REFORMING
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STATUTES
Section 228 of Title 18, United States Code makes it illegal for an individual to willfully fail to pay child support in certain circumstances. If a noncustodial parent willfully fails to pay support for a child who lives in another state, or if the payment is past due for longer than 1 year or exceeds the amount of $5,000, this is a criminal misdemeanor, and parents can face fines or up to 6 months in prison (See 18 U.S.C. § 228(a)(1)). If the child support payment is overdue for longer than 2 years, or the amount exceeds $10,000, the violation is a criminal felony, and parents can face fines or up to 2 years in prison (See 18 U.S.C.§ 228(a)(3)).
STATE POLICIES & GUIDELINES
All states and territories operate a child support enforcement program and state legislatures can set child support policy. For example, South Carolina statute indicates that there is a $75 pass-through to households receiving TANF.Colorado is the first state to enact a full pass-through policy, meaning that 100% of the child support collected on behalf of TANF recipients is passed through to the family! The National Conference of State Legislatures created a chart of all U.S. states and territories, whether they have a pass-through and disregard policy, the amount of the pass-through and the statutory or code citation. NCSL also created a chart on child support guideline models by states, highlighting which model the state uses to determine the base child support amount due (income shares model, percentage of income model, or the Melson Formula) with links to the guidelines.
CASE LAW
In Turner v. Rogers, the U.S. Supreme Court held that indigent noncustodial parents do not have a right to counsel in civil proceedings regarding child-support issues. It did however make it clear that the trial court has to allow the defendant to explain their economic situation and then determine whether the defendant has the ability to pay. Turner v. Rogers, 131 S. Ct. 2507 (2011).
For Attorneys and Law Students: Click here for a WestLaw case database citing Turner
Bearden v. Georgia compelled local judges to distinguish between debtors who are too poor to pay and those who have the financial ability but “willfully” refuse to do so. Bearden v. Georgia, 461 U.S. 660 (1983). However, courts failed to define “indigent” and “willful” leaving this largely to the discretion of judges. As you can imagine, leaving this decision to judges can be problematic. For example, a South Carolina study found that 95% of parents held in contempt were sentenced to jail time.
“Parents who are truly destitute go to jail over and over for child support simply because they’re poor. You see a room full of indigent parents – most of them African American – you have a judge and attorney general, both of whom are white. The hearings often take only 15 seconds. The judge asks, “do you have any money to pay?” The person pleads and the judge says “Ok, you’re going to jail.” – Sarah Geraghty of the Southern Center for Human Rights
PENDING LEGISLATION
Legislation to end a court’s ability to send those who don’t pay Family Court-ordered support to jail may be getting a new push in the state Legislature. Sen. Julia Salazar, D-Brooklyn has introduced S.7387 in the Senate. Bill S.7387 is currently being reviewed by the Senate Rules Committee.
Influences? The Vanishing Black Family: Crisis in Black America
The Vanishing Black Family: Crisis in Black America was a 1986 documentary that focused on the problems of Black single-parent families in Newark, New Jersey. In conversations with unmarried parents, news reporter Bill Moyers investigated “patterns of teenage pregnancy, the role of welfare, and the changes in values among Black families.”Specifically, this documentary profiled a man named Timothy McSeed, who Moyers noted “had six children that were not his responsibility and left them to be supported by their mothers and welfare.” Moyers told viewers that Timothy is “not unusual,” alluding to the assumption that Timothy displayed an expectation for all Black fathers.
Scholars argue this film contributed to the development of welfare and child support legislation. Specifically, the Bradley Amendment which prohibits the retroactive State modification of child support arrearages. This law automatically triggers a non-expiring lien whenever child support becomes past-due, overrides any state's statute of limitations, and disallows any judicial discretion, even from bankruptcy judges. Under this current law, no matter the circumstances, a State cannot modify delinquent child support obligations. See Pub. L.99-509, Title IX § 9103(a), 100 Stat. 1973 (Oct. 21, 1986). Codified at 42 U.S.C. § 666(a)(9).
The Vanishing Black Family broadcasted in January 1986. The Bradley Amendment was introduced in May 1986, and passed in the Senate with an 88-7 vote in September 1986.