Vicki Turetsky is the commissioner of the federal Office of Child Support Enforcement (OCSE) and, within the understandable parameters of that job, a very good one. As with any bureaucrat, she’s limited in what she can accomplish, but Turetsky has always demonstrated a balanced understanding of the child support system. She’s no “higher support orders mean more support” type of fanatic. “Lock ’em up and throw away the key” has never been her approach to non-custodial parents who can’t pay.
Indeed, it’s been Turetsky who over the past few years has gone on record pleading with states to be reasonable in setting child support guidelines. Her reports have been the ones pointing out that over 60% of non-custodial parents who are behind on their orders earn under $10,000 per year.
But that’s been only hortatory. Beyond her personal desire to make the child support system make some sense, those statements meant nothing.
But with the publication in the Federal Register of proposed new rules on child support, all that changes. The proposed rules state the intention of the OCSE to require states to do a number of things that would bring child support orders a long way toward responsibility and common sense. They’d also mean that non-custodial parents would be more likely to pay what they owe, less likely to fall behind, and less likely still to be incarcerated for failure to pay.
Click here to go to the publication in the Federal Register. From there, go to pages 68553 to 68557 for the pertinent proposed rules. You’ll find them under the heading “Section 302.56: Guidelines for Setting Child Support Awards.”
The OCSE’s publication in the Federal Register begins by reciting some of the applicable research on child support.
A growing body of research finds that compliance with child support orders in some States, regardless of income level, declines when the support obligation is set above 15–20 percent of the obligor’s income, and that orders for excessive amounts result in lower, not higher, child support payments.14 States like California and Washington have found that the direct result of establishing support obligations that exceed the ability of obligors to meet them is unpaid arrearages. Most arrearages are owed by noncustodial parents with earnings under $10,000 and are uncollectible.15 Research finds that high arrearages substantially reduce the formal earnings of noncustodial parents and child support payments in economically disadvantaged families, while reducing unmanageable arrearages can increase payments.16 Accumulation of high arrearage balances is often associated with incarceration, because parents have little to no ability to earn income while they are incarcerated, and little ability to pay off the arrearages when released due to lack of employment.
Stated another way, when parents have a manageable child support order, they tend to pay it; when the level is set too high, they know they can’t pay it, become discouraged, and pay little or nothing of what they owe. That’s particularly true of low-income parents. The only thing states get out of setting support levels too high is massive arrearages, and, I would add, a massive state bureaucracy whose job it is to collect money all know to be “uncollectible.” The optimum level of support appears to be around 15% of the non-custodial parent’s income. Anything above that tends to result in lower payments, not higher.
So one of the proposed new rules would require states to set orders at levels that parents can actually pay. It’s amazing that, at this late date, we should have to be fighting that particular fight. In a saner world, it’d be a given that orders would be set that way, but the child support world has never been called sensible.
Another part of that concept is that modifications should occur in ways that would reflect the non-custodial parent’s ability to pay. Likewise, orders should be based on actual evidence of parents’ earnings. That means judges would be required, in all but the rarest of cases, to hold hearings, gather information on the ability to pay, and issue orders based thereon. In other words, default judgments should be a rarity and, most importantly, so should imputation of income.
Setting child support orders that reflect an actual ability to pay is crucial to encouraging compliance, increasing accountability for making regular payments, and discouraging uncollectible arrearages. On January 30, 2013, the National Child Support Enforcement Association issued a policy statement indicating that: ‘‘As a general rule, child support guidelines and orders should reflect actual income of parents and be changed proactively to ensure current support orders reflect current circumstances of the parents and to encourage regular child support payments. Presumed or default orders should occur only in limited circumstances.’’
Then there’s the little matter that many states consider a parent’s incarceration to be “voluntary unemployment.” Really. For purposes of deciding child support, those states assume that a father who’s in jail went there intentionally to avoid paying child support. They therefore refuse to abate his payments with the result that he gets out of prison burdened with tens of thousands of dollars in unpaid child support debt, plus interests and fees. That’s a debt that will never be paid but will make his life on the outside essentially impossible.
That’s the background. The actual proposed new rules begin on page 68555.
First, only the “actual earnings” of a non-custodial parent will be able to be used in calculating child support.
Second, states will be required to include in their child support guidelines a basic subsistence level of income the non-custodial parent will be able to maintain. Income considered for child support calculations will only be that which exceeds that subsistence level. Some states already incorporate such a subsistence income into their guidelines, but many do not. The new rules would require all states to do so.
Third, while discouraging the imputation of income, the new rules allow it in cases in which “the noncustodial parent’s lifestyle is inconsistent with earnings or income and where there is evidence of income or assets beyond those identified.”
Fourth, the proposed rules would prohibit states from considering incarceration to be “voluntary unemployment.”
Fifth (p. 68557), if a parent is hauled into court in contempt proceedings for failure to pay, the new rules would require states to allow the parent a subsistence living before he can be held in contempt.
In addition, we encourage States to develop procedures to take into account the noncustodial parent’s subsistence level in other child support enforcement procedures such as credit bureau reporting, license revocation, State tax refund offset, and liens.
Sixth, the OCSE rules would require judges to make written findings of fact based on actual evidence produced in court that a parent held in contempt is actually able to pay but refuses. That’s an attempt to make states comply with the requirements of Turner vs. Rogers decided by the U.S. Supreme Court in 2011.
Seventh, the rules would require states, as part of their child support enforcement systems, to provide low-income parents job services to help them train for, obtain, and keep employment.
Those are far from the only proposals made by the OCSE to change its rules on state child support systems, but they’re the ones that most directly impact non-custodial parents. For the most part, they’d make significant improvements in those systems.
What’s important at this point is that they’re proposed rules, not rules. That means the OCSE is now soliciting public comment on them, which further means that advocates for family court reform MUST make their voices known. Here’s the link for commenting. (In the search engine, type in the name of the document, “Flexibility, Efficiency and Modernization in Child Support Enforcement Programs.” That’ll take you to the comment page. Comments are due by January 15, 2015.)
By all means, let the OCSE know what you think and do so in an intelligent, civil way. Those who wish to keep child support levels as high as possible will be commenting, and we must as well.
This item also appears on the National Parents Organization website. —Eds.