IV. Rethinking the Child Support System's Approach to Low-Income Fathers
Addressing the problems this Article identified earlier entails a rethinking of the child support system's approach to low-income fathers and their families. Because many difficulties are linked to states' practices of privileging welfare cost recoupment over the economic well-being of poor children, the goal of providing economic support to poor children must be paramount. A stronger focus on children's economic needs invites reconsideration of many existing practices, such as the amount of child support paid by noncustodial parents that the state will pass through to families receiving welfare benefits rather than retain for reimbursement purposes; the requirement that welfare applicants assign their rights to collect past-due child support to states; and states' efforts to collect, from noncustodial fathers, Medicaid costs associated with a nonmarital birth.
A state's interest in recouping welfare expenditures is in tension with the goal of improving the economic well-being of children living in poverty. As noted, custodial parents receiving TANF are required to assign their rights to collect child support to states as reimbursement for welfare benefits. Because most states use the entire monthly support payment to recoup welfare expenditures, the child support collected does not enhance the family's living standard. About one-third of states pass through fifty dollars of collected child support to children's families. In 2004, states collected approximately $635 million in child support on behalf of TANF families and distributed about 27 percent of it to TANF families, keeping the rest to reimburse the federal and state governments for welfare costs. States could give families on welfare all the child support they collect through the assignment process. Doing so would remove many more families from poverty. Even fathers who later reunite with their families are not shielded from state efforts to collect child support. In these cases, the child welfare system pursues child support from low-income fathers who reside with their children in intact families, thus reducing the economic resources available to the families and privileging recoupment of state welfare expenditures.
Although reform in this area would likely lead to reduction in reimbursement revenue for the child support enforcement system, reform may nonetheless have a positive fiscal impact on poor families. Child support payments would inure to the economic benefit of disadvantaged children rather than states. While such a move might not be politically popular across the board because of its potential to reduce state revenue, some have argued convincingly that it is unreasonable to expect the child support system to self-finance its operations.
With this enhanced commitment to children's economic needs in mind, Part IV presents a multi-pronged alternative scheme for child support that falls into three distinct areas: corrections, investments, and shared responsibility. First, it proposes a system of corrections (or reforms) to the child support system that makes the financial obligations imposed on disadvantaged fathers more realistically reflect individual fathers' income potential. Second, significant government investment in effective capacity building strategies is needed so that disadvantaged fathers are better able to meet their child support responsibilities. At a minimum, progress should be made on both these fronts in order to address the economic needs of poor children and their families.
There are no guarantees, however, and implementing the first two prongs of this proposal may not succeed in achieving the goal of maximizing private support for poor children. The systemic barriers to securing employment that disadvantaged fathers (and mothers) experience are long-standing, intractable, and hard to surmount. The experiences of single-mother households that have left the TANF-caseload (i.e., welfare leavers) demonstrate the tremendous difficulty and fragility of even modest upward mobility from the lowest rungs of the socioeconomic ladder. Even more sobering are the consistent findings from decades of research involving disadvantaged men that confirm that, after completing a transitional (subsidized) job program, these men do not generally locate unsubsidized employment that pays a higher salary. Simply put, long-term gains in employment and earnings have been elusive for this population, and they are especially vulnerable to losing ground during economic downturns. Consequently, a more robust public-private sharing of financial responsibility for poor children ought to be a part of any reform. Private support of poor children thus would be complemented by, rather than substituted for, public support.
The time to reform the child support system is long overdue. The reforms envisioned can be characterized more as a series of corrections, an attempt to redress the harmful, unintended consequences of prior reforms that swung too far in the direction of punishing so-called deadbeat dads. The prior reforms failed to take account of the appropriateness and potential impact of such harsh measures on disadvantaged fathers and their families--and did so at the expense of accomplishing child support program goals. Indeed, there is growing recognition that, as applied to low-income parents, the child support system is not functioning effectively because collections are low, arrearages are excessively large, and poor children remain in poverty. The Commissioner of the OCSE acknowledges that, for disadvantaged populations, the growing body of research suggests that reduced orders and debt balances can improve employment and child support outcomes. The proposed reforms are thus directed primarily at setting realistic child support orders at the outset and implementing mechanisms to forgive (or compromise) existing onerous and un-payable child support debts.
The elimination or reduction of large child support debts is an important first step. There is growing acknowledgement in the field that, as a practical matter, low-income fathers will never be able to pay the enormous child support debts they have accumulated and that, as a consequence, the very existence of the debt can discourage some fathers from even trying to repay it. Indeed, the federal Office of Child Support Enforcement recently reissued a policy statement clearly stating that states have the authority to compromise unpaid welfare arrears owed to the government. The federal government permits states to compromise child support arrearages when the debt is owed to the state. Some state and localities are taking a close look at the large arrearages that have built up for low-income fathers. The methods used to manage uncollectible arrears include amnesty (debt forgiveness) programs for arrearages owed to states and the automatic suspension of orders when fathers are in jail or participating in job programs. So far, however, movement on this front has been piecemeal, and a more systematic and comprehensive effort is needed.
Furthermore, there is growing recognition that the arrearage problem is best handled through prevention. States are thus reconsidering the practice of routinely imputing income, setting large retroactive orders based on welfare debt and other costs that bear no relationship to fathers' abilities to pay, and keeping orders current by implementing procedures to facilitate prompt review and adjustment of orders when appropriate. As with arrearages, additional efforts must be made in order to have a meaningful impact.
First, it is essential that the federal OCSE mandate (and state child support agencies implement) realistic and appropriate child support policies in cases involving low- and no-income noncustodial parents. This approach will, in part, require that child support personnel, at both the order setting and enforcement phase, assess the noncustodial parent's ability and willingness to pay. Determining ability to pay will necessarily require an individualized, fact-based determination that takes into account a number of relevant factors. The assessment would consider such factors as the obligor's past work history, job skills, level of education, criminal record (if any), physical and mental health, and past efforts to secure employment or job training. A track record of compliance with child support obligations would also be relevant when evaluating willingness to pay. Assessment of willingness to pay should also consider the existence (or lack thereof) of employment opportunities in the obligor's community for job seekers with similar qualifications and characteristics. Such inquiries would no doubt provide the child support system (and individual caseworkers) with a better understanding of low-income fathers' economic predicaments and the efforts they resort to in order to survive economically. As noted previously, many low-income nonpaying fathers exhibit multiple barriers to steady employment. An assumption that all nonpaying fathers are deadbeats is inequitable and unjust, especially in light of the current recession and historically high unemployment rate, particularly for low-skilled workers.
Another area of proposed reform emphasizes capacity building to enhance poor noncustodial parents' labor market prospects so that they are better able to meet their economic duties to their children. The federal government now urges state child support programs to examine the underlying reasons fathers are not paying child support and to provide job-related support and services to poor fathers to help them meet their support obligations. There is widespread understanding that many low-income fathers who want to pay support are unable to simply because of obstacles to full participation in the labor market. Just as in the case of disadvantaged custodial mothers, similarly situated poor noncustodial fathers need a work-focused state safety net that helps to enable them to work and pay child support. Government assistance and social programs today are almost universally either predicated on participation in the formal labor market or restricted to low-income children and their custodial parents; because disadvantaged men are only tenuously attached to the labor market and tend to be noncustodial parents, they are ineligible for most income security programs. Thus, child support enforcement efforts must be coupled with measures designed to improve the employment prospects and overall financial security of poor fathers. Research showing a strong correlation between child support compliance and ability to pay supports this approach. Also, steady employment in the formal labor market enhances the efficacy of the enforcement system, which largely relies on routine and automated systems to target parents through their connections to the formal employment system.
This approach is reflected in President Obama's agenda for strengthening families, the Fatherhood, Marriage and Family Innovation Fund. The proposal, included in the Administration's fiscal year 2011 budget proposal, would establish a new $500 million fund to provide grants to states to conduct and evaluate comprehensive responsible fatherhood initiatives and comprehensive demonstrations to improve child and family outcomes in low-income families with serious barriers to self-sufficiency. While state- and local-level pilot programs providing comprehensive employment and other supportive services to low-income noncustodial parents exist, the Obama Administration's Fatherhood, Marriage and Family Innovation Fund would be the first such federal program.
The advantages of providing services to low-income fathers to assist them in their efforts to find and retain stable employment far outweigh resulting negative impacts to the child support system. Some might argue that the costs of the additional employment-related services would be prohibitive. Certainly, the child support system's functions will expand significantly. Its core duties, which today focus primarily on establishing and enforcing child support orders, would also include services designed to aid noncustodial parents in finding work and meeting their support obligations. Child support agencies or service providers in local communities would provide services in areas such as job readiness, job training, and job placement. Under this system, more caseworker time and attention would be expended assessing a low-income parent's ability and willingness to provide support. Conducting fact-based inquiries of all relevant information on a case-by-case basis is likely to be more time consuming and labor intensive than the current automated enforcement system, which is largely reliant on mass case processing. Because mass case processing is accomplished through computerized and automated systems, it relies less on the efforts of individual child support agency staff. By contrast, when a child-support staff member determines a noncustodial father's job readiness (or the package of services to eliminate barriers to employment), he or she will likely conduct a structured interview with the individual and possibly also utilize a range of specialized tools and assessment measures.
This approach will be more equitable and cost-effective as well (with potential fiscal gains to states from a reduction in unwarranted civil incarcerations offsetting any additional costs associated with individualized determinations). Michael Turner, for example, was incarcerated on numerous occasions for nonpayment of support, even though he was unemployed and lacked the ability to satisfy his debt. Some of Turner's jail sentences lasted for as long as a year. Not only did jailing him not succeed in coercing compliance with his child support order, it also imposed significant costs on the State of South Carolina. In light of the fact that thirteen to sixteen percent of South Carolina's jail population is comprised of child support obligors imprisoned for civil contempt, ample savings would be realized by ceasing the current practice of jailing poor parents who are unable to pay child support. Although empirical information regarding the national scope of this phenomenon is limited, and the limitations of existing data sources have presented challenges for researchers seeking to generate such empirical information, reports confirm that across the United States a significant number of noncustodial fathers are jailed for nonpayment of child support. The cost of incarcerating delinquent parents, however, is not likely to be a significant factor that influences child support agencies' enforcement decisions, given that those costs, which are shared with the states' judicial and criminal justice systems, are partly externalized. Nonetheless, the considerable costs incurred to incarcerate Turner (and similarly situated poor fathers) did not result in increased child support payments for his children. Savings from reducing civil incarceration rates could be redirected to provide employment-related services to indigent child support obligors, a practice that has a far greater chance of leading to paid employment and ultimately compliance with support orders.
Although policies emphasizing jobs (rather than jail) for poor fathers are necessary, there is strong reason to be skeptical regarding the likely efficacy (and sufficiency) of such measures. The current presidential administration has encouraged state and local child support offices to shift their emphasis in enforcement proceedings from an overreliance on punitive measures to capacity building efforts. Policymakers at both the federal and state levels recognize that there is a convincing body of evidence showing that the potential contribution of poor noncustodial fathers to the improved economic well-being of their children is seriously constrained and falls far short of their child support orders' amounts. Unfortunately, however, this new thinking has not yet transformed how child support systems operate nationwide. For the most part, the systemic and automated practices that contributed to Turner's multiple imprisonments remain the status quo.
Successful implementation of this new system requires the acceptance and support of large bureaucratic institutions and other individual actors in the child support field. Yet, institutional resistance to reform is strong (particularly at the local and individual levels). Change will likely be slow because perceptions and basic attitudes also need to be changed. The myth of the deadbeat dad poses a considerable obstacle to implementing change. For example, even during the current economic downturn, which has been described by many as the Great Recession, child support officials and courts persist in the practice of setting minimum orders and imputing income to fathers who lack jobs. A recent study by the Institute for Research on Poverty reported on the effect of the recession on child support operations in five Wisconsin counties. The five counties included in the study represent a range of population sizes, and researchers selected them for inclusion in the study because they had high unemployment rates that rose sharply in 2009. The study examined how child support and court staff set original orders when the noncustodial parent was unemployed. It also assessed whether, in response to the recession, child support agencies and courts changed their practices.
The study determined that, despite recession and high unemployment rates in these counties, there has not been a significant change in the practice of setting initial orders in cases involving unemployed noncustodial parents who have no income from unemployment insurance. Courts in the counties are generally reluctant to order no cash payment, even when the obligor clearly has no means to make the payment, because the courts want to reinforce the seriousness of a parent's financial obligation to his children. In establishing child support orders, the most common approach continues to be the establishment of an order based on imputed income (either based on the minimum wage or the prior work history of the parent) and requiring immediate payment of child support. Some counties impose a work search requirement along with the support order, and so long as the father satisfies the requirement to seek work, child support officials will refrain from filing a motion for contempt if there is nonpayment of the support order. Child support staff declining to pursue the harshest enforcement measures in response to nonpayment of support demonstrates an understanding and recognition of the economic difficulties experienced by noncustodial parents. However, because courts continue to set initial orders at an imputed amount that bears no relationship to unemployed parents' actual earnings, parents in these counties continue to accumulate arrearages.
In a time of shrinking government budgets, it is unlikely that there will be widespread public support for making significant monetary investments in programs targeting disadvantaged fathers. For decades this population has been left behind and very few government services are available to poor noncustodial fathers. By contrast, Congress passed and implemented welfare reforms in the mid-1990s, during a period when the U.S. economy was experiencing tremendous growth and state budgets could more easily absorb the additional expenses associated with providing job-related services and other necessary supports to welfare recipients. A shift in the child support context toward securing jobs for noncustodial fathers who are delinquent in their child support payments will likely be less feasible as a practical matter and less acceptable as a political matter.
Thus, in addition to addressing the problems posed by institutional resistance to reform, efforts to improve low-income fathers' job prospects must not fail to take account of several systemic factors hindering possible success in the labor market, namely pervasive racial discrimination in employment, the difficulty that former inmates have in securing employment, and the current dismal economic climate, which has made jobs scarce and eroded upward mobility. Even though the recession in the United States officially ended over two years ago, the recovery has been sluggish and the unemployment crisis persists. As of November 2011, the national unemployment rate was 8.6%. The Great Recession has hit Black workers particularly hard. During 2010, the unemployment rate among Black workers was two to nearly three times greater than that of White workers in some states. For example, unemployment among Black workers in Mississippi peaked at 20% in the first quarter of 2010, a rate that was more than three times the 6% rate of White workers. The employment and labor force participation for less-educated Black men between the ages of sixteen and thirty-four has been on a steady decline over the last two decades, continuing even through the strong economic years of the 1990s. Studies examining the decline attribute most of it to the negative impact that past incarceration and strict child support enforcement has on the labor force participation of young Black men. Notably, the period of declining employment coincides with the growth in incarceration rates and reforms to strengthen child support enforcement, both of which disproportionately impacted young Black men. As of 2002, the incarceration rate for Black men was five percent, and for young Black men it was twelve percent; additionally, approximately twenty-two percent of all Black men were ex-offenders.
The difficulties catalogued above challenge the normative ideal that financial responsibilities to and for poor children can be privatized without undue material hardship. Although child support has a role to play in the universe of programs for poor children, reconsideration of its prominence in family policy is warranted. In cases of serious social and economic disadvantage, even full and timely child support payments are unlikely to lift children out of poverty. Given that reality, policymakers need to examine alternative models that would provide needy children with a more stable public source of resources to ensure their economic security. In particular, it is time to reconsider the utility of assured child support benefits as a safety net in poor families. A child support benefit system that both enforces the obligation of noncustodial parents to provide financial support to their children and supplements that private support with a public benefit providing a minimum level of cash assistance would ensure that the basic needs of poor children are met. Establishing a child support floor--a publicly funded benefit that, coupled with court-ordered child support payments, ensures a minimum safety net--would substantially reduce poverty and the economic insecurity of single mothers and their children.
[a1] . Professor of Law, University of Wisconsin Law School; Faculty Affiliate, Institute for Research on Poverty, University of Wisconsin; J.D., 1989, Harvard Law School; A.B., 1986, Barnard College.