Child support orders are almost always expressed in fixed dollar amounts, and over time the needs of the child and the financial circumstances of one or both parents may change. However, without periodic modifications, child support obligations can become inadequate and/or inequitable or may not correspond to the noncustodial parent's income and/or ability to pay.
Under current law (pursuant to P.L. 109-171, the Deficit Reduction Act of 2005), states are required to review and, if appropriate, adjust child support orders at least once every three years in cases in which the family is receiving Temporary Assistance for Needy Families (TANF) benefits. In the case of a non-TANF family, one of the parents has to request a review within the three-year time frame for a review and modification to occur. If a request for review and modification is made outside the three-year cycle, the requesting party must demonstrate that there was a substantial change in circumstances. Child support modifications must be in accordance with a state's child support guidelines. The rationale behind review and modification of child support orders is to ensure that these orders are equitable, sufficient, and commensurate with a parent's income and/or ability to pay.
When child support modification policies and procedures are not effective, child support debt increases. In FY2014, $114.8 billion in child support arrearages (i.e., past-due child support—the amount of child support that remains unpaid) was owed to families receiving Child Support Enforcement (CSE) services, but less than 7% ($7.6 billion) of those arrearages was actually paid. Child support debt, in the aggregate, negatively impacts children, custodial parents, and noncustodial parents, and it forces states to expend greater resources on collection and enforcement efforts.
Large child support arrearages result in millions of children receiving less than they are owed in child support, reduced cost-effectiveness of the CSE program, and a perception that the CSE program does not consider the financial situation of low-income noncustodial parents, many of whom may be in dire economic situations. Child support arrearages often (1) hinder the noncustodial parent's ability to make regular child support payments in full and on time; (2) become a source of uncollectible debt; (3) cause added friction in the relationship with the child's other parent, which may negatively impact the noncustodial parent-child relationship; and (4) block work opportunities for noncustodial parents because past-due child support obligations are reported to credit reporting agencies, which provide the information, upon request, to employers.
Although many custodial parents agree to a certain extent that some noncustodial parents are "dead broke" rather than "deadbeats," they contend that the states and the federal government need to proceed with caution in lowering child support orders for low-income noncustodial parents. They argue that child support is a source of income that could mean the difference between poverty and self-sufficiency for some families. These custodial parents emphasize that lowering the child support order is likely to result in lower income for the child and argue that even if a noncustodial parent is in dire financial straits, he or she should not be totally released from financial responsibility for his or her children.
There is widespread agreement that preventing the buildup of unpaid child support through early intervention rather than traditional enforcement methods is essential to the future success of the CSE program. Other public policy concerns include examining whether garnishment limits are too high; deciding whether incorporating work-oriented services into the basic CSE program would result in more consistent and timely child support payments; and providing equitable enhanced services and assistance to vulnerable noncustodial parents, regardless of whether they are in jail or prison, unemployed, underemployed, or injured or sick. Commentators maintain that addressing these concerns may help many low-income children.
Child support is the cash payment that noncustodial parents are legally obligated to pay for the financial support of their children. It is generally established when parents divorce or separate or when the custodial parent applies for welfare.1 It is usually paid on a monthly basis. Child support payments enable parents who do not live with their children to fulfill their financial responsibility to their children by contributing to the payment of child-rearing costs.
The Child Support Enforcement (CSE) program was enacted in 1975 as a federal-state program (Title IV-D of the Social Security Act) to help strengthen families by securing financial support for children from their noncustodial parent on a consistent and continuing basis and by helping some families to remain self-sufficient and off public assistance.
The CSE program is administered by the federal Office of Child Support Enforcement (OCSE), which is in the Department of Health and Human Services' (HHS's) Administration for Children and Families (ACF). The federal government and the states2 share CSE program costs at the rate of 66% and 34%, respectively.
OCSE does not provide services directly to families. Instead, it partners with federal, state, tribal, and local governments and others to promote parental responsibility so that children receive reliable support from both of their parents as they grow to adulthood. OCSE helps CSE agencies in the states and tribes develop, manage, and operate their CSE programs effectively and according to federal law.
The CSE program provides eight major services on behalf of children, which include establishing, reviewing, and modifying child support orders.3 The child support order is established administratively by a state/county CSE agency or through a state court (or mixture of both—quasi-judicial). The Family Support Act of 1988 (P.L. 100-485) required states to use their state-established guidelines in establishing child support orders.4
Child support guidelines are a set of rules and tables that are used (by states and tribes) to determine the amount of the child support order. Child support guidelines are designed to (1) protect the best interests of the children by trying to ensure that the child or children in question continue to benefit from the financial resources of both parents in situations in which the parents go their separate ways and (2) make the calculation of child support fair, objective, consistent, and predictable (which in many instances has the added benefit of reducing conflict and tension between the parents).
Child support guidelines were created to address three major problems in the issuance of child support orders. First, guidelines were needed to bring uniformity and consistency to the issuance of child support orders, so as to result in greater fairness to families. Second, the predictability resulting from guidelines was intended to promote settlement and reduce conflicts, to the benefit of both the parties and the courts. Third, research at the time (i.e., during the 1980s) showed that orders were too low to reflect the real needs of children.5
Child support guidelines are part of a process that orders a noncustodial parent to pay financial support for the care of his or her children based on the parent's income (and other factors) and that allows the child to share in the increases (or decreases) in the parent's income as if the parent and child lived together.6 The guidelines also permit the courts to set child support without the necessity of a review of individual costs of care. The amount of child support is based primarily on how much the parent would share with the child if the parent and child lived together. States decide child support amounts based on the noncustodial parent's income or on both parents' income; other factors may include the age of the child, whether a stepparent is in the home, whether the child is disabled, and the number of siblings. Guidelines ensure the adequacy of child support orders by taking into account economic evidence on the cost of raising children, thereby improving children's well-being.7
Guidelines development requires making value judgments and balancing competing interests to allocate limited economic resources between children, parents, other relatives, the state CSE agency, courts, taxpayers, and society at large.8
States currently use one of three basic types of guidelines to determine child support award amounts (i.e., the child support order):
Information was not available for Puerto Rico and the Virgin Islands.9
According to the OCSE, "setting accurate initial child support orders helps to ensure regular payments of child support, facilitating two key goals: economic stability and paternal [or maternal] engagement."10 Child support orders almost always are expressed in fixed dollar amounts, and over time the needs of the child and the financial circumstances of one or both parents may change. However, without periodic modifications, child support obligations can become inadequate and/or inequitable, or they may not correspond to the noncustodial parent's income or ability to pay. The rationale behind review and modification of child support orders is to ensure that child support orders are equitable, sufficient, and commensurate with a parent's income and/or ability to pay.
It is important for custodial parents facing higher child-rearing costs or other substantial changes in circumstance (e.g., increased housing or living expenses) to seek a modification so their children's needs are sufficiently met. Custodial parents who know that the noncustodial parent is experiencing a higher standard of living (e.g., higher-paying job, promotion) are advised to request a modification so their children can share in the other parent's good fortune.
Likewise, it is important for noncustodial parents facing job loss or other substantial changes in circumstances to seek a modification to their order quickly so they do not fall behind in their payments and thereby have to contend with child support arrearages (i.e., past-due child support payments).11 When child support modification policies and procedures are not effective, child support debt increases. In FY2014, $114.8 billion in child support arrearages was owed to families receiving CSE services, but less than 7% ($7.6 billion) of those arrearages was actually paid. Child support debt, in the aggregate, negatively impacts children, custodial parents, and noncustodial parents, and it forces states to expend greater resources on collection and enforcement efforts.12
From 1975, when the CSE program was enacted (by the Social Services Amendments of 1974; P.L. 93-647) until 1988, the only way to modify a child support order was to require a party to petition the court for a modification based on a change in circumstances. What constituted a change in circumstances sufficient to modify the order depended on the state and the court. The person requesting modification was responsible for filing the motion, serving notice, hiring a lawyer, and proving a change in circumstances of sufficient magnitude to satisfy statutory standards. The modification proceeding was a two-step process; the court first determined whether a modification was appropriate and then determined the amount of the new obligation.
Especially during the early 1980s, a major issue in the modification of orders was the practice of retroactive modifications. Most of these retroactive modifications had the effect of reducing the amount of child support ordered. Thus, for example, an order of $150 a month for child support, which was unpaid for 36 months, should accumulate an arrearage of $5,400. However, if the noncustodial parent was brought to court, having made no prior attempt to modify the order, the order might be reduced to $100 a month retroactive to 36 months prior to the date of modification. This retroactive modification would reduce the arrearage from $5,400 to $3,600.13
Cases such as this, which had serious impacts on custodial parents and their children, convinced Congress to take action. Thus, in 1986 Congress passed legislation that required states to change practices involving modification of child support arrears.14 Pursuant to Section 9103 of the Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509; Section 466(a)(9) of the Social Security Act), often referred to as the Bradley Amendment (named after former Senator Bill Bradley of New Jersey), state child support orders may not be retroactively modified, except back to the date of service on the other party.15 Pursuant to the Bradley Amendment, a child support payment becomes a judgment by operation of law when it becomes due and unpaid, and it is entitled to full faith and credit (in the originating state and in any other state) to be enforced as any other judgment of the initiating state.16
The 1986 provision greatly restricted retroactive modification to make it more difficult for courts and CSE agencies to forgive or reduce arrearages. More specifically, child support orders can be retroactively modified only for a period during which there is pending a petition for modification and only from the date on which notice of the petition has been given to the custodial or noncustodial parent.
The Family Support Act of 1988 (P.L. 100-485) required states both to use guidelines as a rebuttable presumption17 in all proceedings for the award of child support and to review and adjust18 child support orders in accordance with the guidelines. These provisions reflected congressional intent to simplify the updating of child support orders by requiring a process in which the standard for modification was the state child support guidelines. They also reflected recognition that the traditional burden of proof for changing the amount of the child support order was a barrier to updating. The 1988 law addressed the need for states to at least expand, if not replace, the traditional "change in circumstances" test as the legal prerequisite for updating support by making state guidelines the presumptively correct amount of child support to be paid.19
To ensure that the use of the guidelines would result in appropriate child support award amounts, the Family Support Act required states to review their guidelines at least once every four years and have procedures for review and modification of orders, consistent with a plan indicating how and when child support orders are to be reviewed and modified. Review could take place at the request of either parent subject to the order or at the request of a state child support agency. Any modification to the award had to be consistent with the state's guidelines, which were required to be used as a rebuttable presumption in establishing or adjusting the child support order.
In addition, the Family Support Act required states to review all orders being enforced under the CSE program within 36 months after establishment or after the most recent review of the order and to adjust the order in accordance with the state's guidelines. It required review in child support cases in which child support rights were assigned to the state,20 unless the state had determined that review would not be in the best interests of the child and neither parent had requested a review. This provision applied to child support orders in cases in which benefits under the TANF, foster care, or Medicaid programs were currently being provided. It did not include child support orders for former TANF, foster care, or Medicaid cases, even if the state retained an assignment of support rights for arrearages that accumulated during the time the family was on welfare. In child support cases in which there was no current assignment of support rights to the state, review was required at least once every 36 months only if a parent requested it. If the review indicated that modification of the support amount was appropriate, the state had to adjust the award accordingly.21
The Family Support Act also required states to notify parents receiving CSE services of their right to request a review, of their right to be informed of the forthcoming review at least 30 days before the review began, and of any proposed modification to the award22 or determination that there should be no change in the award amount. In the latter case, the parent was to be given at least 30 days after notification to initiate proceedings to challenge the proposed adjustment or determination.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193; referred to as the 1996 welfare reform law) somewhat revised the review and modification requirements. It slightly modified the mandatory three-year review of child support orders to permit states some flexibility in determining which reviews of welfare cases should be pursued and in choosing methods of review. States had to review orders every three years (or more often at state option) if either parent or the state requested a review in welfare cases or if either parent requested a review in non-welfare cases. The law also required states to notify parents of their review and adjustment rights at least once every three years. It gave states the option of using one of three different methods for adjusting orders: (1) the child support guidelines; (2) an inflation adjustment in accordance with a formula developed by the state; or (3) an automated method to identify orders eligible for review followed by an appropriate adjustment to the order, not to exceed any threshold amount determined by the state. If either an inflation adjustment or an automated method was used, the state had to allow either parent to contest the adjustment.
The most recent changes to provisions related to the modification of child support orders were part of the Deficit Reduction Act of 2005 (P.L. 109-171). P.L. 109-171 eliminated state flexibility and discretion and instead required states to adjust child support orders of TANF families once every three years (i.e., returned to the 1988 Family Support Act policy).23 For more information, see the "Current Policy" section below.
Under current law (pursuant to P.L. 109-171),24 states are required to review and, if appropriate, adjust child support orders at least once every three years in cases in which the family is receiving TANF assistance. In the case of a non-TANF family, the CSE agency is to review the child support order at least once every three years at the request of either parent. Moreover, either parent may request a review at any time based on a substantial change in circumstances. States must notify parents of their review and modification rights at least once every three years. Depending on the state, a child support order may be modified through an administrative process or through a judicial process (or a combination of both approaches).25
After child support is initially ordered by the CSE agency or the court,26 a modification to the child support order generally occurs when any of the following situations occur: the financial situation of one or both parents changes; the support order is no longer adequate to meet the needs of the child; there is no provision for medical support; or the circumstances of either parent or the child have changed substantially.27
States can use one of three different methods for adjusting orders: (1) the state child support guidelines; (2) an inflation adjustment in accordance with a formula developed by the state; or (3) an automated method to identify orders eligible for review followed by an appropriate adjustment to the order, not to exceed any threshold amount determined by the state. If a state uses either an inflation adjustment or an automated method, it must allow either parent to contest the adjustment.28
According to a report by OCSE,
Most States' child support guidelines contain quantitative thresholds that must be met before the order can be modified. These thresholds are defined as a percentage and/or dollar change in the current child support obligation. For example, guidelines may provide that an order cannot be modified unless the new financial circumstances result in at least a 15% change in the order amount, either upward or downward.29
The report further states that the use of the quantitative thresholds contained in child support guidelines
About 20 states have implemented programs that seek to simplify the modification process and help parents to request a modification of their child support order.31 According to the OCSE, states are using the following four approaches to improve their modification process.
For a detailed profile of each state's procedures for modifying a child support order, see the OCSE website.33
Many noncustodial parents believe that if they fall behind in their child support payments at a time when they are legitimately unable to make the payments, the amount they owe can be reduced or discounted later by the court when an explanation for nonpayment is given. However, this sort of retroactive reduction is not permitted under current law. If the noncustodial parent waits to explain his or her changed financial circumstances, the court will not be able to retroactively reduce the back payments (i.e., arrearages) that he or she owes.
As mentioned earlier, child support arrearages are unpaid child support.34 Child support arrearages generally result from (1) noncompliance with child support orders; (2) child support orders that are not commensurate with the noncustodial parent's ability to pay; (3) inclusion of birth costs (i.e., health care costs related to the pregnancy, as well as the birth of the child)35 in the child support order; (4) lower rates of collections on arrearages compared to current support; and (5) the practice of assessing interest on unpaid child support.
Research indicates that a relatively small number of noncustodial parents owe the majority of child support arrearages. These noncustodial parents are more likely than other noncustodial parents to (1) have no or low reported income; (2) not have paid child support in the past year; (3) have no address on file or an out-of-state address; and (4) have multiple current child support orders.36
In aggregate, child support arrearages increased in nominal dollars from $84 billion in FY2000 to $114.8 billion in FY2014 (a 37% increase).37 During that 14-year period, the percentage of those arrearages that actually was paid remained at about 7%.38 According to a recent OCSE report, "most arrears are owed by parents who owe substantial amounts of arrears, have little or no income, and have owed arrears for some time."39
Large child support arrearages may
An Urban Institute study revealed several shared characteristics among those individuals with the largest child support arrearages. According to the study, noncustodial parents who owed $30,000 or more in child support arrearages, known as high debtors, were
One of the stated goals of OCSE's strategic plan for the CSE program is to ensure reliable payment of child support. For child support to be reliable, child support orders must be set accurately and based on a noncustodial parent's actual ability to pay them. Research shows that setting a realistic order improves the chances that child support payment will continue over time. In cases in which the initial child support was not adequate to meet the child's needs and/or did not adequately reflect the noncustodial parent's ability to pay, or a significant change in circumstances occurred, modification of the child support order may resolve long-standing or recently developed issues.
Under the CSE program, states are given significant latitude regarding review and modification of child support orders.42 Federal law requires that states give both parents the opportunity to request a review of their child support order at least once every three years, and states are required to notify the parents of this right. It appears that this approach may be unsuccessful because parents may not know how to request a modification or they may not be aware of the consequences of a buildup of arrearages until it becomes a problem that is difficult to overcome.
To prevent large child support arrearages (on an individual level and in aggregate), some policymakers and analysts argue that child support modification laws should be changed so that they are more sensitive to the noncustodial parent's ability to pay child support.43 These individuals contend that it is virtually impossible for most low-income noncustodial parents to stay current in meeting their monthly child support payments and still have enough money to meet their own needs for food and shelter.
This section discusses several concerns about the current child support review and modification process in the context of the following questions: Are arrearages too high? Are garnishment limits too high? Should CSE agencies provide work-related services to noncustodial parents? Is there inequitable treatment among various categories of nonpaying noncustodial parents?
As stated above, in FY2014, $114.8 billion in child support arrearages was owed to families receiving CSE services, but less than 7% ($7.6 billion) of those arrearages was actually paid. A significant accumulation of child support arrearages is a concern because it means that children and families are not getting a large amount of income to which they are entitled, income that could significantly improve their well-being.
In FY2014, 63% of noncustodial parents with arrearages continued to make payments on their child support arrearages.44 One interpretation of this information is that many noncustodial parents want to fulfill their child support obligations but simply have too many financial obligations (e.g., food and shelter for themselves) to cover with their limited incomes; therefore, they may always be a little or a lot behind in meeting their child support obligations.
There is widespread agreement that preventing the buildup of unpaid child support through early intervention rather than traditional enforcement methods is essential to the future success of the CSE program.45 Some commentators point out that such a proactive approach to addressing the huge accumulation of child support arrearages may help many low-income children whose parents are unemployed or underemployed.46
Over the years, the OCSE has proposed the following procedures for reducing high child support arrearages:
With regard to the last proposal, in an effort to reduce or eliminate child support debt some states use debt compromise,48 a process whereby a state forgives a portion or all of the child support debt owed to the state49 by the noncustodial parent in exchange for the noncustodial parent's participation in specified employment, training, or other activities.50
Research from the University of Wisconsin suggests that reduction of large child support debts may increase child support payments. The study suggests that higher arrears, in themselves, substantially reduce both child support payments and formal earnings for the noncustodial parents and families that already likely struggle in securing steady employment and coping with economic disadvantage.51
Although many custodial parents agree to a certain extent that some noncustodial parents are "dead broke" rather than "deadbeats," they contend that the states and the federal government need to proceed with caution in lowering child support orders for low-income noncustodial parents. They argue that child support is a source of income that could mean the difference between poverty and self-sufficiency for some families. They emphasize that lowering the child support order is likely to result in lower income for the child. They argue that even if a noncustodial parent is in dire financial straits, he or she should not be totally released from financial responsibility for his or her children.
Title III of the Consumer Credit Protection Act (CCPA; 15 U.S.C. 1673(b)) limits the amount of an employee's earnings that may be garnished.52 Under the CCPA, 50%-65% of disposable earnings53 may be garnished or withheld from a noncustodial parent's paycheck for child support purposes. Specifically, the CCPA allows up to 50% of a worker's disposable earnings to be garnished to pay child support if the worker is currently supporting a spouse or a child who is not the subject of the order. If a worker is not supporting a spouse or child, up to 60% of the worker's disposable earnings may be taken.54 An additional 5% may be garnished for support payments more than 12 weeks in arrears.55
The intent of Congress in the CCPA was to put a limitation on the garnishment of wages to "relieve countless honest debtors driven by economic desperation from plunging into bankruptcy in order to preserve their employment and ensure a continued means of support for themselves and their families."56 Thus, federal law provides a consumer with protection from court-ordered deductions that go beyond a certain percentage of an individual's disposable income.
According to an OCSE report, research consistently finds that noncustodial parents are more likely to stay current on their child support payments if the child support obligation is 20% of their earnings or lower.57 Therefore, it is understandable that many noncustodial parents argue that garnishment of up to 65% of their paycheck for child support is unreasonable. They claim that having to make do on so little of their income discourages work and reinforces the perception that the CSE agency is dismissive of their financial condition as it continues to garnish unreasonable child support obligations even when it is obvious that the noncustodial parents can barely support themselves.58
When wages are garnished, an employer withholds money from an employee's paycheck and sends those funds to a creditor until the debt is paid in full.59 Most child support is collected through mandatory payroll withholding.60
CSE officials have the authority to require employers to garnish or withhold61 as much as 65% of a noncustodial parent's disposable wages toward the payment of child support obligations. For low-income noncustodial parents who are unemployed or underemployed, the current garnishment limits may be too high. The maximum garnishment percentage of 65% may increase the difficulty of securing and maintaining housing, transportation, and employment that are essential for providing the stability and income necessary for making future child support payments.62
Several studies indicate that some low-income noncustodial parents facing substantial child support arrearages and income withholding sometimes become discouraged and leave formal employment.63 Some research suggests that when noncustodial parents perceive that the CSE system is unfair, the likelihood that they will pay any child support decreases.64
Most families that receive CSE services have low and moderate incomes. According to OCSE data, about half of the families in the CSE program have income at or below 150% of the poverty level; 90% of CSE families have income at or below 400% of the poverty level.65 Moreover, a downward trend in male employment, together with the last recession, increases the probability that many noncustodial parents are unemployed or sporadically employed.
Given that no and low incomes are at the crux of many noncustodial parents' inability to meet their child support obligations, whether it is the initial child support order or a subsequent modified order, many policymakers and CSE administrators contend that providing work-oriented services and programs to noncustodial parents is an effective method of increasing child support payments to families.66
According to OCSE,
The child support program is uniquely positioned to effectively manage the delivery of employment services and assure results for children. Prior research shows that child support-led employment programs are more likely to yield results for noncustodial parents and their children. The child support program serves 80 percent of poor custodial families and has a strong stake in seeing that poor noncustodial parents are able to support their children. Managing employment programs allows the child support program to ensure that noncustodial parents receive the services they need to find work. Once they find a job, wage withholding ensures that child support goes to custodial families.67
As of February 2014, 30 states and the District of Columbia were operating work-oriented programs for noncustodial parents with active CSE agency involvement.68 Although most of the programs are not statewide, some are. Many of these work-oriented programs were established in partnership with state and local workforce development boards and local courts for noncustodial parents regardless of whether the child is enrolled in the TANF program. Most of the work-oriented programs are child support led, which means the CSE program is the lead agency and is accountable for results. In other models, the CSE program is actively involved but is not the lead agency and usually is not held accountable for results. Sources of funding for these work-oriented programs for noncustodial parents are CSE grant funds, CSE incentive funds, TANF funds, responsible fatherhood grant funds, Workforce Investment Act funds, Department of Labor grant funds, and state funds.69
The OCSE recently issued a proposed rule stating the following:
In an effort to make the program more effective and to increase regular child support payments, we propose program standards related to providing certain job services for eligible noncustodial parents responsible for paying child support. These services are designed to complement traditional enforcement tools and to help noncustodial parents find suitable employment opportunities so they can support their children.70
There has been some controversy regarding the OCSE proposing in federal regulations new services and programs eligible for CSE funding. Some have argued that this issue should be addressed through legislation, not regulation. However, many policymakers agree that helping low-income noncustodial parents find work often leads to such parents making their child support payments on a more consistent and timely basis.
According to one study, states indicate that 30%-40% of their "hard to collect from" cases consist of noncustodial parents who have a criminal record.71 Many incarcerated parents have child support orders that were established before they entered jail or prison but after incarceration no longer have the income to pay child support. The average incarcerated parent with a child support order reportedly has $10,000 in child support arrearages when entering state prison and $20,000 in child support arrearages when leaving prison.72 In recent years, policymakers have focused on implementing strategies to help incarcerated and formerly incarcerated noncustodial parents modify their child support orders to enable them to pay those orders on a consistent basis.
Several recommendations of policymakers and observers specifically related to incarcerated parents73 include (1) enabling courts to consider an individual's obligations to his or her children at the time of sentencing;74 (2) prohibiting incarceration from being defined as voluntary unemployment (a term used to describe someone who has chosen not to work),75 thereby allowing a noncustodial parent's child support order to be modified when he or she enters prison;76 and (3) requiring states to modify (or forgive) automatically child support orders of noncustodial parents who are in prison (during the prison-intake process), only for the length of their prison sentence, unless the custodial parent objects because the inmate has income and/or assets that can be used to pay child support.77
Some observers contend that there has been too much focus on the need to help noncustodial parents who are in prison. They argue that persons who suffer a long-term injury or illness and those who are unemployed or underemployed face the same challenges with regard to no income or lower income as those who are in jail or prison. They argue that child support modification laws should be changed so they are more sensitive to periods during which the noncustodial parent's ability to pay child support decreases, regardless of whether the decline in income is from unemployment, injury or illness, or incarceration. They maintain that states should offer enhanced review and modification assistance to all vulnerable noncustodial parents, not just those who are incarcerated.
Some observers argue that policymakers, when considering policies related to reducing the child support obligations of prisoners, also must consider equity issues related to the treatment of low-income noncustodial parents who may be unemployed as opposed to being in prison. They assert that it is sending the wrong message to unilaterally lower payments of persons who have broken the law and not make similar allowances for law-abiding citizens who are unemployed.78
| 1. |
Families receiving Temporary Assistance for Needy Families (TANF) benefits (Title IV-A of the Social Security Act), foster care payments (Title IV-E of the Social Security Act), or Medicaid coverage (Title XIX of the Social Security Act) automatically qualify for Child Support Enforcement (CSE) services free of charge. Other families must apply for CSE services, and states must charge an application fee that cannot exceed $25. |
| 2. |
The term states in this report includes the 50 states, the District of Columbia, and the territories of Guam, Puerto Rico, and the Virgin Islands. |
| 3. |
The other CSE services include locating absent parents, establishing paternity, collecting child support payments, distributing child support payments, and establishing and enforcing support for children's medical needs. For general information on the CSE program, see CRS Report RS22380, Child Support Enforcement: Program Basics, by [author name scrubbed]. |
| 4. |
There have never been nationwide child support guidelines. Instead, federal law pursuant to the Child Support Amendments of 1984 (P.L. 98-378; enacted August 16, 1984) required every state to establish child support guidelines (effective October 1, 1987) as a condition of having its CSE state plan approved and thereby qualifying for CSE funding. Initially, the child support guidelines were only advisory in nature, which meant the guidelines were not binding on judges and other officials with the authority to establish child support obligations. However, the Family Support Act of 1988 (P.L. 100-485; enacted October 13, 1988) revised the law by requiring states to pass legislation (1) making the state child support guidelines a "rebuttable presumption" (see footnote 17) in any judicial or administrative proceeding and (2) establishing the amount of the order that results from the application of the state-established guidelines as the correct amount to be awarded (the mandatory child support guidelines were effective beginning October 13, 1989). To deviate from the guidelines, the court or CSE agency had to submit written findings on the record indicating why the guideline amount would be unjust or inappropriate for a specific case (Section 467(b) of the Social Security Act; 42 U.S.C. §667(b)). |
| 5. |
FindLaw, "Child Support Guidelines," at http://family.findlaw.com/child-support/child-support-guidelines.html, 2015. |
| 6. |
In cases where the parents have joint physical custody of a child, and the child spends 50% of his or her time with each parent, child support is often still ordered to be paid by the parent with more money to the one with less money. Note that most courts do not order a 50/50 split of time because it can be hard for some children and can be logistically difficult. |
| 7. |
State of Massachusetts, Report of the Child Support Guidelines Task Force, October 2008, p. 14. See also Margaret Campbell Haynes, ed., Child Support Guidelines: The Next Generation (Washington, DC: U.S. Dept. of Health and Human Services, Office of Child Support Enforcement, 1994), 1. |
| 8. |
State of Massachusetts, Report of the Child Support Guidelines Task Force, October 2008, p. 14. |
| 9. |
This information is based on data from the National Conference of State Legislatures website. See National Conference of State Legislatures, "Guideline Models by State," updated February 2012 at http://www.ncsl.org/issues-research/human-services/guideline-models-by-state.aspx. |
| 10. |
U.S. Department of Health and Human Services (HHS), Administration for Children and Families (ACF), Office of Child Support Enforcement (OSCE), "Providing Expedited Review and Modification Assistance," Child Support Fact Sheet Series, no. 2, June 20, 2012. |
| 11. |
Child support arrearages represent the amount of child support that remains unpaid. |
| 12. |
Brett Burkhardt, Carolyn Heinrich, and Hilary Shager, "Reducing Child Support Debt and Its Consequences: Can Forgiveness Benefit All?," (working paper, Robert M. La Follette School of Public Affairs, University of Wisconsin–Madison, 2010). |
| 13. |
HHS, ACF, OSCE, "Final Rule: Prohibition of Retroactive Modification of Child Support Arrearages," AT-89-06, April 19, 1989. |
| 14. |
Note: the terms arrears and arrearages are synonymous. The term arrearages is defined as past due, unpaid child support owed by the noncustodial parent. Generally, if the noncustodial parent has arrearages, he or she is said to be "in arrears". |
| 15. |
In this context, service means the delivery of an official notification that a legal action or proceeding against an individual has started. |
| 16. |
Article IV, Section 1 of the U.S. Constitution states "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Generally judgments subject to future modification such as child support and child custody orders are not considered final. Therefore, they were not entitled to full faith and credit prior to the passage of the Bradley Amendment. Also see HHS, ACF, OSCE, "Modifying Support Orders: Child Support and the Judiciary Bench Card," May 15, 2012, at http://www.acf.hhs.gov/programs/css/resource/modifying-support-orders. |
| 17. |
A rebuttable presumption is an assumption made by a court or CSE agency that the amount of the award that would result from the application of the guidelines is the correct amount of child support to be awarded in both the establishment and modification of child support orders unless someone comes forward to contest it and prove otherwise. Generally, a court or the CSE agency must provide a written finding that proves that the application of the guidelines would be unjust or inappropriate in a particular case under criteria established by the state to rebut the presumption that the child support order based on the state-established guidelines is the correct and appropriate amount. |
| 18. |
Note that the terms adjust and modify are used interchangeable, as are the terms adjustment and modification. |
| 19. |
Federal Register, vol. 57, no. 249, Office of Child Support Enforcement, "Child Support Enforcement Program: Review and Adjustment of Child Support Orders," Final Rule, December 28, 1992, p. 61560. |
| 20. |
When a family applies for TANF cash benefits, the custodial parent must assign (i.e., legally turn over) her or his rights to receive some or all of her or his child support payments to the state to pay the state back for TANF benefits received from the state. In other words, when the parent receives public assistance, the state pays for the benefits to be provided to the parent and family, and in return the state is allowed to keep child support payments to reimburse itself (and the federal government) for the cost of the benefits. |
| 21. |
HHS, ACF, OSCE, "Final Rule: Review and Adjustment Requirements for Child Support Orders Effective October 13, 1993," Action Transmittal 92-12, December 28, 1992. |
| 22. |
Note that a child support award is the same as a child support order. |
| 23. |
According to the Congressional Budget Office's analysis, the mandatory review (once every three years) of child support orders in TANF cases pursuant to the Deficit Reduction Act of 2005 (P.L. 109-171) would produce income from child support collections and reduce spending for the Food Stamp and Medicaid programs. (See Congressional Budget Office Cost Estimate, "S. 1932 (Deficit Reduction Act of 2005)," January 27, 2006, pp. 56-57. |
| 24. |
See Section 466(a)(10) of the Social Security Act (42 U.S.C. §666(a)(10)). |
| 25. |
Despite the widespread use of the terms "judicial" and "administrative," the establishment of child support orders in most CSE programs fall along a continuum, ranging from highly judicial (court, in which a judge presides, sets order and attorneys are involved) to highly administrative (CSE agency sets the child support order without a hearing, and there is very limited attorney involvement). Many CSE programs describe their child support order establishment process as quasi-judicial. (See the following report for more detailed information, Administrative and Judicial Processes for Establishing Child Support Orders Final Report, by Karen N. Gardiner (The Lewin Group), John Tapogna (ECONorthwest), and Michael E. Fishman (The Lewin Group), June 2002. |
| 26. |
For more information on the initial child support order, see CRS Congressional Distribution Memo (CD1374), Child Support Guidelines, by [author name scrubbed], May 15, 2013. (Available to congressional clients upon request to author.) |
| 27. |
For additional information, see National Conference of State Legislatures, "Child Support 101.2: Establishing and Modifying Support," at http://www.ncsl.org/research/human-services/enforcement-establishing-and-modifying-orders.aspx. |
| 28. |
See 45 C.F.R. §303.8. |
| 29. |
HHS, ACF, OSCE, "Story Behind the Numbers: Impact of Modification Thresholds on Review and Adjustment of Child Support Orders," IM-07-04, December 8, 2006. |
| 30. |
Ibid. |
| 31. |
HHS, ACF, OCSE, "Providing Expedited Review and Modification Assistance," Child Support Fact Sheet Series, no. 2, June 20, 2012. |
| 32. |
Ibid., p. 2. |
| 33. |
See HHS, ACF, OCSE, "State by State—How to Change a Child Support Order," at http://www.acf.hhs.gov/programs/css/resource/state-by-state-how-to-change-a-child-support-order. |
| 34. |
This report is focused on high arrearages only as they relate to the need for child support guidelines that more accurately reflect a noncustodial parent's ability to pay child support and the need to modify child support orders, when appropriate, so as to lessen the problem of arrearages. For information on to whom child support arrearages are owed (i.e., custodial parents or the state and/or federal governments), see the following: HHS, ACF, OCSE, "Major Change in Who is Owed Child Support Arrears," Child Support Fact Sheet Series, no. 4, March 31, 2014, at http://www.acf.hhs.gov/programs/css/resource/major-change-in-who-is-owed-child-support-arrears and Robert Franklin, "Office of Child Support Enforcement: Most Arrears Owed by Parents with 'Little or No Income,'" National Parents Organization Blog, at https://nationalparentsorganization.org/blog/21669-office-of-child-support-enforcement-most-arrears-owed-by-parents-with-little-or-no-income. |
| 35. |
If the parents are not married when the mother applies for Medicaid and the mother is referred to the CSE program, the court may order the father to repay birth costs. |
| 36. |
National Conference of State Legislatures, "Child Support 101.2: Establishing and Modifying Support," at http://www.ncsl.org/research/human-services/enforcement-establishing-and-modifying-orders.aspx. |
| 37. |
After adjusting for inflation (using CPI-U-RS), child support arrearages decreased 1% from $115.5 billion in FY2000 to $114.8 billion in FY2014 (constant 2014 dollars). |
| 38. |
In FY2014, $148.6 billion in child support obligations ($33.8 billion in current support and $114.8 billion in past-due support) was owed to families receiving CSE services, but only $29.3 billion was paid ($21.7 billion in current support and $7.6 billion in past-due support). |
| 39. |
HHS, ACF, OCSE, "Major Change in Who is Owed Child Support Arrears," Child Support Fact Sheet Series, no. 4, March 31, 2014, at http://www.acf.hhs.gov/programs/css/resource/major-change-in-who-is-owed-child-support-arrears. |
| 40. |
HHS, ACF, OCSE, "Providing Expedited Review and Modification Assistance," Child Support Fact Sheet Series, no. 2, June 20, 2012. |
| 41. |
Elaine Sorensen, Liliana Sousa, and Simone G. Schaner, Assessing Child Support Arrears in Nine Large States and the Nation (Washington, DC: Urban Institute, 2007). |
| 42. |
This flexibility and discretion only applies to prospective modification of child support orders. Federal law prohibits the retroactive modification of child support orders (§466(a)(9) of the Social Security Act). |
| 43. |
HHS, ACF, OCSE, "Establishing Realistic Child Support Orders: Engaging Noncustodial Parents," Child Support Fact Sheet Series, no. 1, June 20, 2012. |
| 44. |
For more information regarding FY2014 data on the CSE program, see HHS, ACF, OCSE, Preliminary Report FY2014, at http://www.acf.hhs.gov/sites/default/files/programs/css/fy2014_preliminary.pdf. |
| 45. |
HHS, ACF, OCSE, National Child Support Enforcement Strategic Plan FY2005-2009, DCL-04-44, 2004, at http://www.acf.hhs.gov/programs/css/resource/national-child-support-enforcement-strategic-plan-fy2005-2009. |
| 46. |
Elaine Sorensen and Helen Oliver, Policy Reforms are Needed to Increase Child Support from Poor Fathers, (Washington, DC: Urban Institute, 2002). |
| 47. |
HHS, ACF, OCSE, National Child Support Enforcement Strategic Plan FY 2005-2009. Also see HHS, ACF, OCSE, National Child Support Strategic Plan FY2010-2014. |
| 48. |
For more information on debt compromise policy and practice, see HHS, ACF, OSCE, "State by State—How to Change a Child Support Order," at http://www.acf.hhs.gov/programs/css/resource/state-child-support-agencies-with-debt-compromise-policies. Note that as of September 2011, 44 states and the District of Columbia had policies to compromise child support debt owed to the state. |
| 49. |
As mentioned earlier (see footnote 20), in TANF cases, child support must be assigned to the state. Thereby any unpaid child support is considered a debt of the noncustodial parent that is owed to the state. |
| 50. |
HHS, Office of Inspector General, State Use of Debt Compromise to Reduce Child Support Arrearages, October 2007. Note that federal law permits the use of federal TANF, including emergency contingency funds, and state maintenance of effort (MOE) funds to pay a benefit to a noncustodial parent to reduce or pay off child support arrearages owed to a family. In addition, the federal share of such debt still is owed to the federal government. For the federal portion of the child support debt to be compromised or eliminated, Congress would have to pass legislation to that effect. (ACF in HHS has cautioned that as a matter of prudent use of TANF or MOE funds, it would be inadvisable, although it is technically permissible, to use such funds to pay debts unless both parties [i.e., the custodial and noncustodial parent] are needy. See HHS, ACF, "Questions and Answers on the American Recovery and Reinvestment Act of 2009 [Recovery Act]," 2009, at http://www.acf.hhs.gov/programs/ofa/recovery/tanf-faq.htm#_child_support.) |
| 51. |
Maria Cancian, Carolyn Heinrich, and Yiyoon Chung, "Does Debt Discourage Employment and Payment of Child Support? Evidence from a Natural Experiment," (discussion paper, Institute for Research on Poverty, University of Wisconsin–Madison, 2009). |
| 52. |
The CCPA rules for child support and alimony differ from other "ordinary garnishments" (i.e., those not for support, bankruptcy, or any state or federal tax). For additional information, see U.S. Department of Labor, Wage and Hour Division, "Fact Sheet #30: The Federal Wage Garnishment Law," Consumer Credit Provision Act's Title 3 (CCPA), at http://www.dol.gov/whd/regs/compliance/whdfs30.pdf. |
| 53. |
Disposable earnings is the amount of earnings left after legally required deductions (e.g., federal, state, and local taxes; Social Security; unemployment insurance; state employee retirement systems) have been made. Deductions not required by law (e.g., union dues, health and life insurance, charitable contributions) are not subtracted from gross earnings when the amount of disposable earnings for garnishment purposes is calculated. |
| 54. |
State guidelines indicate how to share child support in cases with more than one support order or when a parent has additional children. Each family must receive a portion of the available money. (See HHS, ACF, OCSE, Changing a Child Support Order, at https://www.acf.hhs.gov/sites/default/files/programs/css/changing_a_child_support_order.pdf.) |
| 55. |
Note that the garnishment percentage amounts mentioned above only apply if the noncustodial parent does not have sufficient disposable earnings to allow for the full amount of the child support order to be deducted. If the noncustodial parent has sufficient available disposable earnings, the full amount of the child support order is to be garnished. Moreover, if the noncustodial parent has child support orders for dependent children in different households and his or her available disposable earnings are insufficient, federal law mandates that the available disposable earnings be allocated so that a pro rata (or proportionate) share of the available earnings is paid toward each obligation. For additional information, see HHS, ACF, OCSE, "Income Withholding—Answers to Employers' Questions," February 26, 2015, at http://www.acf.hhs.gov/programs/css/resource/income-withholding-answers-to-employers-questions and HHS, ACF, OCSE, "Processing an Income Withholding Order or Notice," March 5, 2015, at http://www.acf.hhs.gov/programs/css/resource/processing-an-income-withholding-order-or-notice. |
| 56. |
U.S. Code, Congress & Administrative News, 1968, vol. 2, p. 1979. |
| 57. |
HHS, ACF, OCSE, "Establishing Realistic Child Support Orders: Engaging Noncustodial Parents," Child Support Fact Sheet Series, no. 1, June 20, 2012. |
| 58. |
National Women's Law Center and the Center on Fathers, Families, and Public Policy, Family Ties: Improving Paternity Establishment Practices and Procedures for Low-Income Mothers, Fathers, and Children, 2000, pp. 9-11. |
| 59. |
ADP Research Institute, Garnishment: The Untold Story, September 2014. |
| 60. |
See Section 466(a)(1)(A) of the Social Security Act (42 U.S.C. 666(a)(1)(A)). In FY2013, about 70% of child support collected through the CSE program was collected via income withholding. |
| 61. |
In general, a child support income withholding order must be paid before other garnishments. |
| 62. |
Marguerite Roulet, "Financial Literacy and Low-Income Noncustodial Parents," Center for Family Policy and Practice," June 2009. |
| 63. |
Maria Cancian, Carolyn Heinrich, and Yiyoon Chung, "Does Debt Discourage Employment and Payment of Child Support? Evidence from a Natural Experiment," (discussion paper, Institute for Research on Poverty, University of Wisconsin–Madison, 2009). |
| 64. |
National Women's Law Center and the Center on Fathers, Families, and Public Policy, Dollars and Sense: Improving the Determination of Child Support Obligations for Low-Income Mothers, Fathers, and Children, 2002, p. 2. |
| 65. |
HHS, ACF, Justification of Estimates for Appropriation Committees, FY2016 (Child Support Enforcement), p. 289. Note: the 2015 poverty levels for persons in the 48 contiguous states and the District of Columbia is $15,930 for a family of two, $20,090 for a family of three, $24,250 for a family of four, and $28,410 for a family of five. See HHS, Office of the Assistant Secretary for Planning and Evaluation, "2015 Poverty Guidelines," at http://aspe.hhs.gov/poverty/15poverty.cfm. |
| 66. |
HHS, ACF, OCSE, "Effect of Male Employment on Child Support Collections," Child Support Fact Sheet Series, no. 5, April 22, 2014. |
| 67. |
HHS, ACF, OCSE, "The National Child Support Noncustodial Parent Employment Demonstration (CSPED)," Fact Sheet #1, May 18, 2015. |
| 68. |
HHS, ACF, OCSE, "Work-Oriented Programs for Noncustodial Parents: Dear Colleague Letter," DCL-14-10, May 27, 2014, at http://www.acf.hhs.gov/programs/css/resource/work-oriented-programs-for-noncustodial-parents. |
| 69. |
Ibid. |
| 70. |
Federal Register, vol. 79, no. 221, HHS, ACF, OCSE (and Centers for Medicare and Medicaid Services (CMS) of HHS), "Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs," Notice of Proposed Rulemaking (NPRM), November 17, 2014, p. 68557. |
| 71. |
HHS, ACF, OCSE, "Section 1115 Demonstration Grants—Projects in Support of the Prisoner Reentry Initiative," HHS-2009-ACF-OCSE-FD-0013," at http://www.acf.hhs.gov/grants/closed/HHS-2009-ACF-OCSE-FD-0013.htm. |
| 72. |
HHS, ACF, OCSE, Project to Avoid Increasing Delinquencies, "Realistic Child Support Orders for Incarcerated Parents," Child Support Fact Sheet Series, no. 4, June 20, 2012. |
| 73. |
The proposed Julia Carson Responsible Fatherhood and Healthy Families Act of 2013 (H.R. 2359) from the 113th Congress would have prohibited a state from considering a period of incarceration as voluntary unemployment in determining or modifying a noncustodial parent's child support obligation. It also would have required states to temporarily suspend the child support obligation and any interest on the child support obligation during the period a noncustodial parent is incarcerated. However, it would have required the state to provide the custodial parent with an opportunity to request that the child support obligation continue on the basis that the noncustodial parent has sufficient income or resources to continue to make child support payments during the noncustodial parent's period of incarceration. In addition, the bill would have required states to review and, if appropriate, reduce the balance of child support arrearages permanently assigned to the state in cases where the noncustodial parent (1) does not have the ability to pay the arrearages, (2) did not seek a modification during his or her incarceration, and (3) will be more willing (because of the modification) to pay current child support payments consistently and on time. Finally, states would have had to determine that it was in the best interest of the child for the state to make such a reduction. |
| 74. |
Federal law prioritizes child support obligations above all other debts owed to the state, including restitution, court and prison fines, fees, and surcharges. The proposed provision would allow judges, when ordering that an individual pay fees to reimburse the state for the costs of his or her incarceration, to reduce this order by the amount of the individual's child support obligations. |
| 75. |
Some judges have ruled that incarcerated parents are responsible for the disadvantaged financial circumstances that resulted from their criminal activities because imprisonment is a foreseeable result of criminal behavior. In contrast, other judges have refused to equate incarceration with voluntary unemployment and have argued that incarcerated parents rarely have any actual job prospects or potential income and cannot alter their employment situation. (See Jessica Pearson, "Building Debt While Doing Time: Child Support and Incarceration," Judge's Journal vol. 43, no. 1 (winter 2004), pp. 5-12.) |
| 76. |
In states that classify incarceration as voluntary unemployment, a person's child support order may not be modified when he or she enters prison or jail. |
| 77. |
Jessica Pearson, "Building Debt While Doing Time: Child Support and Incarceration," Judge's Journal vol. 43, no. 1 (winter 2004), pp. 5-12. |
| 78. |
Jennifer L. Noyes, "Review of Child Support Policies for Incarcerated Payers," Institute for Research on Poverty, University of Wisconsin-Madison, December 2006. |