N.K. Clark

 

April 30, 2014

 

It may be difficult for many to understand that being jailed for debt is illegal in the United States, especially since it has become a more familiar practice in the 21st century.  According to Kelly Beaucar Vlahos of FoxNews.com (2013), before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off.  The country has taken a step back to those days especially, when it is in regards to collecting child support debt.  Yes, it is happening to people who owe money for outstanding traffic tickets and other unpaid citations, but parents are being jailed way too often for outstanding child support debt.  It is being disguised as contempt of court to justify mass incarcerations, but the reality is that debtors’ prisons are the actual reason for these lockups. 

 

Contempt of court as it relates to child support can be a civil or criminal in nature but both carry stiff punishments including incarceration.  According to Elizabeth G. Patterson (2008), criminal contempt is supposed to be a punishment for willful misbehavior, not for the absence of funds.  The child support court does not seem to recognize the willful intent that a person must exhibit in order to be held in criminal contempt.  Both of these charges have a direct relationship to ones financial status and are greater punishment for the poor.  Arrests and incarcerations are, more than likely, the consequences for nonpayment when the noncustodial parent is poor because the parent clearly has less access to resources with which to pay the required child support, (Rebecca May, 2004).  The end result is that more people are hunted, arrested, and jailed for no other crime except for being poor.

 

More cases seem to stem from the civil contempt of court branch of the child support agencies and the court system.  Civil contempt is supposed to be used to coerce a person to do something that he is able, but unwilling, to do, (Patterson, 2008).  Again, the language of being unwilling to pay creeps back into the conversation and should pose a dilemma for these courts.  Without proof that one can pay, but refuses to do so, the court fails to satisfy the criteria associated with a charge of contempt.  It is often said that the jailed hold the keys to his or her freedom by paying for that freedom with money.  In my opinion, that is as direct an example of debtors’ prison as any other that can be identified.  Jailing people for child support debt will only increase the amount owed to the local and state governments and decrease the money owed to the child. 

 

This increase is applied through court costs, restitution, and interest in most states.  According to Vlahos (2013), North Carolina imposes late fees on debt not paid and surcharges on payment plans.  This, undoubtedly, causes more parents to return to jails across the country due to inability to meet these growing obligations.  The more disturbing issue besides contempt of court being used to disguise debtors’ prisons is the lack of rights that the parent retains during the entire process. Civil defendants generally are not entitled to the constitutional protections that criminal defendants receive (Solomon-Fears, Smith, Berry, 2010).  This means that besides being jailed for debt, the parent has no rights to an attorney, a trial, or a chance to prove that he or she may be too poor to pay the ransom in exchange for their freedom. 

 

Criminal contempt of court fare no better as defendants (parents) are afforded certain constitutional protections, however, with little or no money, the defense may be inadequate to properly defend the parent.  For those that are able to raise money and are freed with a payment arrangement, states will pursue every option on order to collect the money.  Vlahos (2013) writes that many jurisdictions have taken to hiring private collection/probation companies to go after debtors.  Most people can agree that if money is available, parents would pay their child support and all other associated debt.  However, if the parent is poor, he or she becomes subject to strict punishments including jail. 

 

Some states have even given these private collection agencies and probation companies the authority to revoke probation and incarcerate to debtors’ if they can’t pay (Vlahos, 2013).  In this era, debtors’ prisons are a growing reality.  Not only is the government permitted to lock a person in a cell for inability to pay a debt, private collection agencies are able to do the same.  Contempt of court, whether civil or criminal, is a disguise used to hide the truth.  Poor people who happen to be parents are being thrown in jail for no crime except not being wealthy enough to pay imputed debt.  This needs to end as soon as possible.  One day people may be jailed for owing the cable or the electric companies if this illegal process is allowed to remain in our court systems.

 

References:

 

May, R. (2004, January). The effect of child support and criminal justice systems on low-income noncustodial parents. Retrieved April 10, 2014, from http://www.cffpp.org/publications/Effect%20of%20Child%20Support.pdf

Patterson, E. G. (2008). Civil contempt and the indigent child support obligor. Cornell Journal of Law and Public Policy, 18(95), 95-141. Retrieved from http://www.lawschool.cornell.edu/research/jlpp/upload/patterson.pdf

Solomon-Fears, C., Smith, A. M., & Berry, C. (2012, March 6). Child support enforcement: Incarceration as the last resort penalty for nonpayment of support. Retrieved April 10, 2014, from http://www.ncsea.org/documents/CRS-Report-on-CSE-and-Incarceration-for-Non-Payment-March-6-2012.pdf

Vlahos, K. B. (2013, December 28). Local courts reviving ‘debtors' prison' for overdue fines, fees | Fox News. Retrieved April 10, 2014, from http://www.foxnews.com/politics/2013/12/28/local-courts-reviving-debtors-prison-for-overdue-fines-fees/

 

 

 

 
 
April 23rd , 2014


 

The story about the Houston father is one that raises many questions about the laws and the judges that govern the child support system.  In my strong opinion, the child support system is outdated, unfair, and arguably, unconstitutional.  This case reiterated my feeling and I will explain my reasoning to any opponents to my argument.  First, child support was reformed and implemented during the introduction of the Personal Responsibility and Work Opportunity Act (PRWORA) of 1996.  Except for few laws, such as the Deficit Reduction Act (DRA) of 2008, there has been little change to the child support system and its regulations.  In order for the system to be effective, it must change to suit the demands of an ever changing family dynamic.

 

Previously, the Temporary Assistance for Needy Families (TANF) recipients were required to assign all (present and future) child support payments over to the state.  The DRA limits the assignment of support rights to the state to the amount of support that accrues during the period when a family receives assistance, not to exceed the cumulative amount of reimbursed assistance (North Carolina Department of Health and Human Services, 2014).  Undoubtedly, this did little to require states to pay all of the support that was collected to the families.  In fact, 29 states currently fail to pass-through, or pay child support collected to its families receiving TANF benefits.  Many contend that  due to the pass-through policies, child poverty in American has steadily increased over the past decade.  This point alone shows how outdated the system continues to be in assisting families climb out of poverty. 

 

Secondly, incarcerating any citizen because of owing a debt is against federal law.  According to the Activist Post (2013), America chose to abolish her debtors’ prisons a full 36 years before England-first in New York in 1831, and then by 1833 in most of America had followed.  So why, over 150 years later, should a father in Houston be jailed for child support debt even after he paid the support?  The system justifies jailing parents by calling the charge one of contempt of court.  However, the debt is the ultimate reason behind the incarceration, so essentially debtors' prisons have returned to our country.  Supporters of the lock up and pay to be set free policy should strongly consider the possibility of being jailed for other debt.  That should not be too difficult to imagine since it is happening all over the country right now.

 

Fortunately, states such as Ohio, are taking action against such draconian laws.  The spokesperson for the American Civil Liberties Union (ACLU) of Ohio summarized debtors’ prisons by stating that they are not only unconstitutional, they are cruel albatross that traps low-income people in a never-ending cycle of poverty, debt, and incarceration, (Huffington Post, 2014).  Based on the federal law, incarceration for debt is unconstitutional and more states should follow the Ohio State Supreme Court and ban courts around the country from ordering incarceration as a punishment for destitution.  According to the Huffington Post (2014), Ohio's highest court took steps to make sure no one sentenced in state cases gets put behind bars simply because they are too poor. 

 

Lastly, the limited rights that most men have in the choice of becoming fathers in the United States, is simply unfair.  Women have nearly all the control pertaining to reproductive and child bearing rights.  Currently, if a woman decides to bring to term a child that the man who impregnated her does not want to have, he can be forced to pay for his ‘crime” for years to come through child support laws, (Jarron Bowman, 2014). Men that do not have a choice in becoming a parent should not be subject to punishments by the governments. That does not support equal protections under the law and are, therefore, seemingly unconstitutional to men.

 

The case in Houston reiterated my feelings of disdain for the child support system.  There are so many components that alienate parents from those protections guaranteed under the U.S. constitution.  We cannot excuse violations to certain parts of the constitutions but allow other violations just because they are politically correct.  As long as child support remains outdated, unfair, and unconstitutional, more fathers like Clifford Hall will be victims to this system.  It is time to fight for the rights for all citizens, especially the ones who happen to be parents trapped in the child support system.

 

References:

 

Bowman, J. (2014, February 2). Social Disorder: Expanding Men's Reproductive Rights - The Michigan Daily. Retrieved March 1, 2014, from http://www.michigandaily.com/blog/podium/social-disorder-expanding-mens-reproductive-rights

Diamond, M. (2011, December 13). The Return Of Debtor's Prisons: Thousands Of Americans Jailed For Not Paying Their Bills | ThinkProgress. Retrieved February 26, 2013, from http://thinkprogress.org/justice/2011/12/13/388303/the-return-of-debtors-prisons-thousands-of-americans-jailed-for-not-paying-their-bills

Edwards, M. (2013, December 26). Activist Post: The Debtors Prison System Resurrected From The Grave. Retrieved from http://www.activistpost.com/2010/06/our-future-in-chains-for-profit-debtors.html

Huffington Post (2014, February 2). 'Debtors' Prisons' Struck Down By Ohio Supreme Court. Retrieved March 1, 2014, from http://www.huffingtonpost.com/2014/02/05/debtors-prisons-ohio_n_4732596.html

Lane, S. (n.d.). The New Bill Collector Tactic: Jail Time | Nolo.com. Retrieved February 26, 2014, from http://www.nolo.com/legal-encyclopedia/the-new-bill-collector-tactic-jail-time.html

National Conference of State Legislator (2014, January). Criminal Nonsupport and Child Support. Retrieved February 26, 2014, from http://www.ncsl.org/research/human-services/criminal-nonsupport-and-child-support.aspx

North Carolina Department of Health and Human Services (n.d.). Child Support Services DISTRIBUTION/DISBURSEMENT. Retrieved March 1, 2014, from http://info.dhhs.state.nc.us/olm/manuals/dss/cse/man/CSEcN.htm#P17_568

Office of Child Support Enforcement (1996, November 1). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 | Office of Child Support Enforcement | Administration for Children and Families. Retrieved March 1, 2014, from http://www.acf.hhs.gov/programs/css/resource/the-personal-responsibility-and-work-opportunity-reconcilliation-act

 

 
 
N.K. Clark

April 16, 2014

Most people are aware that when we sign a contract for credit, we are in agreement to the terms and conditions related to that contract.  We know that we are responsible for all costs associated with that contract such as interest and late fee penalties when the contract is not honored.  But how many know about the interest that parents must pay when child support payments are late?  According to the Consumer Financial Protection Bureau (2013), a debt collector may not collect any interest or fee not authorized by the agreement or law.  People should wonder why the government can then charge interest on parents who, more than likely, did not agree to the terms of the child support order.

 

There are a large majority of child support orders which have been granted by default judgments which are usually the result of the nonresidential parent missing a court date.   There are a great deal of parents that are responsible for imputed payments established based on imaginary income and possible future earning potential.  When these payments are missed, 35 states attach interest to the debt.  According to the National Conference of State Legislatures or NCSL (2013), states may look at interest on child support arrears as both an incentive to encourage payments as well as a penalty for those who do not make timely payments.  The punishment of interest does little to collect payments when unemployment is the reason for the nonpayment of support.  However, if there is no income, applying interest only guarantees more debt for the noncustodial parent and more potential revenues for the government. 

 

Interest can be extremely expensive depending on what state hold the child support order.  There are a couple of states that charge more moderate interest rates ranging from four and six percent.  However, interest rates increase to 10 and 12 percent in states like California and Colorado.  Although many studies have been conducted on the minimal benefit of charging interest on an uncollectible child support debt, California continues to charge their parents with no hesitations.  There was a study conducted in which it was determined that the Sunshine State had an estimated $14.4 billion in child support arrears.  According the Urban Institute (2003), in 2000 it was estimated that parent debtors would pay $843 million dollars towards arrears and interest, or 6% of the $14.4 billion in first year.  This money will not be paid to the families that child support payment is supposed to help.  Over 10 years, parent debtors would pay $3.8 billion, or 26% of the original $14.4 billion of arrears owed as of March 2000, (Urban Institute, 2003). 

 

These startling statistics show that the state has not taken into consideration the damaging financial repercussions charging more money for debt can have on an already suffering population.  In Oklahoma, its parents fare no better than the parents being charged interest on an imaginary contract. According to the Oklahoma Department of Human Services or OKDHS (2010), unpaid child support payments accruing under the Oklahoma order draw interest at the rate of 10% per year from the date they become delinquent.  This means that if a parent loses their job, interest is charged as soon as the first payment is late.  The interest shall be collected in the same manner as the payment upon which the interest accrues, (OKDHS, 2010) There is no consideration of past payment history when charging interest on child support debt.  The State of Colorado provides for interest on missed payments, retroactive support, and adjudicated arrears, (Support Collectors, 2014).  This is debt that will never be excused or eliminated and will always require payment from people who, in all likelihood cannot afford the payments or the debt. 

 

Since cases are only mandated to be reviewed for modification every three years, the debt only grows when a parent is unemployed and cannot afford the payments.  It should not, nor should it ever be, a crime to be poor in the United States.  The current child support system has transformed a program designed to force men who abandon their wives and children into providing for them into a billion dollar a year collection agency.  The interest that the government is charging is a large part of the arrears due that will ever reach a child's pocket if, and when, it is collected.  Charging interest just reiterates the fact that the agencies are operating in order to keep citizens who happen to be parents indebted to the government for a lifetime.

 

References:

 

 Consumer Financial Protection Bureau (2013, December 11). Can a debt collector increase the interest rate on a debt I owe? > Consumer Financial Protection Bureau. Retrieved March 12, 2014, from http://www.consumerfinance.gov/askcfpb/1417/can-debt-collector-increase-interest-rate-debt-i-owe.html

National Conference of State Legislatures (2013, May). Interest on Child Support Arrears. Retrieved March 12, 2014, from http://www.ncsl.org/research/human-services/interest-on-child-support-arrears.aspx

Oklahoma Department of Human Services (2010, September 9). Form 03EN015E-Oklahoma department of human services. Retrieved March 12, 2014, from http://www.okdhs.org/NR/rdonlyres/5A680606-AE27-45FB-9D6C-830C16CB780F/0/03EN015E.pdf

Support Collectors (2014). Colorado child support | Colorado child support enforcement. Retrieved March 12, 2014, from http://www.supportcollectors.com/resources_colorado.php

The Urban Institutue (2003, March). Examining child support arrears in california: The Collectibility Study. Retrieved March 12, 2014, from http://www.urban.org/UploadedPDF/411838_california_child_support.pdf

 

 
 
N.K. Clark

April 9, 2014

Most Americans are aware of child support agencies and their role in families and to societies.  As distorted as that role may seem, the primary reason it claims to exist is to collect money for the betterment of a child's life.  The punishments are extreme and debt can be enormous for those that cannot pay their balance due to the state.  For most, the realities associated with nonpayment of child support, such as license suspensions and imprisonment, are just normal punishments for parents.  This punishment can be enforced over one missed payment or many, depending on the state and the law in that state.  But what about the parents that do everything by the book and still find themselves facing harsh consequences supposedly reserved for the "deadbeat".

The first glimpse into the life of a wrongfully convicted father was experienced in America and brought to us from Houston, Texas.  Clifford Hall was introduced to us a the father who overpaid child support and over visited his child and was still incarcerated by the courts of Houston.  According to Stephan A. Crocket, Jr. of The Root (2014), Hall had the child support payments set up to be taken out of his check through his employer.  For some vaguely explained reason, the payment amounts to be deducted varied from too much to none at all and Hall could not explain the reason for the discrepancies.  Believing that everything was in order with his child support case, he was unaware of the order behind modified.  Because of this he took no action involving the modification.

Because of the discrepancy, Hall was order to pay a lump sum of $3,000.  After the money was paid, the ex-wife in the case requested that Hall pay her $3,000 legal bill and the judge agreed, (Crocket, Jr., 2014).  It is ridiculous to force this father who visited his son regularly and paid support on time, to pay an additional charge of $3,000.  Not only is the additional $3,000 being paid to a lawyer and not being used for the care of his child, he was also facing jail time as well. This means his son will be without has father whom he sees on a regular basis for at least 180 days.  This father may lose job which will result in him really being unable to pay his child support debt in the future.  The late fees interest, court costs, restitution will consume any money that he possibly makes and the child will be made to suffer in the long run.  Currently, Change.org is urging people to sign a petition asking Governor Rick Scott to lift all charges against Clifford Hall, (Crockett, Jr., 2014). 

More recently, a case was brought to us from Ft. Myers, Florida where Daniel McGee has been wrongfully arrested for failure to pay child support.  The twist to the story is that he is, and has been, paying child support twice a month by money being deducted directly from his wages.  Before the arrest, this father faced other punishments enforced by all child support agencies across the country.  Even though this dad says he did pay, he lost his right to drive and his car, (Fox 4 News Staff, 2014).  Mistakes caused by faulty computer systems or incompetent staff is no excuse for punishing parents that are following the rules and paying their support.  Besides the fees associated with paying child support, additional money must be coughed up if one expects to see freedom.

McGee says he is out hundreds of dollars and wasted time, (Fox 4 News Staff, 2014).  And there are no apologies, no money or time compensation, or any other remedy for those wrongfully arrested for failure to pay a debt.  For the record, jailing people who owe debt was outlawed in the United States during the 1830s.  Even after proof was provided that cleared both of these parents of any wrongdoing, the states refuse to admit the failure to impose these arguably unconstitutional sanctions correctly.  This supposed "glitch" claimed by the worker at the Florida Department of Children and Family has cost McGee a total $1,000 to bond out, get his car back, and re-instate hi license, (Fox 4 News Staff, 2014).  Once again, the children cannot benefit from a father behind bars nor one that becomes unemployed due to false arrest.

The child support system in America is broken.  There is no reason that parents should be jailed for owing debt and are more victimized when being jailed for paying the debt.  The system has so much control that mistakes such as the two in Houston and Florida can happen and there are no repercussions.  As long the system remains above the law and in control of citizens who happen to be parents, miscarriages of justice will continue to happen.  It is never okay to be punished for a crime that you did not commit, especially when the crime itself is arguably unconstitutional.  Parents should not be jailed for child support or any other debt.  More importantly, until the laws are changed, parents should not be punished while complying with all of the mandated policies.

 

References:

Crockett Jr., S. A. (2014, January 11). Texas Man Pays Child-Support Debt Yet Still Heads to Prison - The Root. Retrieved March 3, 2014, from http://www.theroot.com/articles/culture/2014/01/texas_man_pays_child_support_debt_yet_still_headed_to_prison.html

Fox 4 News Staff (2014, March 5). Fort Myers dad says he was wrongfully arrested for not making child support payment - WFTX-TV Fort Myers/Naples, FL. Retrieved March 11, 2014, from http://www.jrn.com/fox4now/news/Fort-Myers-dad-says-he-was-wrongfully-arrested-for-not-making-child-support-payment-248675721.html

 

 

 

 
 
N.K. Clark

 

April 2, 2014

 

Falling in love with your significant other often ends up at the wedding chapel and in the maternity ward.  Some live happily ever after and some-well, we know the ending for the rest of us.  There are many laws on the books applying to divorce, child custody issues, and other privileges reserved for traditional families.  But, often times, people skip the chapel and become parents, therefore, falling under different categories in the parental hierarchy.  Those financially stable parents merely demand an amount of financial support and it is paid by the other parent.  The most controversial event usually occurs when parents demand increases in money or visitation. 

 

What about the rest of parents that may have fallen on hard times and need to apply for some type of public assistance.  It is important to know what the system demands in return for the meager monthly benefit of food stamps, substandard health insurance, and if you are lucky, cash.  To be clear, the only way for a parent to qualify for any public assistance where children are involved, is to sign current and future child support rights over to the state.  For example, in Ohio, if a pregnant woman or a parent with children needs to apply for the Ohio Works First program, they must sign a self-sufficiency contract.  In the contract, there is an explanation for the requirement for the child support enforcement agency, (JFS.Ohio.gov).

 

Meaning, without signing the contract, which essentially signs over a parents’ rights to child support payment (current and future), a family may not eat.    For forfeiting current and future child support payments, the state of Ohio pays a cash grant of $434 for a family of four (Floyd and Schott, 2011).  To make matters worse, it is nearly impossible to reclaim your parental rights to child support payments once they are state owned.  If, by chance, a parent seeks to retain their child support rights and claim payments, very specific criteria must be met.

 

Ohio lists the following items as legitimate reasons for termination for child support orders:

  • death of a child
  • child marries
  • child is deported
  • child is adopted
  • child is emancipated
  • child enlists in the military
  • change in legal custody
 

Although the criteria may vary slightly from state to state, the basic laws remain the same and are considered binding contracts.  That makes breaking child support orders nearly impossible without good cause to the state.  So you see, it is very simple to open a child support case but closing it may be only granted if something drastic happens to the child.  Please weigh all option before signing a contract that may last for 18 plus years.  It may not be in the best interest of the child or the family when filing for child support.  Quite suddenly, money that ideally belongs to the parent suddenly and seemingly forever becomes states property.

 

Reference:

 

Department of Job and Family Services (2011, December). Fact Sheet Ohio Works First. Retrieved February 12, 2014, from http://jfs.ohio.gov/factsheets/owf.pdf