Child support enforcement policies need review Polices for low income non-custodial parents counterproductive

By Hazel Bonner

Posted to the South Dakota Prisoner's Support Group by Marletta Pacheco 30 Dec 2002

DLN Issues : American Indians in Jail : Rights and Abuses

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For more information see the DLN Coalition, "American Indians in Jail : Rights and Abuses" Working Group page.

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 December 17.

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 18.

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 marriage.

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 Colorado.

Hazel Bonner is a free lance writer who writes from her home. She can be contacted electronically at; by phone at (605) 343-4467 and by mail at PO Box 3712, Rapid City, SD, 57709-3712.


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