Part I of III
By Hazel Bonner
RAPID CITY - A man sat at the work-release
facility of the Pennington County
Jail this Christmas Day. He was denied
a furlough to be home with his children.
His crime was being poor and not paying
enough for child support to keep him
from being arrested for the arrears
that had accumulated.
South Dakota follows policies on collection
of child support that apply regardless
of the income status of the non-custodial
parent. These policies have little
to do with "best interest of
the child," and have been declared
counterproductive by the Federal Office
of Child Support Enforcement..
The man who sat in jail on Christmas
Day is one example of the inequities
in our system. He sat in jail because
he did not have $600 cash to pay a
bond. That money, would allow him
to go free and would have gone toward
the back child support, if he had
been able to pay it. He remains in
jail solely because of his poverty.
The father has an obligation for support
of two children by a previous marriage.
He resides in Pennington County with
his second family, consisting of a
son, a daughter and step-daughter
and his present partner. Back support
in Pennington County was $1,000. He
also had arrearages in Lawrence County
for $6,000 for the same children.
The two cases were not consolidated.
He started a job in October and his
wages were being garnished for child
support. A 50 percent deduction from
available pay (after mandatory deductions
and dependent deductions) is authorized
by SDCL 25-7A-32. His pay stub for
November 15, showed earnings of $9.00
per hour for 20 hours for gross earnings
of $180.00. Federal tax totaled 13.77
and a child support payment of $73.78
was deducted. That left him with net
pay of $92.85. His weekly wages and
the child support payment would increase
based on hours worked which varied
from 20 to 40 hours per week.
During his third week of work on that
job, he was arrested for back child
support. He was held in jail on a
$1,000 cash bond, leading to his being
terminated from employment. He was
placed in the work release program
to do job search for a new job.
At a show cause hearing on December
13, his cash bond was reduced to $600.
He does not have the cash and has
been unable to obtain it from family
and friends. He had a show cause hearing
scheduled on December 16 in Lawrence
County. He located a job here to begin
Because he had not paid his cash bond
here, he was not allowed to go with
his partner for the show cause hearing
in Deadwood. The jail would not transport
him. A warrant was issued for failure
to appear and he was picked up at
the work-release facility the evening
of December 16. He had a hearing in
Deadwood on December 17 and missed
his first day of work at the new job.
Lawrence County gave him a personal
recognizance bond on the $6,000 debt.
He was returned to the Pennington
County work release facility. He was
able to start his new job on December
As long as he remains in the work
release facility, he will pay them
25 percent of his gross earnings.
In addition he is charged for other
things. He was given three UA tests
the first week for which he was charged
$27. Once garnishment is set up for
this employer he will pay child support
of 50 %, deducted from his check before
receipt. He will be allowed $35 per
week for his own use.
He received his first check on December
24. His wages are $7.50 per hour and
he was paid for 24 hours. His gross
pay for the week was $180. After federal
tax, his net pay was $166. Out of
that he had to pay the jail $45 for
his room and board. He received $35
for his needs for the week. The remainder
of $96 went into an account at the
jail. Once garnishment is set up with
this employer, 50 percent of his net
pay per week will be deducted from
his check for child support.
His present partner asks, "Did
it make sense for him to lose a $9.00
per hour job out of which he had started
paying child support? After three
weeks of not working, during which
he could not continue making payments
on back child support, he now is working
at $7.50 per hour. But because we
are poor and do not have $600 to pay
to get him out of work release, he
now has to support the jail, as well
as children from his previous marriage,
leaving almost nothing for us."
It is difficult for the mother to
work, because of the need to care
for three children. When the father
is home, she could work alternating
shifts, removing the need for child
care. The family is left without any
income and a father who was not with
his children for Christmas. Both children
asked only for their father to be
home with them for Christmas, but
that did not happen.
While this father had a sporadic work
history, he paid child support when
he was working. The fact that he had
no income part of the time was not
considered by Child Support Enforcement
(CSE). Under state law, CSE presumes
that every parent, regardless of actual
income, could be employed at minimum
wage for 40 hours per week and that
is the earnings that are imputed to
the non-custodial parent regardless
of actual earnings. That is authorized
by SDCL 25- 7-6.4. This practice is
known as imputing income.
All states allow retroactive support
from the date of an order to be collected
for a statutory period of time. A
majority of states count child support
arrearages for two - three years.
South Dakota is one of only two states
that counts arrearages for six years.
The Department of Health and Human
Services Office of Inspector General
issued a report entitled, "The
Establishment of Child Support Orders
for Low Income Non-custodial Parents".
That report confirmed "what common
sense should tell us. 60 percent of
non-custodial parents (NCP) who do
not pay child support, have a limited
ability to pay support based on their
income levels, employment history,
educational levels and rates of institutionalization.
These non-custodial parents are known
in the child support community as
`dead-broke' rather than `dead beat'".
That report pointed out that contrary
to public belief, the use of minimum
orders, imputing income, charging
retroactive support and criminal prosecution
is counterproductive. More low-income
non- custodial parents fail to pay
support when a state uses these methods.
For example 44 percent of orders against
low-income persons using imputed income
generated no support in a 32-month
period. In contrast, only 11 percent
of orders which did not use imputed
income generated no payment.
South Dakota does have one of the
highest rates of collection of child
support and the state justifies using
these methods because of their success.
The success in collecting child support
does not account for hidden costs.
The amount of money collected does
not take into account the suffering
of children in second families and
the fact that for a poor NCP, the
collection policies will result in
loss of their freedom solely because
they cannot pay cash bonds to apply
toward their child support debt. Some
families have to receive TANF and
food stamps because of the child support
collection for children from a previous
The poorest children in South Dakota,
those who reside in families who are
poor enough to receive Temporary Assistance
to Needy Families (TANF), receive
no direct benefit from child support
collected in their behalf. TANF replaced
the old Aid for Dependent Children
(AFDC) program. AFDC rules required
states to pass through the first $50
in child support to the family without
it affecting their AFDC cash assistance.
TANF allows states to pass through
none, some or all of child support
payments collected, at the option
of the state. South Dakota is one
of 24 states that passes through no
child support to the family. Sixteen
states continue to pass through $50.
Four states pass through all child
support collected, including neighboring
Minnesota. Six states have varying
policies depending on the status of
the recipient; most pass through more
than $50 but not all support collected.
A large proportion of low income NCPs
in South Dakota are Indian. Being
jailed for non payment of child support
is a regular occurrence for them.
A special problem for Indians is the
very high rate of incarceration of
parents. Parents in prison face a
special burden when they are released
and attempt to rebuild their families.
Part II of this series is entitled
"Coming home - many doors closed."
It will look at changes in federal
law regarding ineligibility for food
stamps and TANF for felony convictions,
ineligibility for federal housing
assistance and federal financial assistance
for secondary education for certain
convictions, and barriers to employment.
Part III will look at child welfare,
including termination of parental
rights and special programs for incarcerated
parents, including a long distance
dads program in a North Dakota prison
and a special program in neighboring
Hazel Bonner is a free lance writer
who writes from her home. She can
be contacted electronically at firstname.lastname@example.org;
by phone at (605) 343-4467 and by
mail at PO Box 3712, Rapid City, SD,