Child support is a vital source of income for millions of children and their custodial parents who receive the payments.
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Child support is a vital source of income for millions of children and their custodial parents who receive the payments. In 2003, the Office of Management and Budget recognized child support as one of the most effective programs in federal government, and it is widely credited for keeping children and their families out of poverty. In 2018, 22 million children under 21 were eligible to receive child support, according to Census Bureau survey data.
State legislatures have enacted laws focused on noncustodial parents who do not, or are unable to, pay child support. These policies overlap into criminal justice. Noncustodial parents with child support orders can intersect with the criminal justice system in two primary ways:
A noncustodial parent is not in compliance with a child support obligation and that noncompliance leads 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.
A noncustodial parent is incarcerated for a criminal offense and has a current or delinquent child support obligation. In this case, the parent’s incarceration is not due to failure to pay child support orders, and incarceration is often for longer periods of time and in a state or federal prison.
As the graphic below illustrates, the distinctions between being incarcerated for failure to pay child support and having child support orders while incarcerated for a separate criminal offense are significant. So are the approaches to improving incarcerated parents’ compliance with child support orders. Child support obligations also factor into the release and reentry of parents.
Federal Rule on Child Support
In December 2016, the federal Office of Child Support Enforcement published a final rule updating the policies regarding child support enforcement. This was further amended with technical corrections in an updated final rule in 2020. These rules are intended to increase the effectiveness of the child support system for all families and provide for more flexibility in state child support programs. In an effort to accommodate the ever-changing world of technology, these rules also help remove barriers, such as requiring paper documents or written signatures. These updates help to improve efficiency and simplify the process of collecting and distributing child support. While the provisions are, for the most part, optional and do not require state legislation in most states, they do provide an opportunity for state legislators to clarify their child support enforcement laws.
The 2016 rule addresses incarcerated noncustodial parents, incarceration for failure to pay child support and modification procedures for incarcerated noncustodial parents in the following ways.
Incarceration for Failure to Pay Child Support: the 2016 rule requires states to implement due process safeguards from the 2011 Supreme Court case Turner v. Rogers. Turner v. Rogers 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. The 2016 final rule addresses the use of civil contempt in child support cases and seeks to reflect the ruling of Turner v. Rogers.
Incarcerated with a Child Support Order: the 2016 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, the rule specifically addresses incarcerated noncustodial parents and their ability to have a child support order reviewed and potentially modified during their incarceration. The 2016 rule prohibits states from treating incarceration as voluntary unemployment for purposes of modifying a child support order.
The 2016 final rule, as well as revisions to the 2020 final rule, made significant changes to improve the program’s efficiency and provide greater flexibility for the states. For more about the final rule, visit the Office of Child Support Enforcement’s Final Rule.
Incarceration for Failure to Pay Child Support
When parents fail to pay child support, they can face legal ramifications, including civil contempt of court, criminal charges and incarceration. Recognizing that most parents cannot pay child support when they are incarcerated, many states have established programs to help parents meet their obligations—both before and as a part of the civil contempt process. These programs include examining child support orders to reflect realistic payment amounts given the individual’s circumstances and diversion programs to reduce incarceration rates and increase child support payments.
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