntarily.
- Many incarcerated NCPs simply do not know to ask for a modification to their support orders.
Upon release from incarceration, an individual’s annual earning potential has decreased by 40%.
Meeting NCPs Where They Are
Legislators and agencies have recently began to re-think the way child support obligations are established. Unrealistic payment expectations, especially in the case of incarcerated parents, were found to be counterproductive. These individuals have little-to-no earning potential while incarcerated and find it difficult to secure employment post-release. Reducing the amount of noncollectable debt—or, “meeting parents where they are”—increases the likelihood of future payments.
The Final Rule
In December 2016, The Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs final rule (the “final rule”) was published by the OCSE. According to the OCSE, the goal of the final rule is to “increase consistent child support payments for children based on the NCPs’ earnings, income, or other evidence of their ability to pay.” The final rule is a large shift in the child support paradigm and takes into consideration the fact that children do not benefit from the cycle of non-payment, incarceration, or their parents resorting to illegal means of income generation. The final rule also provides that states may not treat incarceration as “voluntary unemployment”—prohibiting states from legally barring modifications of orders during incarceration.
The OCSE has found that modified support orders, based on incarcerated NCPs’ current ability to pay, result in less debt accrual, more child support payments, and less need for enforcement post-release.
This logical, more humane shift in child support enforcement has found formerly incarcerated NCPs meeting their child support obligations, improving child support compliance and reliability, and reducing noncollectable debt. Ancillary benefits to the implementation of the final rule likely include a reduction in underground employment and improved relations between NCPs, their children, and their former partners.
The OCSE encourages child support agencies to implement a data-match system with their in-state correctional facilities to help them more easily determine whether NCPs are incarcerated. The hope is that agencies will not only locate, but educate parents on the child support rights and abilities now afforded to them—with the ultimate goal of successfully supporting their dependent children.