October 22, 2020 by Robert Franklin, JD, Member, National Board of Directors
At least one New York Assemblyman has a good idea (Post-Journal, 10/15/20).
Legislation (A.11038) has been introduced in the state Assembly, sponsored by Assemblyman Harvey Epstein, D-New York City, to amend the state Family Court Act to eliminate the court’s ability to send a anyone to jail for violating a support order.
It’s a sensible bill that deserves support and passage. Why? The simplest of reasons: jailing child support obligors behind on their payments does no one any good. It doesn’t help the obligor pay what he/she owes and in fact makes doing so harder. It doesn’t help the child who ends up getting less financial support and less time with his/her non-custodial parent. And of course it also makes it that much harder for the obligor to retain whatever job he/she has or find another one.
Assemblyman Epstein made many of those same points.
“If a non-custodial parent is sentenced to jail due to nonpayment of support, they may lose a job or be unable to seek employment, if they are out of work,” Epstein wrote in his legislative justification. “While it is important for both parents to emotionally and financially support their child, jailing a parent has negative consequences on both parent and child. The parent forgoes the child’s school and social events and the child misses the bonding relationship to their incarcerated parent. The relationship is forever altered, sometimes permanently damaged. People get sick or lose their jobs and thrown in jail for not paying their child support obligations, then debts add up while incarcerated and they are returned to jail so it can be a never-ending cycle.”
Now, I’ve seen it argued that, when faced with jail, child support obligors often come up with the money when before they didn’t. That is, the threat of jail works. And indeed, it often does produce money, but very often not from the person who owes it. Commonly enough, friends and relatives chip in because they don’t want to see the non-custodial parent behind bars. So yes, sometimes the money appears, but the ones paying have no obligation in the matter. Effectively, the system punishes those who don’t owe.
The very idea that non-custodial parents and child support obligors (the great majority of whom are fathers) are simply deadbeats who will look for any way possible to avoid supporting their kids is an artifact of days long gone by. It was a false notion then and it’s a false one now. Back in 1998, Arizona State University researcher, Sanford Braver, discovered that the primary reason non-custodial parents who can pay but don’t is that they’re denied access to their children by the custodial parent.
The conclusion to draw from that is that courts should punish custodial parents who interfere with access by their ex. Enforcing access would promote meaningful relationships between fathers and their children and increase the amount of support paid, a win-win. But that’s rarely done. In Texas, for example, interference with custody is a crime, but neither the police nor district attorneys enforce it, falsely claiming it to be a civil matter only. And family courts have a very poor track record of enforcing access orders.
The rest of those parents who don’t pay everything they owe, for the most part, can’t. This is hardly a secret. The Administration for Children and Families has, since at least 2008, admitted that over 40% of all outstanding child support debt will never be paid. Year after year, the total amount due and owing increases despite the well-financed efforts of state attorneys general.
The linked-to article cites figures from New York State.
New York state collected $1,718,403,812 in child support payments in 2018, according to the Federal Office of Child Support Enforcement, with roughly $7.2 billion in child support owed going unpaid. The state oversaw 794,956 child support cases in 2018.
Needless to say, all of those arrears have accumulated with the threat of jail hanging over every non-payor. The point being, jail doesn’t work to increase payments.
What does work are common-sense things like (a) issuing original orders within the payor’s ability to pay, (b) enforcing visitation orders, (c) cancelling interest on arrears that still run as high as 10% per annum in some states and (d) offer job training to help non-custodial parents find and keep jobs.
States do little or none of that, with the result that kids often lack support, arrears go up and up and the amount we spend on “enforcing” unenforceable orders remains an unnecessary drain on the public purse.
Epstein’s bill won’t fix all of that, but it would be a start.