D. Questioning the Efficacy of the Prevailing Approach
The poorest noncustodial parents are the most likely to face incarceration for nonpayment through the civil contempt process, even though lawmakers enacted such harsh enforcement measures with deadbeat dads in mind. The accumulation of unrealistic and excessive child support debts results, in large part, from subjecting impoverished noncustodial parents to an automatic and inescapable child support system that has reimbursement of welfare benefits as its primary focus and far too often does not account for parents' inabilities to pay. The low-income noncustodial parent who lacks attorney representation experiences the child support system as a virtually unstoppable chain of events that inevitably leads to unfathomable levels of debt that he or she has no hope of ever paying off.
While civil contempt for nonpayment is an efficient and justifiable tool for able-to-pay parents, when child support agencies apply this practice to all noncustodial parents regardless of their ability to pay, primarily poor parents end up in jail. For a destitute person, civil contempt is an inappropriate remedy to secure payment of a child support obligation: the party cannot be coerced into paying child support that instant because they have no funds to pay it. Under such circumstances, incarcerating destitute child support debtors serves no purpose at all. Because the goal of civil contempt is to coerce compliance with a court's order, the justification for imprisonment is lost when compliance is impossible.
The goal of recouping welfare expenditures incentivizes states to aggressively pursue child support collections from the very poorest parents, rather than from middle- or upper-income parents, who do not have children in the welfare caseload. For these poor fathers, it is virtually inevitable that they will experience the full brunt of the child support enforcement system, including penalties, sanctions, and potentially even incarceration. Yet, even with the government's enhanced, automated, and stringent enforcement tools in operation, noncustodial parents still owe over $110 billion to state child support systems as recoupment of welfare cash assistance provided to their children. The staggering amount of child support arrears confirms that child support payments, standing alone, are insufficient to meet the needs of poor children. Given the dismal collection rate of arrears, one must question the efficacy of the current child support system in achieving its stated goals of reducing child poverty and reimbursing the state for welfare expenditures. Moreover, recent studies reveal that, in some circumstances, child support enforcement may hinder collections rather than enhance them.
For example, one recent empirical study determined that aggressive child support measures not only fail to lead to the collection of more support, but mothers living under strong enforcement regimes may actually be worse off than those living in weak regimes. Researchers concluded that when child support agencies utilized formal enforcement measures against noncustodial fathers who voluntarily contributed informal cash and in-kind support to custodial mothers, the contributions ceased and tended not to be replaced by equivalent levels of formal cash support. Moreover, there is evidence that states' aggressive and relentless pursuit of child support pushes some poor noncustodial fathers of children receiving public benefits to seek genetic testing and disestablishment of paternity in order to be freed from the duty to pay child support. The resulting unintended consequence is that some children become legally fatherless and lose the economic support and nurturing provided by their (non-biological) fathers.
Another recent study focused on the impact of child support enforcement on the labor force behavior of young Black men and concluded that child support enforcement negatively affects labor force activity for this demographic group, especially those between the ages of twenty-five and thirty-four. As noted, for this population, child support orders are high relative to income (typically in the range of twenty to thirty-five percent of income). And when child support is combined with regular taxation, obligors can experience an effective tax rate as high as sixty to eighty percent. When poor noncustodial fathers fail to pay support (as often happens), the enforcement mechanisms are triggered, and through wage garnishment, the child support system takes up to sixty-five percent of the parent's net income to satisfy the child support debt.
Incarcerating indigent noncustodial fathers also undermines child support program goals. Most fundamentally, few obligors generate income while incarcerated, and incarceration may negatively impact their employment prospects upon release. It is well-documented that ex-offenders have limited employment opportunities and that employers are much less likely to hire Black men with criminal records than they are to hire similarly situated White men. A prison record not only erodes job opportunities because of employer aversion, it also disqualifies ex-offenders from some skilled and licensed occupations. And even when they do find work, noncustodial parents with criminal records earn significantly less than they did prior to their incarceration. Thus imprisonment further prevents noncustodial fathers from paying their required support.
Moreover, both the practice of aggressive child support enforcement and the prospect of imprisonment for nonpayment push some indigent parents to participate in underground employment. In one qualitative study, low-income fathers who lack the financial means to pay their support orders have said they faced the choice between generating income in the underground economy or being caught by the child support enforcement and, possibly, imprisoned. Underground employment, which includes self-employment, off-the-books and under-the-table jobs, and illegal activities, such as selling drugs and selling stolen merchandise, provides earnings that are easily hidden from the child support system. Fathers who engage in underground employment enjoy a greater degree of payment discretion because the automated and routine enforcement mechanisms are less effective for obligors who work outside the formal employment sector. Incarceration for nonpayment can have similar effects, driving poor fathers into the underground economy, thereby reducing the amount of income available to children through child support payments and undermining the intended purpose of stronger enforcement.