New York Times Attacks Child Support System

April 22, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Will wonders never cease? This New York Times article on child support is not only accurate, but sympathetic to impecunious fathers (New York Times, 4/19/15). Maybe it’s a combination of the Office of Child Support Enforcement’s latest effort to amend regulations governing establishment, payment and enforcement of child support orders and the recent shooting death in South Carolina of Walter Scott that’s spurred awareness of the travesty that so often is our system of child support.

Whatever the case, the Times article finally makes arguments I’ve made for years, which can only mean it’s improving, right?

Walter Scott’s death apparently happened because, when he was stopped by Officer Michael Slager, he was so terrified of going back to jail because of his child support indebtedness, that he ran. Just why Slager shot him multiple times in the back is anyone’s guess, but, to its credit, the press hasn’t shied away from the plain meaning of the incident.

Once upon a time, Scott had a pretty good job with a film company. He earned about $36,000 per year. That was enough to support himself and make his child support payments, but it wasn’t enough to pay back his arrears accumulated before he had the job. So what did the child support system do? It tossed him into jail for a couple of weeks. When he got out, he had no job, his indebtedness wasn’t a penny lower and, since he had no earnings, immediately began to rise. And this helped his child how?

Scott described the film job as being “the best job I ever had,” but it was far from the only one. And with each successive job, the same thing happened. He’d start working, resume paying support, but, having gotten further behind, he would soon be back in jail and jobless again. That Sisyphean process prompted the article’s all too apt title, “Skip Child Support, Lose Job, Go to Jail, Repeat.”

The system was so dogged in its determination to keep support out of his children’s hands and him in jail that Scott eventually drew the obvious conclusion.

“Every job he has had, he has gotten fired from because he went to jail because he was locked up for child support,” said [his brother, Rodney] Scott, whose brother was working as a forklift operator when he died. “He got to the point where he felt like it defeated the purpose.”

And who could argue? Is there anyone anywhere who can justify what was done to Scott (and of course his child) and to countless other non-custodial fathers across the country? How does losing a job due to incarceration help anyone? It’s a simple question but one policy makers and OCSE bureaucrats can’t answer.

And of course the same can be asked about, for example, suspension of licenses to drive. Does that improve or obstruct a person’s ability to get a job or hold it if he has one? So why does our system, that supposedly wants children to receive the support they need, punish non-custodial parents in ways guaranteed to thwart that very aim?

Unpaid child support became a big concern in the 1980s and ’90s as public hostility grew toward the archetypal “deadbeat dad” who lived comfortably while his children suffered.

Of course, the “deadbeat dad,” is as much a figment of our national folklore as the “welfare Cadillac” used to be. There’s little evidence that the “deadbeat dad” has ever existed in any numbers that would warrant the type of sweeping national and state policies we’re burdened with today. As Sanford Braver revealed in the late 90s, the overwhelming majority of fathers want to support their kids and, particularly when they’re not denied access to them, do.

But, as with so many of our policies on kids, lawmakers were happy to ignore science and follow their instincts that told them, for some reason, that fathers were worthless and sought any opportunity to escape their responsibilities. It’s an urban myth, but that didn’t stop it from guiding one of our major national policies. That we spend $5 billion per year on child support enforcement but just $10 million on visitation enforcement tells us all we need to know about what we think of non-custodial parents, i.e. mostly fathers.

Punitive enforcement policies are aimed at parents who can pay but refuse to. The problem being that those parents make up only a small minority of cases of non-payment.

The problem begins with child support orders that, at the outset, can exceed parents’ ability to pay…

A 2007 Urban Institute study of child support debt in nine large states found that 70 percent of the arrears were owed by people who reported less than $10,000 a year in income. They were expected to pay, on average, 83 percent of their income in child support — a percentage that declined precipitously in higher income brackets.

So our enforcement policies are aimed at the small minority of fathers who can pay but don’t, but are applied to the large majority that simply can’t pay, men like Walter Scott.

“Parents who are truly destitute go to jail over and over again for child support debt simply because they’re poor,” said Sarah Geraghty, a lawyer with the Southern Center for Human Rights, which filed a class-action lawsuit in Georgia on behalf of parents incarcerated without legal representation for failure to pay. “We see many cases in which the person is released, they’re given three months to pay a large amount of money, and then if they can’t do that they’re tossed right back in the county jail.”

Accordingly, what we should be doing is first setting orders at levels parents can pay and then, if they fall behind, determine whether they’re still able to pay or if something’s happened to prevent it. Supposedly judges are now required to make a finding that the debtor has the ability to pay before sending him to jail. But that’s a rule that’s honored in the breech. The five-minute hearings that constitute a child support obligor’s “day in court” are utterly insufficient to that task.

Then there’s the odd notion that, if a mother receives federal welfare benefits, it’s the father who has to repay the government.

[Commissioner of the Office of Child Support Enforcement, Vicki] Turetsky, the head of the federal child support office, said the system should be based on the expectation that both parents would contribute toward their children’s needs. “It’s nuts,” she said of the policy of making destitute fathers repay welfare. “She gets the assistance; he gets charged with the bill.”

Good as it is, the Times piece scarcely covers the waterfront. One of the many problems with our system of child support is that it in no way guarantees that the money paid will actually go to support the child. That fact is one of the most frequent criticisms cited by fathers of the child support system. It would be an easy problem to solve, but we doggedly refuse to do so. After all, for decades, we’ve had a food stamp program that limits purchases to food and other necessities. Why not establish a similar program for child support? That way fathers would know their hard-earned dollars were going to their kids and, as social science makes clear, that fact would make them much more willing to pay, supposedly an important national goal.

Nor does the article address the all but insurmountable difficulties fathers face in modifying child support orders downward when they lose a job, have their hours reduced, become disabled, etc. One of the chief ways arrears build up is the fact that it can take months to get a hearing and, since the dad can’t afford a lawyer, he often can’t prove his case. Simple legal forms, easy-to-get hearings and court staff who can advise non-custodial parents on what they need to bring with them to get downward modifications all have parallels in other areas of family law (like DV restraining orders). It would be a simple matter to afford those procedures to fathers who need downward modifications, but so far none have been tried.

The OCSE’s new regulations will be out soon. Whatever they turn out to be, they’ll be an improvement over a status quo that is so loony, so self-defeating as to almost defy description. It’s good to see the NYT hopping on the bandwagon of reasonable child support reform, even if it comes decades after the rest of us have known the problems and argued for improvement.

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