By Christopher Zoukis
Time is growing short for the Obama administration to act on rules it proposed almost two years ago to revamp federal rules on child support.
One significant part of the November 2014 proposal from the Office of Child Support Enforcement in the Department of Health and Human Services would redefine inmates’ child-support requirements. A White House official acknowledges a final redraft of the regulations has been under review there since July, and predicts it will be adopted before Obama leaves in January.
Child-support payments are often a problem for inmates, since they have virtually no income while incarcerated and may become deeply indebted for child support payments they cannot make. An administration study in 2010 showed nearly 29,000 of the 51,000 federal inmates subject to child-support orders were not keeping up with required payments, with an average shortfall almost $24,000.
When released, inmates may face sizeable debts for missed child support payments — usually with accumulating interest, fees and penalties — adding to their obstacles to re-entering society. Most states allow modification of child-support requirements for incarcerated parents, but more than a dozen won’t permit it.
Surely it makes sense to let newly released inmates concentrate on finding employment as a first step in rebuilding their lives. Having a sizable outstanding debt or even a civil judgment for non-payment of child support makes it far more difficult to find work. In some states, child-support debt nonpayment can even send an inmate back to prison or jail — the modern-day equivalent of long-ago debtors’ prisons.
Why hand taxpayers the tab for sending ex-offenders back behind bars, when they are ready to make a fresh start? Especially since doing so in no way helps a child-support system’s intended beneficiaries. And, under the Supreme Court’s 2011 Turner v. Rogers decision, when facing possible imprisonment for child-support nonpayment, even indigent defendants have no right to assistance by a court-appointed lawyer, making incarceration for unmet child-support requirements all the more likely.
The Obama administration’s draft child-support rule would require all states to let inmates modify child-support orders, and mandate that state courts base their orders on a prisoner's actual income.
It would also end the practice, currently found in the child-support programs of a dozen or so states, of equating incarceration with “voluntary unemployment." This applies when, for example, a parent refuses to work in order to reduce earnings the state uses in calculating the amount of child support the parent must pay. In such cases, the state is authorized to look at the parent’s available assets and lifestyle, assign a more realistic figure, and block the parent from seeking a reduction in required payments.
True, the administration’s broader child-support proposal has drawn opposition from some Capitol Hill Republicans, who have attacked it as another example of the administration trying to legislate by regulation, bypassing Congress. But even if there may be debatable issues with other sections of the wide-ranging proposal, shouldn’t everyone be able to agree that it does no good to impose unrealistic payment demands on inmates, much less treat them as voluntarily seeking refuge in prison in order to shirk child-support obligations?
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.