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Tonya L. Brito
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)
Since 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.
Today, 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.