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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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