June 20 marked the one-year anniversary of the U.S. Supreme Court decision in the Turner v. Rogers case. (See the July 2012 Child Support Report.) Mr. Turner, the noncustodial parent, was ordered to pay $51.73 per week in child support. Over the course of several years, he was held in civil contempt for nonpayment and incarcerated a number of times.
After the last hearing, Mr. Turner appealed. He alleged that his constitutional rights were violated. He argued that the due process clause of the 14th Amendment required the state to provide him with appointed counsel in a civil contempt hearing that could lead to incarceration. Neither the custodial parent nor the state child support program was represented by an attorney at the hearing.
In Turner, the Supreme Court held (based upon the circumstances in his case) that a state does not necessarily need to provide counsel to a defendant in a child support civil contempt proceeding, as long as the state provides adequate procedural safeguards. The Supreme Court said that due process does require an express finding by the state court that the noncustodial parent has the ability to pay the purge order based upon the individual facts of the case. Last month, I issued policy guidance for state child support agencies implementing the Turner decision and information about alternatives to incarceration.
As a result of the Turner v. Rogers decision, state child support agencies and courts are examining their civil contempt procedures. The goal is not to eliminate contempt procedures in cases where it may be appropriate, but instead to implement fair and cost-effective procedures that assure that families receive reliable child support payments, improve fairness and access to justice for parents without an attorney, and reduce the need for jail time. Incarceration may indeed be appropriate in those cases where noncustodial parents can afford to support their children but willfully evade their parental responsibilities by hiding income and assets. However, jail is not appropriate for noncustodial parents who do not have the means to pay their child support debts.
The first step to reducing the need for contempt hearings is to set accurate child support orders. The research is clear that setting realistic orders based on actual income can actually improve compliance, increasing both the amount of child support collected and the consistency of payment. The research says that compliance falls off when orders are set above 15 to 20 percent of a noncustodial parent’s income.
On June 28, the U.S. Supreme Court upheld the Affordable Care Act. For the 30 million Americans who don’t yet have health insurance, this law will offer an array of quality, affordable, private health insurance plans to choose from starting in 2014. Those who can’t afford insurance will get tax credits that make coverage affordable.
Already, 34 states including the District of Columbia have received 100 percent federally funded grants to set up health insurance marketplaces, known as exchanges, which will allow individuals and small businesses to compare and choose private health plans. Each state will take the lead in designing its own menu of options. In the child support program, we know that our medical child support responsibilities are evolving. We look forward to working with child support professionals in the coming months and years to develop medical child support policies that complement state health care policy decisions and work for families.
“The first step to reducing the need for contempt hearings is to set accurate child support orders. The research is clear that setting realistic orders based on actual income can actually improve compliance, increasing both the amount of child support collected and the consistency of payment. The research says that compliance falls off when orders are set above 15 to 20 percent of a noncustodial parent’s income.”
How is it possible for judges to set accurate child support orders when their pensions are salaries are directly & indirectly linked to the amounts of child support (and alimony) awarded, enforced upon & collected??? (See Title 42 USC Section 658(a)(the federal child support enforcement reimbursement incentive to the states). Judges are too tempted to artificially inflate child support orders (through such things as “imputing income” when people have been unemployed, underemployed or disabled through no fault of their own). Judges are too tempted to abuse contempt power to extort/extract monies from unsuspecting litigants/taxpayers/voters.
As a matter of state law, Kentucky requires the state to provide counsel for indigent defendants facing confinement due to their failure to provide court ordered child support in civil contempt proceedings. See Lewis v. Lewis, 875 SW2d 862 (1993).
Custodial Parents and children are currently at a total disadvantage if the non-custodial parent is self-employed. Although Child Support Enforcement has made some great progress for those situations were non-custodial parents obligated to pay child support work for wages, there is still a lot to be desired child support enforcement actions for self-employees non-custodial parents. Involving financial institutions is a great first step. How about self-employed individuals who are issued 1099s, own their own companies, or have asset overseas. CAN WE INCORPORATE MONTHLY ELECTRONIC REPORTING OF 1099 income as another pilot to help out children and custodial parent who are not receiving child support. How about once these non-custodial bank accounts are located, requiring these folks to submit their bank statement? How about running an IRS masterfile to see all the businesses associated with the social security number? There must be more that we can do. I’d love to be on a
national work group, think tank, brain storm to put to gether strategies to tackle this issue.