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June 2003 - Vol. 5, No. 6
Study Compares State Child Support Practices
A recent study for the U.S. Office of Child Support Enforcement
(OCSE) looked at state practices used to establish child support
orders. Nine states were studied with a particular interest in differences
between administrative and judicial processes. Among the report’s
findings:
- Using a taxonomy devised to identify the level of a state’s
child support processes, 26 states were identified as judicial,
17 as using a mixture of judicial and administrative processes
(quasi-judicial), and 8 were primarily administrative. The actual
process for establishing orders varied within states and even
across offices, however. Procedures were sometimes determined
by staff preferences.
- The nine states vary widely in terms of what is considered
service of process (by which states notify noncustodial parents
of the intention to establish child support). States whose child
support processes are administrative tend to use certified mail
for service of process, and judicial states were more likely to
use in-person (via sheriff or private process server) service.
- A state’s use of judicial procedures for establishing
child support orders does not ensure that a client will see a
judge or enter a courtroom, but only links the process to a court
calendar and court clerks. In judicial states, efforts are often
made to have a client stipulate (agree) to a support order in
order to avoid a hearing and expedite the establishment of the
order. In the judicial states studied, only contested cases actually
went before a judge.
- In Colorado, counties differed in whether caseworkers calculated
debt owed to the state or retroactive support.
- Seven of the nine states use minimum wage at 40 hours per week
to impute (ascribe) income in the absence of financial information.
The other two states used a higher standard (e.g., average wage
in the state) for imputing income. Income is imputed when there
is no available financial information on which to base an order,
or when the noncustodial parent is not present at the establishment
of the order.
- Caseworkers in administrative states often have discretion to
deviate from state child support guidelines, while their counterparts
in judicial states do not. States reported that generally guidelines
are presumed to produce the correct child support order, however,
and that deviations from the guidelines are rare.
- States did not track default rates, but interviews with child
support staff indicated an estimated default rate of 20-35% for
all orders.
The report, Administrative and Judicial Processes for Establishing
Child Support Orders, June 2002, was prepared by the Lewin
Group and is available at www.acf.dhhs.gov/programs/cse/.
Go to Policy Documents, Dear Colleague Letters, DCL03-15. As of
this writing, the report was not available at the Lewin Group website.
House Votes to Extend TANF through Fiscal Year
On June 11, the House of Representatives passed an extension of
the Temporary Assistance for Needy Families (TANF) program (H.R.
2350) by a vote of 406-6. The action would continue the TANF program
with no major changes to policy or funding through September 30,
2003. The extension is likely to be taken up in the Senate soon.
Reauthorization of the TANF program is expected to occur in July.
Points of continued disagreement between the Senate and House versions
of reauthorization legislation include the extent of a work requirement,
allowable work activities, child care funding, superwaiver authority
and child support provisions.
A good resource for following TANF reauthorization is the website
of the Midwest Partners, www.midwestpartners.org.
Wisconsin Supreme Court Rules on Child Support Modification
During Incarceration
On June 25, the Wisconsin Supreme Court upheld a Court of Appeals
decision that refused the child support modification request of
a father whose income was reduced from almost $2,000 per month to
$60 per month during his 3-year period of incarceration. The father
had argued that his $543 monthly child support order was impossible
for him to pay given his current incarceration and lack of assets,
and that the resulting $25,000 debt would be insurmountable for
him upon release. While the Court found it appropriate to consider
incarceration as a factor when reviewing a request for a modification,
it was persuaded against the modification request by the fact that
the father had a relatively short sentence and, according to the
court, would not be prevented from earning his former salary upon
release. The Court also considered the nature of the father's criminal
history, which involved repeated arrests for driving while under
the influence of alcohol and cocaine possession to be moral grounds
that a court may appropriately consider in determining whether to
grant a child support modification to an incarcerated parent.
The majority stated, however, that a longer sentence could tip
the balance in favor of a modification, and that incarceration could
not be considered analogous to "shirking" (intentionally
avoiding) one’s child support obligation. The majority opinion
also noted that this was not a clear-cut case and that there are
factors weighing both ways in this case. Yet the court was not prepared
to overrule the decision of the trial court because the majority
believed the trial court had looked at the appropriate factors in
this type of case.
In her dissent, joined by Justice Ann Walsh Bradley, Chief Justice
Shirley Abrahamson noted that:
- Failure to modify child support for incarcerated noncustodial
parents with no assets undermines the goal of maintaining a child’s
standard of living in both the short term and the long term, and
is not in the best interest of children.
- She agreed with the Amicus Brief jointly submitted by the Center
on Fathers, Families, and Public Policy and the Wisconsin Council
on Children and Families that "child support orders that
are beyond a noncustodial parent’s ability to pay are not
in the best interests of the child."
- The consequences of incarceration for future employment are
significant and would contribute to the difficulty of paying off
the accumulated debt upon release.
The case is In re the Marriage of Toni L. Rottscheit v. Terry
L. Dumler,
Case number 01-221.
OCSE Issues Changes to Child Support Regulations
The U.S. Office of Child Support Enforcement (OCSE) has issued
final regulations that implement changes made to child support laws
by federal legislation, including the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Child
Support Performance and Incentive Act of 1998. The regulations have
been distilled and summarized by the Center for Law and Social Policy
(CLASP) in a memorandum by Paula Roberts. Some of the analysis of
the substantive changes and issues brought about by the regulations
are copied (with permission) verbatim here:
- The former regulations contained a provision that, once all
[child] support had been properly distributed, if there was money
left it was to go to the family. This provision was deleted from
the Interim Final regulation. CLASP requested that the provision
be maintained so that it was absolutely clear that a state could
not retain more in child support than it had paid in benefits
to a family. OCSE declined to do this since the statute is clear
on this point. However, it did state that, ”…the basic
principle of ensuring that the State never retains more assigned
support collections than the total amount of assistance paid to
the custodial parent is still in effect. This provision is found
in section 457(a)(1)(B) of the Act (see also two Action Transmittals
on distribution, OCSE-AT-97-17 and OCSE-AT-98-24).”
- The Response to Comments reiterates that state income tax intercepts
are to be distributed under the family-first distribution rules,
not the rules applicable to federal tax intercepts. This is very
important to post-assistance families. Under 42 USC § 657(a)(2),
this money is supposed to go to these families until all of their
arrears are paid. However, some states have been retaining these
funds to pay arrears owed to the state under the public assistance
assignment. OCSE clearly states that this is wrong: “There
is no discretion in federal law to allow State income tax refund
offset collections to be distributed like federal income tax refund
offsets. 68 Fed. Reg. 25295. Advocates may wish to check
with their state to make sure these funds are being distributed
properly.
- The new regulations make explicit that states must adjust orders
to provide for children’s health care needs even if no change
in cash support is necessary. 45 CFR § 303.8(d). The final
regulations do not make other major changes in medical support.
However, the Response to Comments does discuss what happens when
an order requires the noncustodial parent to provide private health
care coverage, but the custodial parent already provides such
coverage and does not wish to switch to the noncustodial parent’s
coverage. The Response sates that the state agency should seek
to have the order changed. As long as the order requires the noncustodial
parent to provide private coverage and such coverage is available,
the agency must enforce the order and send the noncustodial parent’s
employer the National Medical Support Notice. 68 Fed. Reg.
25300. While consistent with the law, the guidance is at
odds with common sense as well as the recommendations of the congressionally
established Medical Child Support Working Group.
The memorandum is available at www.clasp.org.
States Conduct Sweeps Timed To Coincide With Father’s
Day
Several states used Father’s Day as an opportunity to arrest
fathers who owe child support. It is not clear from available information
whether or not states made efforts to distinguish between able-paying
and low-income fathers in conducting the sweeps.
- In Cook County, Illinois, where 72 fathers were arrested, the
county sheriff is quoted as saying that the Illinois Department
of Public Aid generated many of the warrants. This would suggest
that much of the child support owed by the noncustodial parents
who were arrested was support that had been assigned to the state
as reimbursement for public assistance, and was not destined for
their children.
- In New Jersey, a three-day state-wide sweep led to 717 arrests
for nonpayment as well as for failing to appear at court hearings
to establish a child support order or order for medical support.
- In the state of Washington, 90 people were arrested as part
of a sweep in King County. The county has arrested more than 300
this year on civil-contempt warrants. In Clark County, 15 were
arrested.
- Dallas County, Texas is reported to have served 800 warrants
for nonpayment of child support as part of a statewide sweep.
Contempt-of-court charges will be filed against these parents
for failure to appear in court and failing to pay child support.
- In Tift County, Georgia, 40 people were arrested in a crackdown
on nonpayment.
Census Bureau Finds Hispanics Largest U.S. Minority
The Hispanic population in the U.S. has become the largest minority
group, according to new figures released by the Census Bureau. In
July 2002, 38.8 million Hispanics, or 13.4% of the total population,
lived in the U.S., slightly more than the U.S. African American
population of 38.3 million. High population growth since the 2000
census was conducted accounts for the milestone having been reached
earlier than expected. Earlier estimates anticipated that Hispanics
would become the country’s largest minority by 2014, but in
the two years since 2000, Hispanics have accounted for more that
half of the total U.S. population growth. Three in five Hispanics
who live in the U.S. were born here. The report is available at
http://eire.census.gov/popest/data/national/asropopbriefing.php.
Please Note:
The next Policy Briefing will be available in August.
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