There are many people in the United States in support of incarcerating parents when they become delinquent on child support payments.  Of these many, some refuse to acknowledge that locking people away simply because cannot afford a child support debt, has long since been outlawed.  In fact, almost every state and the federal government has implemented child support laws and guidelines specifically stating that a person must willfully fail to pay support.  Unfortunately, these laws are purposely ignored when it applies to the arrest of child support debtors in the United States.  To begin, the federal government lists its criteria justifying arrests based on child support issues on several government webpages.  According to Office of the Attorney General (1997), the Child Support Recovery Act of 1992, Pub. L.No. 102-521, makes the willful failure to pay past due support obligation with respect to a child residing in another state a federal offense.  There are additional elements that make nonpayment of child support a crime such as a parent being aware of the past due amount or owing a balance of greater that $5,000, but none of the criteria should be considered if the key element of the law has not been broken.

Unfortunately, for too many parents, federal law enforcement ignores the guidelines enacted by our own government officials when executing arrest warrants on alleged ‘deadbeat’ parents.  This is clear when scrutinizing the arrest record of William Anthony Robson, a/k/a Rick Albrecht.  Mr. Robson was arrested in 2011 in Trumbell County, CT.  Aaron Leo of ThePatch.com (2011) reported that Robson made no voluntary child support payments.  The Federal government lists other criteria that prosecutors must prove were violations to the Child Support Recovery Act before a parent can be arrested and convicted of breaking the law.  However, these violations do not include failure to make voluntary child support payments.

According to the Office of the Attorney General (1997), the US government must prove that the defendant:

  1. Having the ability to pay,

  2. Did willfully fail to pay,

  3. A known past due (child) support obligation,

  4. Which has remained unpaid for longer than one year

OR is an amount greater than $5, 000

  1. For a child who resides in another state.

In the Robson case, the family had previously resided in New York but moved to another state.  The choice to move, according to the article in ThePatch,com was a decision made by the mother.  The state could not have faulted the different residencies to the father when it applies to the enforcement of a child support order.  His ex-wife moved to Connecticut with the couple’s four minor children, (Leo, 2011).  Tom Carson of the U.S. District Court in Hartford made another statement which contradicts the federal law.  Mr. Carson said that minimal payments have been made through wage garnishments and seized state income tax refunds, (Leo, 2011).  This means that, although, Robson was accused of failing to voluntarily pay child support, some child support had been paid.  As it relates to the federal statute, the father in this case, does not appear to have broken any law.  However, he was held with no bond after his initial court appearance.  If convicted, Robson faced a maximum jail term of two years and a maximum fine of $250,000, (Leo, 2011). 

There are barriers such as unemployment, homelessness, and disabilities that can prevent a person from paying any type of debt, including child support debt.    These hindrances do not mean that a person has willfully failed to pay, but merely that they could not afford to pay.  The difference must be distinguished.  Willfulness to dodge making payments must be proven before any person is jailed and held without any type of bail.  The federal government has set the stage for the states to violate laws when pursuing indebted parents. 

One of these states that blatantly break the law with no repercussions is Pennsylvania. The state with the motto of virtue, liberty, and independence is a state that is immodest about executing child support ‘sweeps’ and arresting delinquent parents while clearly breaking the law.  This state is specific on its incarceration policies in conjunction with failure to pay child support.  Pennsylvania Code (2007) specifically states that an obligor (noncustodial parent) who is in civil contempt cannot be incarcerated without the present ability to fulfill the conditions the court imposes for release.  In other words, the noncustodial parent must be able to pay the court imposed support amount yet refuses to pay the money owed.  Being able to afford to pay the child support bill but being financially unable to do so does not constitute breaking the law.  This extremely important statue is often ignored when pursuing these indebted Pennsylvanians. 

As recently as May of 2015, Philly.com reported the arrest of nine people during a sweep conducted during the early hours in Montgomery County.  The defendants were accused of skipping out on a total of $66,382 in child support for nine kids, (Alex Wigglesworth, 2015).  There is no mention of the financial standing of the arrested citizens.  The article does not include employment status, living situations, or physical/mental disability conditions which could hinder a person from obtaining and sustaining long term employment that would help pay the child support payment.   As the law states, the person being arrested must be able to comply with the court demands in order to be in violation of contempt of court.  The child support system operates on a guilty until proven innocent system.  In these cases, innocence is waged on the amount of money a person can scrounge together in order to purchase their freedom.  There is no consideration of the laws in Pennsylvania, or any other state, operating these modern day debtors’ prisons across the United States.  This state, as far as child support enforcement is concerned, greatly fails in living up to its state motto.

Take for instance, the state of New Jersey.  This state is notorious for conducting child support sweeps.  In accordance with federal law and the law in the majority of all other states, a parent must purposefully fail to pay support in order to face punishment.  The New Jersey Supreme Court ruled in 2006 that arrested citizens must be advised of their right to an attorney during the court proceedings.  The Legal Services of New Jersey Law (LSNJLAW) explains, in detail, the process by which a parent may be arrested and the duties of the hearing officers when pursuing the arrest and prosecution of a litigant.  According to LSNJLAW (2013), if the hearing officer finds that the noncustodial parent does have the ability to pay and is willfully refusing to do so, the hearing officer will make a recommendation to the court.  The recommendations include placing the case in a bench warrant status or for the hearing officer to issue an actual bench warrant.  The key criteria is that the person must be willfully failing to follow the child support order.  The recent arrests of 25 people during a July, 2015 child support sweep are questionable, if not absolutely illegal.  Of the $440,712.91 in allegedly owed child support debt, the jailed parents only paid a total of $11,040 in order to buy their freedom.  In fact, only one person paid the total amount of child support due, while six people arrested could not pay a single dollar towards their child support debt.  The local sheriff bragged about the strong sting stating that the roundup was a great success as far as the statistics show, (Carly Kilroy, 2015).  Statistically, these arrests were actually a failure since approximately .02% of the child support debt was collected.  The failures continue when considering that most of the people arrested paid the bare minimum to escape imprisonment.  One arrestee paid a whopping $50 out of the total owed child support debt of $22,106.  This is further proof that New Jersey is violating the law of the land by incarcerating people who do not have the means to pay the exorbitant amounts of child support debt.

Jeffersonville, Indiana is one of the most recent cities that have executed arrest warrants on parents who have fallen behind on child support payments.  Lauren Adams of WKLY.com reported that the Clark County Sheriff’s Department said 32 parents owing $339,348.76 have been arrested.  There is nothing in the article that mentions that the rights of the arrested parents have been preserved before, during, or after the raid.  It is clear that the range of debt owed varied from a few hundred to tens of thousands of dollars, however, there is no mention of any of the parents purposefully ignoring the child support order.  The law stipulates, according to the Office of the Clark County Prosecuting Attorney, that the Child Support Division is required to file a Verified Information form for a hearing on a Rule to Show Cause when a person is delinquent in child support payments. 

This verification is necessary because it assists in proving that a person has the means to pay support but willfully fails to pay the amount due.  Once notification has been received by the obligor or defendant, he or she is supposed to be granted their day in court to show why the child support has not been paid.  At the hearing, it must be established that the person was aware of the support order.  Unfortunately, there is no proof that notification was given to any of the people arrested.  By his own account, School Resource Officer, Kevin Fisher, stated that the only things given on the warrants is a date of birth and an address, (Adams, 2015).  Once could argue that the address provided means that notification has probably been provided to the obligor.  However, Fisher continues by stating that those addresses on the warrants are usually not very reliable, (Adams, 2015).

Nevertheless, the parents were hauled into jail over the owing of a child support debt.  Once at the hearing, it must be established that the person had the ability to pay and willfully failed to pay, (Clark County Prosecuting Attorney).  This clause seems to have been ignored before, as well as after, the arrests.  This is evident based on the statement offered by one of the detectives interviewed by Stephen Johnson of WDRB.com.  Detective Maples said no money had been collected, (Johnson, 2015).  Statistically, most parents who owe child support debt are unemployed or underemployed.  Those barriers do not definitely establish a willfulness in failing to pay support, but this accusation must still be proven by the court system.  Once parents are jailed, the courts will pass down judgment and or set up on a payment plan, (Johnson, 2015).  This is essentially jailing people that cannot afford to a pay a government owed debt.   The operation of debtors’ prisons has been outlawed since the 1800s, but have mysteriously resurfaced in the American child support system with almost no objections.

We, as US citizens, must demand that those entrusted with the authority enforcing the child support guidelines and regulations follow the law of the land.  These requirements should apply from the top of the judicial echelon, the federal and state law makers down to the child support worker and the arresting officer.  It is more than apparent that the majority of the people arrested during these child support roundups have not broken any laws.  The proof can be explained in the dismal collection amounts that were reported after the arrests.  If people had the means to pay the support, the hundreds of thousands of dollars owed would have surely been swapped in exchange for freedom.  Since this is not the case in these instances, and many others across the country, these people should be released immediately.  The child support system must have accountability when enforcing the laws.  There are too many lives at stake to accept anything less than absolute constitutionality and legality from our governments.

References:

Adams, L. (2015, July 29). School resource officers track down deadbeat parents | Local News - KCCI Home. Retrieved from http://www.kcci.com/news/school-resource-officers-track-down-deadbeat-parents/34419182

Johnson, S. (2015, January 28). Clark Co. sheriff's deputies use unusual manpower to find 'deadb - WDRB 41 louisville news. Retrieved from http://www.wdrb.com/story/29653299/clark-co-sheriffs-deputies-use-unusual-manpower-to-find-deadbeat-parents

Kilroy, C. (2015, July 29). Somerset county: Non-Support warrant sweep results in 25 Arrests | Basking ridge, nj patch. Retrieved from http://patch.com/new-jersey/baskingridge/somerset-county-non-support-warrant-sweep-results-25-arrests

 Legal Services of New Jersey. (2006, June). LSNJLAW - New Jersey Supreme Court Issues Ruling About Right to a Lawyer in Child Support Enforcement Hearings. Retrieved from http://www.lsnjlaw.org/Family-Relationships/Child-Support/General-Information/Pages/NJSupreme-Court-Ruling.aspx

Leo, A. (2011, January 25). Trumbull man allegedly owes $175,000 in child support | Patch. Retrieved from http://patch.com/connecticut/trumbull/trumbull-man-allegedly-owes-175000-in-child-support

Prosecutive guidelines and procedures for the child support recovery act of 1992 | AG | Department of Justice. (n.d.). Retrieved from http://www.justice.gov/ag/prosecutive-guidelines-and-procedures-child-support-recovery-act-1992

The Clark County Prosecuting Attorney. (n.d.). Child support: How is the support order enforced? Retrieved from http://www.clarkprosecutor.org/html/child/child2b.htm

The Pennsylvania Code. (2007). 231 Pa. Code Rule 1910.25-7. Indirect criminal contempt. Incarceration. Retrieved from http://www.pacode.com/secure/data/231/chapter1910/s1910.25-7.html

Wigglesworth, A. (2015, May 6). Nine arrested in montco child-support sweep; more sought. Retrieved from http://www.philly.com/philly/news/Nine_arrested_Montco_child_support_sweep.html