Written by National Conference of State Legislators
There are two primary ways by which noncustodial parents with child support orders may intersect with the criminal justice system.
On one path, the noncustodial parent is not in compliance with a child support obligation and that noncompliance may lead to incarceration (short-term, primarily in local jails) as a result of either a civil contempt or criminal non-support action taken by the state.
The other way is for noncustodial parents who are incarcerated for a criminal offense and have a current or delinquent child support obligation. The incarceration is not related to child support and they may be incarcerated for longer periods of time in a state or federal prison. While child support isn’t the reason for incarceration for these parents, the ongoing child support obligation has repercussions for their confinement, release and re-entry.
As of Dec. 31, 2014 there were approximately 1.56 million people in federal and state prison. More than 50 percent of those inmates have one or more child under the age of 18, leaving an estimated 2.7 million children with a parent incarcerated. In addition, a 2003 study estimated that one quarter of inmates in prisons had a child support case. Based on current prison populations, this suggests that approximately 400,000 inmates have a child support case.
What the federal and state prison numbers do not capture are the numbers of noncustodial parents who are incarcerated in local jails for failure to pay child support. The Bureau of Justice Statistics estimated that more than 730,000 individuals were incarcerated in local jails in 2013, but what’s unknown is how many of those inmates were incarcerated due to child support noncompliance. A 2009 study in South Carolina found that 13.2 percent of county jail inmates were behind bars for civil contempt related to nonpayment of child support.
There is a great deal that state child support programs are currently doing to reduce the use of incarceration for child support noncompliance. The most widely developed efforts are focused on removing barriers to employment that are faced by low income and/or formerly incarcerated parents. The potential financial benefits of diverting nonpaying parents from jail into employment programs, to the family and the community at large, are significant.
The distinction between those noncustodial parents who are incarcerated for failure to pay child support and those who are incarcerated for a separate criminal offense who also have child support orders is an important one. The available approaches to improving child support compliance and encouraging ongoing, consistent child support payments within these populations are very different, particularly considering the reasons for and potential length of the incarceration. Below is a further discussion of this distinction as well as the varying policy options to address the needs of both populations.
In addition, on Dec. 20, 2016, the Office of Child Support Enforcement (OCSE) published final rules updating the rules regarding child support enforcement. The rule is intended to increase the effectiveness of the child support program for all families, and provide for more flexibility in state child support programs. In an effort to accommodate the ever-changing world of technology, the rule also helps remove barriers to outdated systems to improve efficiency and simplify the process of collecting and distributing child support. While the new rule provisions are, for the most part, optional and will not require state legislation in most states, they do provide an opportunity for state legislators to clarify and shore up various child support enforcement laws.
The rule specifically addresses incarcerated noncustodial parents and incarceration for failure to pay child support, as well as modification procedures for incarcerated noncustodial parents. The major provisions of the rule regarding incarcerated noncustodial parents are:
- Incarceration for Failure to Pay Child Support: the rule requires states to implement due process safeguards from the Supreme Court case Turner v. Rogers. The rule addresses the use of civil contempt in child support cases and seeks to reflect the ruling of the U.S. Supreme Court in the 2011 case, Turner v. Rogers, which provided guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt, including a determination of the noncustodial parent’s ability to pay.
- Incarcerated with a Child Support Order: the rule ensures the right of all parents to seek a review of their order when their circumstances change. While these provisions apply to all parties involved, they specifically address incarcerated noncustodial parents and their ability to have the child support order reviewed and potentially modified while they are incarcerated. The rule prohibits states from treating incarceration as voluntary unemployment for purposes of modifying a child support order. Currently 36 states and D.C. treat incarceration as involuntary unemployment.
The final rule made significant changes to the child support program to improve efficiency and flexibility in states. For more about the final rule, visit the Federal Office of Child Support Enforcement’s Final Rule Resources webpage and NCSL’s Office of Child Support Enforcement (OCSE) Final Rules Governing Child Support Enforcement Programs page for a rule summary.
Noncustodial parents may face incarceration for failure to pay child support through civil contempt or criminal nonsupport. Civil contempt is used more commonly than criminal contempt and the sentence is typically less severe and for a shorter length of time. Many states, recognizing that no support can be paid when a noncustodial parent is incarcerated, have established programs to encourage full compliance with child support orders, both before and as a part of the civil contempt process. These programs include examining child support orders to reflect realistic amounts given the individual’s circumstances and diversion programs to reduce incarceration rates and increase child support payments.
All 50 states have processes for criminal prosecution for failure to pay child support, however, this more severe punishment is very rarely meted out. These laws generally make criminal nonsupport a felony or misdemeanor. The fines and potential prison sentences, as well as the delinquent threshold amount in order for criminal prosecution to be triggered, vary state by state.
See NCSL’s Criminal Nonsupport and Child Support page for details on each states’ statute.
Every state has a procedure for civil contempt that may be used for violations of various court orders. Civil contempt is designed to incentivize the defendant, or obligor in the case of child support, to comply with the court order. While incarceration is certainly an option when a child support obligor is noncompliant, civil contempt is not intended to punish the defendant, rather, it is intended to prompt compliance with the court’s order.
Federal law, according to U.S. Supreme Court case Turner v. Rogers, requires that civil contempt only be used when the noncustodial parent has the ability to pay and is willfully avoiding paying. State policies and practices vary in regards to how this limitation is implemented by the state child support agency. With noncustodial parents who are simply unable to pay their child support obligation, diversion or employment programs could have a significant impact in improving the likelihood of payment. The new federal rule, discussed above, seeks to shore up the due process requirements from Turner v. Rogers, by providing guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt, including a determination of the noncustodial parent’s ability to pay.
Some may see diversion or employment programs as letting the delinquent obligor off the hook, however, parents are generally ordered into these programs by the courts and may still face a period of incarceration for failing to follow the rules of the diversion program. For example, Georgia enacted house bill 310 during the 2015 legislative session to allow for a county diversion program for delinquent obligors who are in contempt of court. There are rules of the diversion program and “If the respondent fails to comply with any of the requirements…nothing shall prevent the sentencing judge from revoking such assignment to a diversion program and providing for alternative methods of incarceration.”
Diversion programs may reduce the number of non-custodial parents in jail, as well as increase the receipt of child support, reduce reliance on public assistance and save money from the reduced jail population. (See below for a discussion of state diversion programs). The federal Office of Child Support Enforcement also has an infographic comparing job services to jail.
The majority of states use civil contempt to enforce child support orders, though limited data is available on how often it is used and the costs associated with subsequent incarceration.
State Diversion Programs
In addition to the legislation described above, Georgia has a series of problem solving courts, also called Parental Accountability Courts, which seek to remove barriers to non-payment of child support, such as unemployment, substance abuse, low level education. The overarching goal of these courts is to keep people out of jail for failing to pay child support, and to obtain support payments.
2015 Georgia HB 310: Creates a diversion center for child support obligors who have been sentenced for contempt of court for failure to pay child support. Allows people in the diversion program to travel to and from his or her place of employment and to continue his or her occupation. Details the requirements of traveling while in the diversion program. Requires the obligor to remain in the diversion center for the duration of the sentence, with the exception of traveling to and from work. Requires the obligor to pay alimony or child support as previously ordered, including arrears. Allows the obligor to participate in educational or counseling programs offered at the diversion center. Any additional funds that are available will go towards reimbursing the center for the cost (not to exceed $30 per day) of maintaining the obligor. Allows for alternative methods of incarceration if the obligor does not comply with the detailed requirements.
2015 Louisiana HCR 175: Urges and requests that the Department of Public Safety and Corrections make recommendations for the development of a work release program which would be suited for individuals convicted of offenses involving the failure to pay child support in order to facilitate employment and the fulfillment of child support obligations, and make recommendations to the Louisiana Legislature prior to the convening of the 2016 Regular Session.
Texas NCP Choices Program is a court diversion program that assists unemployed or underemployed noncustodial parents find and maintain employment. Program participants must spend 30 hours a week looking for a job, meet with the Workforce Counselor every week until employment is found, attend all court hearings and program appointments, comply with the child support order and stay in communication with their Workforce Counselor monthly following employment.
A 2009 report on the impact of the NCP Choices Program showed the following results:
- Participants paid $57 more child support 47 percent more often, showing a 51 percent increase in total collections. These results continued for 2-4 years after programs participation.
- Participants paid their child support 50 percent more consistently over time
- Participants were employed at 21 percent higher rates than non-participants, an effect that also persisted at least two to four years after the program
- Participants were about one third less likely to file an unemployment claim in any given month in the first year after the program
- The custodial parents associated with NCP Choices participants were 21 percent less likely to receive TANF benefits in the first year after the program, and 29 percent less likely two to four years after the program.
Virginia’s Intensive Case Monitoring Program (ICMP) was established by the Virginia General Assembly in 2008 (HB 1257). ICMP is a diversion/referral program for noncustodial parents following an administrative determination or order of the court. If a parent is in court for failure to pay child support, they may be referred to ICMP for case monitoring and referral services. The program then refers participants to “(i) employment services, to include employment assessment, employment search, and employment training; (ii) family services, including parenting skills, co-parenting skills, and relationship-building activities for parents and children; (iii) educational services, including GED preparation and GED testing; (iv) housing services, including referrals to organizations that operate shelters and provide subsidies; (v) document assistance, including referrals to organizations and assistance in securing vital records, driver’s licenses, commercial driver’s licenses, or other documents; and (vi) social services, health and mental health services, substance abuse services, or other services that may be necessary to enable the person to pay child support owed in the future.” Of the 979 program participants since ICMP was first enacted, 326 have graduated, 277 are still active and 376 were dropped for noncompliance with program requirements. Further, through December 2011, the program had collected over $3 million dollars, showing significant increases in average monthly child support payments among all three groups.
In Seattle, Wash., the King County Prosecutor’s Office operates a Navigator Program consisting of two full-time paralegals who are there to assist parents “navigate” the child support system. The navigator program is voluntary and open to parents who are involved in the Family Support Division’s Contempt of Court Unit or those who have been referred by the Division of Child Support because they are in search of employment or educational and training opportunities. The navigators connect parents with community partners who can assist the parents with obtaining housing, food and utilities.
Similar to the King County Prosecutor’s Office’s Navigator Program, the Washington State Division Child Support operates a program called Alternative Solutions. Alternative Solutions is a statewide program that seeks to connect parents with over 3,500 community resources across the state. These community resources are available to help parents with finding a job, training, housing, food, medical care or legal resources. In addition, the program can assist parents with lowering child support payments, reducing state-owed debt, and other case management actions, such as getting a suspended driver’s license back.
In addition to diversion and work release programs, states have also looked at the ways in which child support orders are established to ensure child support obligations are being calculated, as federal law requires, on the noncustodial parent’s ability to pay. State efforts to establish orders that reflect a parent’s current earnings are designed to promote regular payment of support and reduce the likelihood a parent will fall behind on child support and accrue debt.
The federal Office of Child Support Enforcement (OCSE) has a Project to Avoid Increasing Delinquencies (PAID)resource with various fact sheets addressing this issue.
The other population of incarcerated noncustodial parents are those who are in prison for criminal offenses not involving child support and who have current and/or delinquent child support orders. On average, an incarcerated parent with a child support order has the potential to leave prison with nearly $20,000 in child support debt, having entered the system with around half that amount owed.
According to 2013 data from the Bureau of Justice:
- 46 percent of incarcerated parents have HS diploma or equivalent, as compared to 82% of men ages 18-34
- Nearly 60 percent of black men who are high school dropouts have done time by their mid-30s
- About two-thirds of people in prison or jail were employed at least part time before arrest with a median income of less than $1000 per month.
In addition, in Illinois in 2013:
- There was 5,589 active orders for currently incarcerated noncustodial parents involved in the IV-D child support program with 6,646 cases
- There was $986,000 in new current support debt per month with more than $97.4 million in accumulated debt.
- There was 15,387 current or formerly incarcerated parents in the Illinois IV-D caseload
- 41 percent of those incarcerated parents had an average income of $10,136 per year prior to incarceration
- The remaining 59 percent had no reported income prior to incarceration.
Modification during Incarceration
Whether a parent is incarcerated or not, a material and substantial change in circumstances is required to modify child support orders in the majority of jurisdictions. Two situations that may be treated as a material and substantial change in circumstances are incarceration and unemployment.
Some states allow incarceration to be considered a substantial change in circumstances allowing for modification while others do not allow incarceration alone to be a sufficient reason for modification and would require other circumstances to be shown in order to modify. State policies regarding modification of child support during incarceration vary and depend on a number of factors.
A significant reduction in income due to a job loss or job change is generally considered a material and substantial change for purposes of modifying child support, as long as the job loss or reduction in earnings was involuntary. Conversely, voluntary un- or underemployment in order to avoid payment of child support is not considered to be a material and substantial change of circumstances and therefore does not warrant consideration for modifying child support.
Approximately 36 states currently treat imprisonment as involuntary unemployment which means the obligor could request a modification. Certain exceptions to this determination exist if the reason for the incarceration is related to the failure to pay child support or avoidance of child support. A small number of states treat incarceration as voluntary unemployment because the crime, which led to the inability to work or pay child support, is considered a voluntary act. As such, modification of child support during incarceration is not allowed in those states. The new federal rule, discussed above, prohibits state child support programs from treating incarceration as voluntary unemployment, allowing for modification of child support orders during incarceration.
The states that allow for modification during incarceration generally require the noncustodial parent to be proactive in making that request. This process requires the incarcerated parent to know of the modification procedure and access the necessary resources in order to obtain timely modification. Most recently, however, California passed legislation which requires the suspension of a child support order to occur automatically when an obligor is incarcerated or involuntarily institutionalized. In addition. Vermont and Wisconsin allow the child support agency to file a motion to modify the child support orders of incarcerated obligors.
The federal Office of Child Support Enforcement has a State-by-State-How to Change a Child Support Order page to inform child support obligors and state policymakers on the available resources and processes involved.
Modification of Child Support Orders during Incarceration
2015 California AB 610: Requires the suspension of a child support order to occur by operation of law when an obligor is incarcerated or involuntarily institutionalized. Creates an exception to the automatic suspension of child support orders to include obligors who are incarcerated or involuntarily institutionalized for domestic violence or failure to pay child support. Authorizes the local child support agency to administratively adjust account balances for child support cases managed by the agency if the agency verifies that arrears and interest were accrued in violation of these provisions, that specified conditions relating to the obligor’s inability to pay while incarcerated and the underlying offense for which he or she was incarcerated do not exist, and neither the obligor nor the obligee object to the adjustment. Details the procedures for notifying the obligor and obligee about the suspension or adjustment of the child support order. Clarifies that the child support obligation will resume following the obligor’s release from incarceration.
2015 Texas HB 943: Current law presumes that a child support obligors earnings are equal to the federal minimum wage for a 40-hour week, absent evidence to the contrary, for purposes of calculating child support. This bill makes the presumption inapplicable in cases where the child support obligor is subject to an order of confinement that exceeds 90 days and is incarcerated in a local, state, or federal jail or prison at the time the court makes the determination regarding the party’s income.
For more about how states address modification of child support orders during periods of incarceration, see OCSE’s Modification Laws and Policies for Incarcerated Noncustodial Parents facts sheet, part of the PAID project discussed above.
State Prison Outreach and Data Collection
2015 Hawaii SB 913: Requires the Department of Public Safety to collect data relating to the number of incoming offenders into the state correctional system who are parents, and the number of children they have that are under the age of eighteen, in order to provide services to incarcerated parents and their children. Requires a plan for the management of the data collected and public disclosure of the data.
Illinois has several programs that are working with incarcerated parent who have child support orders. The Paternity Establishment Prison Project (PEPP) enables noncustodial parents to establish paternity while incarcerated through genetic testing or voluntary acknowledgements of paternity and then establish an administrative child support order based on that determination of paternity. From this program came Project CHILD (Collaboration Helps Inmates Lessen Debt), which has been in place for more than 10 years and assists incarcerated noncustodial parents with review and modification of support orders. Project CHILD includes dedicated, specially trained staff, who go into prisons to talk to incarcerated parents, provide the required forms and answer any questions they may have.
Minnesota’s “Child Support Liaison” program allows newly incarcerated noncustodial parents to speak with a child support enforcement representative upon intake into prison. That liaison then educates and informs the offenders about the child support system during inmate orientation, facilitates communication between the offender and the county child support enforcement agencies, and helps families support their children while the noncustodial parent is incarcerated. The liaison is also available to assist incarcerated noncustodial parents with the typical child support enforcement services, such as requesting a modification, obtaining genetic testing and other child support issues the parent may be facing.
Texas recently performed a demonstration project called Behavioral Interventions to Advance Self-Sufficiency (BIAS). This project used behavioral economics to help incarcerated parents apply for child support modification by changing the way child support enforcement staff contacted and interacted with incarcerated parents. The project increased the application for modification response rate from 28 percent to 39 percent.
While there is a great deal that we do know, there is also a lot that we do not know, including how many incarcerated parents have child support orders and how many people are incarcerated for nonpayment of child support. Having this information could greatly inform both child support and criminal justice policy in the states.
Questions to Consider:
- How many noncustodial parents are incarcerated in county jails for failure to pay child support?
- Do these parents have the ability to pay the amount of support that is court-ordered, or the amount required to get out, or stay out, of jail?
- What is the cost of incarceration in county jails?
- How much child support has been collected by using civil contempt?
- How much child support has been collected by using diversion programs?
- What administrative or judicial process exists to adjust child support once a noncustodial parent is incarcerated?
- Is incarceration treated as voluntary or involuntary unemployment?
- Can incarcerated noncustodial parents modify their child support orders?
- Can the agency or judicial entity automatically modify a child support order?
- Will debt and interest accrue while the parent is incarcerated?
NCSL staff in D.C. and Denver can provide comprehensive, thorough, and timely information on critical child support policy issues. We provide services to legislators and staff working to improve state policies affecting children and their families. NCSL’s online clearinghouse for state legislators includes resources on child support policy, financing, laws, research and promising practices. Technical assistance visits to states are available to any state legislature that would like training or assistance related to this topic.
The Denver-based child support project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or email@example.com.
NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child support issues before Congress and the Administration. In D.C., Rachel Morgan at (202) 624-3569 or by e-mail at firstname.lastname@example.org.
The child support project and D.C. human services staff receive guidance and support from NCSL’s Standing Committee on Health & Human Services.
- Federal Office of Child Support Enforcement, State-by-State-How to Change a Child Support Order
- New York Times Series on Collecting Child Support Without Making Matters Worse
- Federal Interagency Reentry Council
- White House Council of Economic Advisors, Economic Perspectives on Incarceration and the Criminal Justice System
- NCSL’s Child Support and Family Law Legislation Database
- NCSL’s State Sentencing and Corrections Legislation Database
- NCSL’s Trends in Sentencing and Corrections Report
- NCSL’s Child Support Homepage
- NCSL’s Principles of Effective State Sentencing and Corrections Policy report
- NCSL’s Ex-Offender Employment Opportunities 2011 report and January 2014 update, see Issue in Focus section
- NCSL’s Pretrial Diversion resources
LINK TO ARTICLE: http://www.ncsl.org/research/human-services/child-support-and-incarceration.aspx