Kenya N. Rahmaan
The return of debtor prisons in the US has risen since the legislators implemented child support enforcement, including incarceration for contempt of court when a parent accumulates child support debt. There have been numerous measures to end debtor prisons launched by opponents of debtor prisons’ use over the years. However, no legislator has introduced or implemented bills to end the incarceration of poor people unable to pay a debt. On the other hand, there have been changes to whether a parent can be charged full child support during incarceration.
Traditionally, incarceration was considered voluntary unemployment. That meant parents were still responsible for the total amount of child support and arrears while behind bars. Parents were deeply indebted to the child support system once released from confinement by the government, refusing to lower child support amounts during imprisonment. According to the Office of Child Support Enforcement (OCSE) (2012), the average incarcerated parent with a child support case has $10,000 in arrears when entering state prison and leaves $20,000 in arrears. Due to this, the government has implemented rules that states should follow when collecting child support from parents serving prison sentences.
The Federal Register (the daily journal of the Federal government) is published every business day by the National Archives and Records Administration (NARA) ‘s Office of the Federal Register (OFR) (National Archives). In 2016, the government issued a Final Rule publication addressing when agencies should offer downward modifications to incarcerated parents. The final rule provides that state guidelines under 45 CFR 302.56(c)(3) may not treat incarceration as “voluntary unemployment” in establishing or modifying child support orders (OCSE).
The reasoning supporting this colossal change to policy has been explained in detail by multiple organizations, including the OCSE.
The OCSE stated that:
research finds that uncollectible debt substantially reduces non-custodial parent earnings, which in turn reduces child support payments to their families. One study found that people released from jail are unemployed 9 weeks more per year, and annual earnings are reduced by 40%. On the other hand, reducing uncollectible debt can increase payments.
The final rule ordered states to amend their policies when dealing with incarceration and child support modifications based on the evidence. Specifically, the new law prohibits states from legally barring modification of support obligations during incarceration (OCSE). Unfortunately, nine states refuse to follow the rule and routinely deny parents’ requests for a downward change during imprisonment. Currently, the list of the following states replied ‘No’ when reporting to the government if they allow reductions for imprisoned parents:
- Montana
- South Dakota
- Kansas
- Oklahoma
- Arkansas
- Kentucky
- Tennessee
- Virginia
- South Carolina
Montana, Kansas, and Tennessee do not consider incarceration a significant change in circumstance. According to Montana.gov, a modification can only be granted if there is a 25% change in financial status unrelated to imprisonment and the incarcerated non-custodial parent waives their right to appear in person at the hearing. Legislators defend this stance based on a case lawmakers argued and decided on in 1993. In the case of Mooney v. Brennan, 848 P.2d 1020, the judges decided that,
the father should not be able to escape his financial obligation to his children simply because his misdeeds have placed him behind bars. The meter should continue to run. Accordingly, we hold the father’s support obligation continues to accrue during his incarceration.
This precedence is not only outdated; it directly violates the rules listed in the Final Register. After the Feds issued new regulations, states updated their guidelines to comply with the federal government.
Source: National Conference of State LegislaturesThe government provided instructions on correcting the issue for states that considered incarceration, particularly after 180 days of voluntary unemployment. The OCSE (2012) directed states to conform their policies within one year after completing the first quadrennial review of the state’s guidelines that commences more than one year after the final rule’s publication. Montana and the other states have decided to ignore the overseers of child support guidelines. Due to the lack of accountability within the child support system, no penalties have been imposed against these rogue jurisdictions.
South Dakota ignores the final rule by imputing income justification, blatantly disregarding the final law, and considering incarceration as involuntary unemployment. In 2007, the South Dakota Supreme Court denied an appeal filed in the Gisi v. Gisi case after the lower court approved the father for a downward modification. According to CaseMine.com, it (the court) recognizes the reduced income of the obligor as a result of incarceration by imputing a minimum wage income instead of the obligor’s prior income. Still, it does not relieve the obligor of child support payments due to that incarceration. Imputing income is another, once an acceptable practice in child support cases, was revised by the federal government.
To impute one’s income for calculating child support when a parent is unemployed has led to hundreds of thousands of cases having amounts set that parents could not afford. The Legal Dictionary defines the act of imputing income as treating an individual’s income as more significant than what he is earning. By imputing income, most child support amounts are set too high for parents to pay, thus resulting in insurmountable arrears. And this was especially true for parents who were in prison. The new rule required that those tasked with setting child support amounts consider several items.
According to the Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs (2016), Section 302.56 Paragraph (c)(1), child support guidelines must provide the child support order is based on the non-custodial parent’s earnings, income, and other evidence of ability to pay that:
- takes into consideration all earnings and income of the non-custodial parent (and, at the state’s discretion, the custodial parent);
- takes into consideration the basic subsistence needs of the non-custodial parent (and at the state’s discretion, the custodial parent and children) who has a limited ability to pay by incorporating a low-income adjustment, such as a self-support reserve or some other method determined by the state; and
- if imputation of income is authorized, take into consideration the specific circumstances of the non-custodial parent.
If a parent is incarcerated and the agency uses imputed income, the only solution is to lower the child support payment based on this long list of criteria. States that disregard these critical regulations are violating the rights of the parents and the children. Although Oklahoma, Virginia, Arkansas, and South Carolina do not have an absolute ban on prisoners filing for a downward modification, the states use imputed income as a basis for denying changes.
Kentucky has declared that any modification filed by an imprisoned parent will face denial automatically. The reasoning behind this is not different from the other non-complying states. According to Helmer & Somers Law, PLLC (2021), Kentucky argues that their income reduction is due to voluntary reasons. Translated, that means that a parent has willfully broken the law, which resulted in their unemployment. Therefore, it is their fault that they cannot afford to pay. And this is one of the very reasons the federal government reformed the incarceration guidelines. States should not be permitted to openly snub federal guidelines in an attempt to appear harsher towards parents who cannot afford the payments.
This denial only prolongs the parents’ certainty of being released from prison, deeply indebted to the government or the other parent for child support. Parents already facing obstacles face more roadblocks when child support debt accumulates. When legislators refuse to implement and follow child support guidelines issued by the federal government, they violate the rights of parents and children. Child support officials have updated case management criteria to free a parent from facing unmanageable debt once released, which the system will probably declare uncollectable. Child support arrears trigger enforcement that hinders newly freed parents from gaining employment to provide for their children. Parents face license suspensions, adverse credit reporting, and possibly re-arrest based on the child support debt owed. Incarcerated parents are supposed to have child support obligations reduced. Every state needs to follow these rules and guidelines for the sake of the children and the parents.
References:
Administration for Children and Families. (2016). Flexibility, efficiency, and modernization in child support enforcement programs (93492). Department of Health and Human Services. https://www.govinfo.gov/content/pkg/FR-2016-12-20/pdf/2016-29598.pdf
Court Listener. (1993). Mooney v. Brennan, 848 P.2d 1020 – CourtListener.com. https://www.courtlistener.com/opinion/883013/mooney-v-brennan/
Helmer Somers Law, PLLC. (2020, March 6). Do incarcerated parents pay child support in Kentucky? First Green. Retrieved February 19, 2021, from https://helmersomerslaw.com/do-incarcerated-parents-pay-child-support-in-kentucky/
Legal Dictionary. (2015, August 15). Imputed income. https://legaldictionary.net/imputed-income/
Office of Child Support Enforcement. (2012, June 20). “Voluntary unemployment,” Imputed income, and modification policies for incarcerated NCPs chart. https://www.acf.hhs.gov/archive/css/outreach-material/voluntary-unemployment-imputed-income-and-modification-policies
Office of Child Support Enforcement. (2012, June). Realistic child support orders for incarcerated parents. https://www.acf.hhs.gov/sites/default/files/documents/ocse/realistic_child_support_orders_for_incarcerated_parents.pdf
Office of Child Support Enforcement. (n.d.). Modification for incarcerated parents. https://www.acf.hhs.gov/sites/default/files/documents/ocse/fem_final_rule_incarceration.pdf
Supreme Court of Kansas. (1998). 265 Kan. 715. Thurmond v Thurmond, 79731, 962. https://www.leagle.com/decision/1998980265kan7151933
