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
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 hbonpidge1@hotmail.com; by
phone at (605) 343-4467 and by mail at PO Box
3712, Rapid City, SD, 57709-3712.
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