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August 5th, 2012 by Robert Franklin, Esq.
The U.S. Administration for Children and Families has issued a directive that may substantially reduce states’ power to incarcerate non-custodial parents for failure to pay child support.  Read about it here (The Nerve, 7/30/12).

Last year, the United States Supreme Court ruled that child support debtors who faced jail for non-payment had no right to have an attorney appointed at state expense to represent them.  The ruling by Justice Steven Breyer was a classic case of a former corporate lawyer and Supreme Court Justice with no concept of what indigent fathers actually face when charged with contempt.  Far above the fray in his Supreme Court office, surrounded by clerks who are the cream of the law school crop, Breyer imagined a scenario in which the very judges hearing the cases would assist penniless fathers in understanding and asserting their rights.  Almost simultaneously with Breyer’s ruling, Atlanta attorney Sarah Geraghty described what actually happens in those cases.  When faced with a courtroom full of child support debtors, many of them indigent and many more unable to understand or assert their rights, judges routinely allocate a matter of seconds to each case.  Where Breyer got the idea that those judges have the time, the patience, the inclination or indeed the ethical obligation to, in essence, represent those fathers against the state that pays their salaries is anyone’s guess.  But the truth is they don’t and won’t.

That seems to be where the ACF directive comes in.

Potentially thousands of South Carolina child-support enforcement cases are on hold because the federal government contends the state isn’t doing enough to protect the rights of indigent parents facing jail time for not paying child support…

A primary goal of the federal directive, which applies to all states administering federally supported enforcement plans, is to make jail time a last resort for parents who are behind on their child support payments but don’t have the ability to pay. Critics of South Carolina’s family court system claim some judges have turned jails into modern-day debtors’ prisons.

That in turn has spurred the South Carolina Supreme Court to issue its own orders to county clerks.

In a July 19 administrative order, S.C. Supreme Court Chief Justice Jean Toal indefinitely suspended a family court rule allowing county clerks of court, in certain cases, to issue orders directing parents to appear in court to explain why they are behind in their payments.

If parents fail to appear in court as ordered, family court judges can issue bench warrants for their arrest.

Toal in her order said that based on a directive from the federal Administration for Children and Families, the S.C. Department of Social Services won’t request the issuance of court-appearance orders or bench warrants in federal “Title IV-D” cases “until further notice.”

On any given day, there are some 1,500 parents behind bars in South Carolina for failure to pay child support.

The number of child support cases affected by Toal’s order is unknown, though it could easily be in the thousands. As of June 30, DSS was handling 156,619 Title IV-D cases in which there were court orders to pay child support, according to agency records.

Those cases include custodial parents who sought DSS’ help in collecting child support, and a smaller percentage of cases in which DSS took child-support collection action against non-custodial parents as reimbursement for state and federal welfare payments to custodial parents.

Toal’s order does not affect private child support cases.

And of course, what puts teeth into the federal directive is money.  The ACF doles out billions of dollars every year to states as reimbursement for administrative costs and “incentive programs” and South Carolina surely wants its slice of the pie.

Federal dollars could be at risk if South Carolina doesn’t comply with the directive from the Administration for Children and Families, a division of the U.S. Department of Health and Human Services, McKeown said. For the fiscal year that started July 1, more than $27 million in federal funds was appropriated to DSS to help cover operating expenses of the agency’s Child Support Enforcement Division, according to agency information.

So expect to see South Carolina and every other state to institute processes to comply with the requirements of the ACF that disburses the funds.  Indeed, it looks like South Carolina is doing that even now.

Larry McKeown, director of DSS’ Child Support Enforcement Division, told The Nerve on Friday that the S.C. Supreme Court’s order was modified last week to limit the suspension period to 30 days. He said his agency could have new federally approved procedures in place as soon as this week.

“That is our goal – working with the feds to make sure to get their blessing,” he said.

I can believe it.  My guess is that letting $27 million in federal funds go elsewhere isn’t likely.

Meanwhile, the ACF requirements are actually more stringent than what the Supreme Court laid out.

The federal directive “goes beyond” the U.S. Supreme Court ruling in part by requiring DSS to do additional screening of parents before civil-contempt hearings to determine if they have the ability to pay their back support, McKeown said.

“The federal policy does not want this (potential jail time) to be a default position,” McKeown said, though he added, “We think that the powers-of-contempt remedy is a very effective tool for collection.”

So, for the time being, it’s nice that the feds seem serious about keeping indigent fathers out of jail.  It’s not only the reasonable thing to do, it’s humane.  Parents in jail can’t pay child support and jailing someone because he doesn’t have the money to pay stoops to a Dickensian level of elite brutality.  As we know, the federal Office of Child Support Enforcement long ago said that 62% of child support debtors report earning under $10,000.  In that same report, the OCSE begged state judges to start setting support at levels fathers could actually pay.  But to no avail.  States have gone right along setting support levels too high and making downward modifications costly, time-consuming and unlikely to be granted.  The result, when combined with fees and interest on arrearages, is a nationwide child support debt that runs to the many billions of dollars, continues to rise and will never be paid.

How long will this particular policy last?  My guess is that it’ll last until the next grandstanding politician discovers that he/she can win votes with a “get tough on child support” stance.  Then we’ll see the administrative directive changed to allow states to do the bare minimum required by Supreme Court precedent.  That will be followed by the ridiculous sight of state judges pretending to care about whether a poor man goes to jail or  not.  And it’ll all be perfectly legal, perfectly constitutional and no one will have any recourse because a few privileged, well-to-do justices haven’t a clue about the life of the poor or the “justice” they receive in the courts of The Land of the Free.

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