NOTE: Hyperlinks provided in this policy fax briefing were correct as of the time of publication of this fax briefing.

March 1999 - Vol. 1, No 1

• Minnesota Supreme Court Nullifies Administrative Child Support Enforcement Procedures
• Deadbeat Parents Punishment Act of 1998
• Child Support Performance and Incentive Act of 1998
• Child Support Pass-Through Legislation
• Recent Welfare Hearing Decisions Related to Child Support
• Sanctions for Non-cooperation with Child Support Enforcement
• On the Bookshelf

Minnesota Supreme Court Nullifies Administrative Child Support Enforcement Procedures

On January 28, 1999, the Minnesota Supreme Court ruled that the state's administrative child support process (created by Minnesota Statute 518.5511) is unconstitutional. The court found that the administrative child support process violates the separation of powers doctrine by:

1. infringing on the jurisdiction of the district court
2. creating an administrative body which is not inferior to the district court
3. permitting child support officers to practice law.

Many states conduct child support procedures outside of a judicial system, assigning to Administrative Law Judges, Family Court Commissioners, Child Support Officers powers normally reserved for judges of the court. The administrative system is intended to streamline child support proceedings so that cases can be handled without the delay often involved in court cases.

In its ruling, the state Supreme Court states that Administrative Law Judges (ALJ) had been given powers comparable to a district court as well as the power to modify district court decisions, raising "grave separation of powers concerns." Minnesota child support officials defended the administrative procedures by contending that there is adequate judicial supervision of the system due to the availability of appellate review. However, the Court found this argument "particularly troubling in this instance, as many participants in the administrative process lack the resources to mount an appeal."

The Court also declined the state's proposal to reformulate the separation of power doctrine so that administrative procedures are constitutional if guided by the principle of efficiency, public policy, and the availability of judicial review. In the Court's opinion, "such a relaxed test would impinge upon the powers conferred upon the judiciary by the state's constitution. Under appellants' test, it is hard to discern any limiting principle that would not yield to the legislature's sincere efforts to address public concerns with a newly designed, 'efficient system' that allows appellate review."

The Court was also uncomfortable with the role of Child Support Officers in the administrative process, which allowed them to draft pleadings and appear at hearings to represent the public authority without attorney supervision. The Court found that Child Support Officers were engaging in the practice of law, without the disciplinary authority of the court.

The ruling requires the Minnesota legislature to amend its laws in accordance with the decision. The full opinion for this case can be obtained on the internet at http://www.courts.state.mn.us/library/archive/supct/9901/c797926.htm

Deadbeat Parents Punishment Act of 1998

Recent changes in the law regarding nonpayment of child support could have significant impact on noncustodial parents who are unable to pay their child support obligations. The Deadbeat Parents Punishment Act of 1998 (Public Law 105-187) was sponsored by Rep. Henry Hyde (R-Ill.) and signed into law on June 24, 1998. The legislation creates two new categories of felony offense, with penalties of up to two years in prison. The first category applies to travel in interstate or foreign commerce with the intent to evade payment of child support if the obligation remains unpaid for longer than one year or is greater than $5,000. The second category of felony applies to an obligation that has remained unpaid for a period of longer than two years or is greater than $10,000 for a child residing in another state when the failure to pay support is willful. Both categories will result in a fine and/or imprisonment up to two years, along with mandatory restitution. A significant change made by the law is that "willful failure" to pay child support can be presumed by the very existence of a support order that has not been paid. Although the law is intended to affect the most extreme cases of nonpayment, it could be applied to low-income fathers when they have not met child support obligations, regardless of their ability to do so or their knowledge of the amount owed.

Child Support Performance and Incentive Act of 1998

This new legislation authorizes the implementation of a restructured incentive payment system for states' child support collection efforts. Currently, incentive payments are based on the actual amount of child support collected and the state's cost efficiency. There is no limit on the amount of federal incentive payments a state may receive.

HR 3130 changes the incentive structure in several ways:

1. Incentive payment funds will be capped, creating an "incentive payment pool";
2. A state's "collections base", against which performance is measured, will give twice the weight to collections made on behalf of current and former public assistance families than it will to non-public assistance families, which is intended to encourage states to pursue public assistance families in spite of the difficulty in maintaining cost efficiency when doing so;
3. The state's performance in five areas: paternity establishment, support order establishment, collections on current support orders, collections on arrears, and cost-effectiveness. (These changes will allow states to receive incentive payments for establishing paternity and setting orders even when a noncustodial parent's income or circumstances will not result in collections.)
4. The state's performance in relation to other states.

An additional change requires states to spend incentive payment funds on IV-D or IV-D-related activities, preventing the use of these funds for purposes unrelated to the child support program.

The new law will also strengthen enforcement of medical support orders, requiring that all child support orders include medical support and that any health insurance orders be enforced whenever such insurance is available to the noncustodial parent at a reasonable cost. The requirements will be effective beginning October 1, 2001.

Child Support Pass-Through Legislation

Sen. Kohl (D-Wis.) plans to reintroduce the "Children First Child Support Reform Act of 1998" in the next Congress. The bill seeks to expand the pass-through and disregard of all child support collected on behalf of families receiving Temporary Assistance for Needy Families (TANF), and would replace the accounting and record keeping system required under the current statutes with a simple straightforward distribution policy. For more information, or to voice support for the bill, contact Eilleen Hatten, Office of Sen. Herb Kohl, (202) 224-1888.

Recent Welfare Hearing Decisions Related to Child Support

The Greater Upstate Law Project of the Western New York Law Center has summaries of recent welfare fair hearings decisions posted on its website (http://www.wnylc.com/). Several of these address child support issues. In two decisions recipients challenged sanctions for non-cooperation with child support requirements (Pennsylvania) and for failing to locate an absent parent (Delaware). In a class action suit, Michigan' policy of terminating Food Stamps for children whose parents do not cooperate with child support and paternity establishment was found to be impermissible. These and other cases are summarized briefly, and contact information for the lawyers involved in each case is provided on the website page.

Sanctions for Non-cooperation with Child Support Enforcement

The Center on Law and Social Policy (CLASP), together with the federal Office of Child Support Enforcement has conducted a survey of state policies regarding child support cooperation requirements. Among the issues reviewed was whether states automatically sanction TANF recipients for failure to provide specific information on the noncustodial parent. While the majority of states do not have such an absolute requirement (e.g., allowing for recipients to attest to a lack of information), a few states do have strict cooperation requirements:

Idaho: Recipients must provide specific information or the entire family will be considered ineligible for TANF.

New Jersey: State policy is considered uncertain in that it provides multiple opportunities to provide information but may render the entire family ineligible to receive TANF.

New Mexico: Recipients must provide specific information or will face sanctions of 25% initially, 50% after the first month and ultimately denial of application.

Oklahoma: Recipients must provide specific information or face a 25% sanction.

Virginia: Recipients must provide specific information or the adult is rendered ineligible and payments for children will be made through a third party. Over a set period of time, specific actions will be taken that might result in suspension of the entire grant or the adult portion.

On the Bookshelf

Lost Fathers: The Politics of Fatherlessness in America. 1998. Edited by Cynthia R. Daniels, this volume of nine articles is based on a conference sponsored by the Center for the Critical Analysis of Contemporary Culture at Rutgers University, held in May 1996. Articles are included from authors representing widely divergent opinions in order to articulate the range of debate within the fatherhood field.

Fathers Under Fire: The Revolution in Child Support Enforcement. 1998. Edited by Irwin Garfinkel, Sara McLanahan, Daniel Meyer and Judith Seltzer. The articles in this volume focus on the effects of increased child support enforcement on nonresident fathers, and are organized into three parts:

1. What are the Policies and Who are the Fathers?
2. How Does Child Support Enforcement Affect Fathers?
3. Should We Do More to Help Fathers?

Noteworthy in this volume is the recognition by several of the authors that between 30 and 40% of noncustodial parents who do not pay child support have annual incomes below $6,500. The authors note that, for these fathers, enforcement of child support obligations which are unrealistic and onerous is not likely to save money and could do a lot more harm than good.