February 7, 2020 by Robert Franklin, JD, Member, National Board of Directors
This article gives a pretty good idea of the dysfunctional nature of the child support system in the United States (Kansas City Star, 1/26/20). The state in question is Missouri, but the issues are the same from sea to shining sea and beyond.
Case in point: that of Rebecca Greenwell. Back in 2001, she was ordered to pay child support for her two kids. She did for almost five years, but then experienced health problems (emphysema and herniated spinal discs) that severely limited her ability to work and earn. The state’s solution? Put her in jail. Of course that didn’t help her pay, nor did it improve her health, so Greenwell plunged further and further into debt.
So the latest threat against her is a six-month stretch in jail, a prospect Greenwall understandably dreads. But she probably won’t go inside again. Why? Because her daughter, who’s now 20 years old, pays the child support for her. That’s right, the daughter for whom she owes the support in the first place is paying it for her mother. Amazing, but true.
Now, what the article doesn’t mention is that other versions of Greenwell’s case are actually fairly common. It’s true that the payor isn’t usually the child for whom the support is intended, but the fact remains that, when a parent is faced with jail, others often step up to make sure that doesn’t happen. So, relatives, friends or neighbors often pitch in to pay child support they don’t owe, just to keep the state from jailing a parent who’s too poor to pay.
And, speaking of the poor, that’s who typically fall under the State of Missouri’s axe in child support court. That’s not surprising, given that the same is true throughout the country and, as elsewhere, in Missouri, the poor don’t get much of a day in court when they fall behind on their payments.
“We have people who are clearly indigent, clearly insolvent, in prison solely for not paying child support,” said Matthew Mueller, special public defender for the Missouri State Public Defender system. “We need to ask ourselves whether we as a state, as citizens of Missouri, believe it’s appropriate or fair to be sending poor people to prison solely for not paying child support.”…
“I really have an issue with criminalizing poor people for not paying their child support because it’s not that they are choosing not to pay, it’s they really just don’t have the resources to pay it,” district defender Shayla Marshall said…
“The state cannot penalize someone just for being poor,” said Phil Telfeyan, executive director at Equal Justice Under Law, which has litigated the issue in five states.
“We think the vast majority of the 40,000 suspensions are people who literally cannot afford to make the payments. We’re not dealing with people who are refusing to pay and they have money hidden away somewhere.”
As the Office of Child Support Enforcement has announced numerous times, the overwhelming majority of child support debtors report earning under $10,000 per year. That, together with the fact that support orders are routinely set at levels above which obligors can pay, mean that the child support enforcement system comes down hardest on the poor and those unable to pay.
State Sen. Karla May said she is confident the law on driver’s license suspensions can be amended this legislative session.
The St. Louis Democrat is sponsoring a bill that would allow evidence to be presented at suspension hearings, and for judges to make decisions based on a person’s ability to pay child support as well as their transportation needs.
“Right now they don’t have that option,” May said. “Basically when they come into the court, it’s just a quick procedure and they suspend the license right away and they can’t go into discussion.”
To me, that looks like a procedure of dubious constitutionality. When a state senator says that the current system doesn’t allow the production of evidence (apparently any evidence), it strongly suggests that the debtor isn’t permitted to show indigency. Of course, license suspension is different from incarceration, but a state’s refusal to hear evidence from the debtor can’t satisfy the requirements of due process of law. Can it?
Meanwhile, Republican office holders have weighed in on the need for reform. Senator Wayne Wallingford told NPO:
Conservatives believe a limited government includes the protection of children. While we should end the punitive practice of suspending licenses when there is an inability to pay, my values dictate that we should also ensure children receive the care that they fundamentally require. I’m sure we can come up with bipartisan support on this.
There are a few efforts afoot in the Missouri Legislature to make the system less draconian than it currently is, but they’re mostly rearranging the deck chairs on the Titanic. The system of ordering and enforcing child support is not only dysfunctional, but in many ways divorced from the realities of what it takes to raise a child and how much should be ordered.
In the not too distant future, the National Parents Organization will be producing a comprehensive report on child support that should form the basis for the type of wholesale, root-and-branch reform that’s long been needed.