Criminalizing Poor Fatherhood

by Tori Cook

With Father’s Day approaching, it is important to take a moment to consider an issue rarely discussed: that the overlap between our child support system and social and criminal justice policies criminalizes poor fatherhood and exacerbates economic disadvantages for their families. And while jurisdictions rarely track the number of people jailed for nonpayment of child support, it is estimated that anywhere between 25,000 and 90,000 people are currently incarcerated in jails or prisons for failing to meet child support obligations, ultimately creating a modern-day debtor’s prison for Black fathers (Hoback, 2017).

Photo by Tim Mossholder on Unsplash

Why does this happen? Unreasonably high monthly child support payments, poor social safety net programs, and “tough-on-crime” incarceration policies set poor minority nonresident fathers up for an unfair system. Out of the roughly 2.2 million people incarcerated in the U.S. nearly half are parents, at least 20 percent have child support obligations, and two-thirds of incarcerated parents are sentenced for non-violent offenses (Pew Charitable Trusts, 2010 and Rifkin, 2022). The impact of having an incarcerated parent disproportionality falls on the shoulders of Black children with one in nine Black children having an incarcerated parent compared to 1 in 57 White children (Clarke,2016). Children of incarcerated parents are more likely to live in poverty and face developmental and educational challenges. Policy reform is not only crucial for supporting nonresident fathers but also for supporting children born to unmarried partners.

The lack of available data makes it difficult to distinguish between those who are jailed directly for failed nonpayment versus those who are jailed for an unrelated offense but may still have an outstanding child support order. In 2013, 76 percent of parents who owed child support had an annual median income of $10,000 or less and their child support order represented nearly 83 percent of their income (Clarke, 2016). This regressive tax framework underlining child support policy in the US leads to higher payments for lower-income parents’ when compared to parents with higher incomes. The result: fathers with the highest required payments are usually the ones most unable to pay it.

Nearly 5 million families who receive child support have annual incomes of $20,000 dollars or less, a quarter of all noncustodial parents live below the federal poverty line, and less than half of all child support payments are paid in full (Right, 2016; Lollar, 2018; Leefeldt,2019). These statistics highlight major limitations and discrepancies of our current child support policies and practices. Interest charged on nonpayment is another barrier faced by low-income nonresident fathers. If unable to meet payments, debt or arrears are accrued, and some states have an interest rate of up to twelve percent (Pratt, 2016). Unrealistic high payment requirements and costly penalties are partly a byproduct of the inconsistent formulas and definitions used to calculate payments. Thus, the criminalization of poor fatherhood becomes the primary mode of enforcement. Social and criminal policy reform must prioritize initiatives that strengthen the social safety net — childcare, higher wages, health care, education, affordable housing — so all parents have the resources needed to raise a safe and healthy child. Unfortunately, billing poor fathers does not make their children any less poor. Under the current landscape of our nation’s child support enforcement policies, social conditions and justice practices, poverty becomes aggravated rather than alleviated.

Social and Criminal Policy

Child support enforcement policies overlap with criminal justice system in two primary ways — parents are either incarcerated for failing to make payments or they are incarcerated on an unrelated charge with an outstanding child support order. Social policy overlaps with child support policy by conditioning the custodial parents, usually the mother’s, eligibility for government assistance based on her level of cooperation with child support agencies. Another major flaw of both social and child support policy are pass-through policies where states keep a portion or the entire child support payment as reimbursement for services offered to families, instead of that money going directly to the family. One hundred percent of payments should be passed directly to the family in need to incentivize payments from fathers and to support mothers and children. The collision of social and criminal policy that conditions public assistance benefits on cooperation with child support obligations disincentives self-sufficiency opportunities for families by creating barriers to accessing resources. The father is typically penalized for being financially insecure, that penalty then creates challenges for a mother and her children, often creating even more economic distress and increasing reliant on government assistance — creating a cycle of financial hardships for all family members.

Punitive criminal justice policies and weak social assistance programs combine to create complicated, unfair, and harmful conditions for poor families and their children The issue with coupling enforcement with jail time is that parents are taken away from their children and jailed for simply not being able to meet the required payments.

Failing to pay can often result in being held in civil or criminal contempt. When found in civil contempt, the claim typically can be resolved by either paying the child support in full, serving up to 180 days in jail, or participating in diversion programs. Short-term jail sentences limit a father’s capability to provide for his children by reducing earnings, limiting employment opportunities, and hindering parental relationships. The Pew Charitable Trust’s report, Collateral Costs: Incarceration’s Effect on Economic Mobility, finds that incarceration reduces the annual family income by twenty-two percent and reduces Black men’s earnings by up to nine percent (Pew Charitable Trust, 2010). Less earnings equate to lower likelihood of fulfilling child support obligations and ultimately less support for the child and the mother. Current child support enforcement strategies trap fathers in a cyclical nature of debt and incarceration. These issues demand their own set of solutions, but incarceration has proven to be inefficient at increasing number of payments, payment frequency, and compliance to orders. An integrative strategy by American social welfare and criminal justice policy makers is needed to meet the needs of Black men and their children.

Solutions

Employment opportunities and positive family and social relationships are two of the most crucial factors in facilitating a successful transition back into society. Punitive child support enforcement policies are not conducive to supporting the reintegration of parents or promoting the well-being of children. Reentry is challenging enough. A primary reform strategy is to decriminalize nonpayment of child support by replacing incarceration with work-oriented diversion programs.

1. Work-Oriented Diversion Programs

Georgia’s diversion centers and parent accountability courts have saved the state close to $10 million dollars in incarceration costs (Hoback, 2017). Parents are housed at diversion centers and travel to and from work, allowing parents to keep their job with the hope they will be able to meet their obligations. Georgia’s parent accountability court is similar to that of drug courts, parents are required to attend education and job trainings and find employment. Similarly, Texas’ diversion program, NCP Choices Program, helps under and unemployed parents find and maintain employment. By meeting with a workforce counselor every week, spending the required hours a week looking for work, and attending court and program appointments — noncustodial parents were 50 percent more consistent in paying child support orders and were employed at a rate twenty-one percent higher than nonparticipants (Hoback, 2017). Work-oriented diversion families keep families together, lower states costs of incarceration, and support employment opportunities for nonresident fathers.

2. Standardize Calculation and Income Based Payment Guidelines

Two out of the five states with the highest cost of living have the lowest monthly child support payments, showcasing the unfair calculation and establishment practices (Custody X Change, 2019). An average child support payment can range from $400 a month to over $1,000 a month (Leefeldt, 2019). This variation across states highlights the lack of uniformity and inconsistencies across systems and across states. Creating a uniform system of establishment, collection, and enforcement will limit calculation discrepancies, remove barriers to payments, improve data collection on recipients and obligors of child support, and create a more balanced support system for fathers, mothers, and children.

Determination of payment varies by state, and in some states, judges set orders based on the amount they believe the father should be able to make, or their “potential” income, not on their actual income. Potential income is what the court believes the parent should be making, despite being under or unemployed. Setting payments on “potential” income is illogical and can create discrepancies and challenges in calculating fair and reasonable payment orders. Actual income should be the standard for setting orders to ensure that obligations reflect a father’s ability to support the child. Sensible policy would consider both parent’s actual earnings and the cost of living based on where the child lives and set payment obligations based on those factors. When fathers are incarcerated due to an inability to meet payment orders they are taken from their children and stripped from any possibility of supporting their family. Arrest as an enforcement strategy is less cost-effective for states and can often harm families.

3. Automatically Modify Child Support Obligations for an Incarcerated Parent

Since states are not required to modify child support orders if the father is incarcerated on an unrelated charge, fathers are often leaving jail with tens of thousands of dollars of debt. It is not feasible to meet child support obligations while being incarcerated, even if working while serving their sentence. The average daily wage for incarcerated workers ranges from .86 cents to $3.45 (Sawyer, 2017). Wages for incarcerated workers are lower than they were in 2001 and with the hourly wage being anywhere from pennies to a quarter per hour, making it nearly impossible to earn enough to meet minimum child support payments. Based on median prison wages, a father with two children, serving a 10-year prison sentence would owe $46,320 after serving his sentence yet would have made only $4,160 within those 10 years of working while incarcerated (Hager, 2015; Rifkin, 2022).

Another potential solution is to remove child support cooperation as an eligibility requirement for public assistance and adopting a 100 percent pass-through policy to ensure all child support payments are sent directly to the mother and child, instead of to the state for reimbursement.

Incarceration reinforces economic disadvantage among already poor fathers, fosters recidivism, creates parental disengagement, and diminishes future opportunities to acquire steady employment. Current ineffective and harmful child support, social welfare, and criminal justice policies create unnecessary challenges. Policy and program reform must balance parental responsibility and parental support, especially for low-income minority nonresident fathers and families.

Tori Cook was an intern with JPI winter 2021/spring 2022, follow her at twitter — @VictoriaL_Cook and Instagram — @victorialocook

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Reducing society’s reliance on incarceration and the justice system. We inform policymakers, advocates and the media about fair and effective justice reforms.

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Justice Policy Institute

Reducing society’s reliance on incarceration and the justice system. We inform policymakers, advocates and the media about fair and effective justice reforms.