Sunday, October 22, 2017

C. Enforcing Child Support Orders Against Low-Income Fathers

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

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

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

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

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

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

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

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

 

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