- Welcome, everyone, to Wednesday Nite @ the Lab.
I'm Tom Zinnen, I work at the UW-Madison Biotechnology Center.
I also work for the Division of Extension Wisconsin 4-H.
And on behalf of those folks and our other co-organizers,
PBS Wisconsin, the Wisconsin Alumni Association,
and the UW-Madison Science Alliance,
thanks again for coming to Wednesday Nite @ the Lab.
We do this every Wednesday night, 50 times a year.
Tonight, it's my pleasure to introduce to you Tonya Brito.
She's a professor in the law school here at UW-Madison,
and she is also with
the Institute for Research on Poverty.
She studied at Barnard College in New York City,
and then went to law school,
Harvard Law School in Cambridge, Massachusetts.
She specializes in family law and policy.
And tonight, she's going to speak to us
about access to justice in family court.
Would you please join me in welcoming Tonya Brito
to Wednesday Nite @ the Lab?
- Thank you, Tom, for that introduction.
It's a delight to be here tonight
to share with you the topic that I'll be discussing,
access to justice in family court.
Here's an outline of the topics I'll be going over today.
I'm gonna begin talking about
a renewed focus on civil justice problems.
It's a nationwide focus on civil justice.
We've seen a lot of news coverage about, for example,
the possibility of people being evicted
as a result of the pandemic.
The focus on civil justice problems
is much broader than that.
And a lot of groups, including the federal government,
has drawn its attention.
Then I'm going to move into a short overview
of the research context
for the project I'm going to be talking about,
specifically child support enforcement.
Here, I'll share with you legislative reforms,
primarily from the 1980s and 1990s,
focusing on some of the most prominent measures implemented
and the goals of those measures,
which focus largely on improving child support collections
for families who were entitled to receive child support
from a non-resident parent.
Then I'm going to discuss
one of the unintended consequences of those reforms,
which is the fact that the system
does not work particularly effectively
for many low-income and no income families.
In fact, it can lead to
significant monetary problems for them.
The talk today will be drawing from research findings
from a project that I've been working on.
I'll give you a sense for what the project focuses on
and also the research methods used for the project.
Part of my talk today
will then be shifting to one particular research paper
that's been published from the study,
entitled "The Child Support Debt Bubble,"
which talks about and demonstrates how poor families
can incur significant amounts of child support debt,
often referred to as arrearages,
because of the operation of the system.
I'll wrap up sharing with you the words of some of the fathers
that I interviewed as part of the study
and share their perspectives on justice and equality
in child support proceedings.
Now, I mentioned that civil justice in this United States
has been receiving renewed attention.
Recent studies have shown
that civil justice problems in the United States
are widespread and common.
Although not everyone brings their problems
to the legal system for resolution,
they experience many problems,
whether they be in employment areas,
with respect to their housing,
whether it's mortgage issues or landlord-tenant issues,
family law issues, veterans have problems.
And in addition,
we know that there are also many problems
between individual neighbors.
One finding from recent studies
shows that two-thirds of American adults
face at least one civil justice problem in any given year.
And that can often result in the loss of their homes,
loss of jobs, different kinds of benefits they might receive
like Social Security or SSI,
or even custody of their children.
So the stakes are quite high.
One of the concerns has been however,
that low-income Americans
receive inadequate assistance in this area.
They only get legal assistance
in about 14% of the problems that they reported
in the surveys that they participated in.
This raises some concerns about the impact of them
not receiving assistance in areas where they're facing,
what we often refer to as justiciable problems.
The outcomes for them can be devastating.
One project that I've worked on that I want to share with you
is called "Making Justice Accessible:
Designing Legal Services for the 21st Century."
This is a project taken up
by the American Academy of Arts and Sciences.
It's a multi-year project and it's ongoing.
What they did was they brought together scholars,
practitioners, and policymakers
with representatives from a variety of areas
that have interest in and experience
in the civil justice system to address these
and identify the problems and the challenges
that are affecting moderate and low-income individuals.
This project has resulted in several products
that are available for anyone
who's interested in learning more about the area.
One is a publication in winter of 2019
on "Access to Justice,"
producing 24 essays that are very well done,
that address access to justice issues,
and talk about the different kinds of parties
and interests that have a stake in civil justice,
and to make them accessible to the public to understand.
I've included the website link there.
If anyone wants to access that, it is not behind a paywall.
In addition, the final report was released just last year,
and the report provides an overview
of what the crisis looks like in legal services,
really with a focus on the common areas
of civil justice problems:
family, healthcare, housing, and veterans affairs,
and suggests some effective initiatives
that various jurisdictions might implement
to address these problems.
Finally, one of the challenges in the area of civil justice
is that we don't have very good data available
for people who are studying this area
to begin to address it
and determine what kinds of policies might be effective.
One part of the project
that the American Academy for Arts and Sciences took up
was to identify where do we need to collect more data.
On the civil justice side,
unlike on the criminal justice side,
there isn't routine data collection taking place
in our courts and in our government offices
on those areas that I discussed.
So this part of the study
identifies ways to collaborate more to make data accessible,
identify what kind of data will be most useful to know,
and how can we get access to it.
It also proposes a,
what we would call a sample memo of understanding
that researchers can engage in
with institutions that hold data, like the courts,
to ensure that the data is handled properly.
I wanted to share this with you to let you know
how broad the scope is of issues of access to justice.
We hear so much more
about problems in the criminal justice system,
and rightly so that we hear about those issues.
But the problems on the civil justice side
have not gotten the attention that they deserve.
I'm gonna switch gears now
and talk to you about child support.
As I mentioned, my study looks at child support,
and the project that I'll be discussing today
is a paper from those reports.
And in order to provide a context that you can understand,
I'm gonna share with you some earlier legislative reforms
and discuss in what ways this enforcement system
has not been working effectively for low-income families.
I'll turn now to the research context,
which as I mentioned is child support enforcement.
Here, I'll be talking about the legislative reforms
that were implemented at the federal level
in the 1980s and 1990s.
The goal here was to dramatically strengthen
child support enforcement.
There were significant issues
with orders being put in place, but then not followed up on.
And so individuals who were entitled to receive support
were not getting the support they were owed.
One of the most significant reforms that took place
was the implementation of what's known as wage garnishment.
With the wage garnishment,
the child support amount that is due
comes directly out of the paying parent's paycheck,
and that results in them not being in a position
to avoid paying support, because they don't have control
over the payment of support at that point.
So many parents in the time period leading up to this
would evade child support.
They would receive their paychecks
and then not pay the parent
that was entitled to receive support.
And in most cases, it was the mother
who had primary custody of the child.
And so wage garnishment
was a method that was very effective.
For families who have regular earnings and secure jobs,
the implementation of wage garnishment
has made child support payments
much more predictable and systematic.
Another innovation is what's called
new hire reporting requirements.
With this requirement,
the employer who hires a new employee
has to report that new hire to the government.
Then if there's a child support order in place,
the employer is notified about the wage garnishment
that needs to be set up through their payroll system.
Another important innovation is automated case processing,
also mass case processing.
What essentially this means is that
a shift away from a system where much of child support
was handled on an individual basis with individual workers
and child support enforcement offices handling cases,
to computerized systems
that handled it in a more automated way.
And it enhanced efficiencies,
but also reduced human error to some degree from the process.
Finally, another significant change
that was implemented in the 1980s
was the imposition at the federal level
of mandatory child support guidelines.
And the states had to adopt these guidelines
in order to continue receiving federal funding
for their child support offices.
The change with mandatory child support guidelines
is essentially that when a child support order is set,
the amount that is decided upon
is reached through a mathematical formula.
And the main criteria are the number of children
who are subject to the order and the incomes of both parents.
To some degree, if there is a significant amount
of sharing of child custody, that can be a factor as well.
Prior to this, judges exercised their discretion
in setting child support orders.
And as a result, there wasn't a lot of predictability
about what the order would be,
and there wasn't a lot of uniformity.
So two families who might have very similar profiles
in terms of their circumstances monetarily
and the number of children being similar,
might in the same courthouse with two judges
come out with very different child support orders.
And so the guidelines have served
to make those outcomes more predictable and uniform.
That doesn't mean that judges
can't arrive at a different figure.
They have different bases they can rely upon
to either increase or decrease,
but they have to identify the grounds for that
and to justify it.
Finally, the 1996 welfare reform law
also greatly changed child support enforcement as well.
The law is formerly known as the Personal Responsibility
and Work Opportunity Reconciliation Act.
And one significant imposition in this statute
was a requirement that custodial mothers
receiving welfare benefits shift from welfare to work.
And so law entered time limits
into the receipt of cash welfare benefits,
and required a certain number of hours of work
from women receiving welfare.
The shift here also was a desire for the government
to pay less out in welfare benefits
and to shift more of those costs onto noncustodial parents,
typically fathers, who would then pay more child support.
And so again, there were increased measures imposed
to make it more feasible
to shift those costs to noncustodial parents.
There was a lot of press coverage at the time
about some of the concerns
with those welfare reform measures in the 1990s.
This slide shows some of those headlines that emerged
with the rapid reduction of the welfare rolls
due to the time limits and concerns
that some of those legislative reforms
were motivated by politics rather than fiscal concerns.
There were some concerns at the time that
because the economy in the 1990s was generally quite favorable,
that these new policies
might lead to dire consequences for low-income families
when the economy experienced a downturn,
and maybe some jobs might not be available
for people who were low-skilled.
I wanna talk about child support enforcement in poor families,
because we now know, over 25 years
after the welfare reform legislation in 1996,
that indeed child support enforcement in poor families
has been quite problematic.
There is a consensus now that child support enforcement
does not operate very effectively
for many disadvantaged families.
And those families make up about a quarter
of the child support caseload.
Poor noncustodial parents
owe the majority of the child support debt,
and relative to nonpoor families,
they owe a disproportionate share of it.
I'm gonna show you a series of slides
with some of that empirical data
showing a phenomenon that is very concerning,
one that lower-income families
who are entitled to receive support
are generally not getting the support
that they are entitled to.
And these again are predominantly mothers.
So as this pie chart shows, it is a pie chart
looking at child support payments received in 2015.
Just under 40% of child support recipients
received the full amount owed.
The vast majority either received no child support
or a partial payment.
It is not uncommon in cases of low-income families
for child support payments to be intermittent
and also to fall below the ordered amount,
to essentially be a partial payment.
This next slide looks at the amount of debt
owed by reported annual earnings.
So when people don't pay their child support on time,
they end up accumulating debt, also referred to as arrears.
And so this pie chart shows among the child support debtors,
what is their annual earnings?
So we see that for people earning over $20,000,
they hold approximately 34%
of the national child support debt.
For individuals earning no income,
so these are people who are showing
that they do not have a job, they are unemployed,
they owe roughly 21% of the national child support debt.
For individuals who earn under $10,000,
they earn almost a third of the child support debt.
So we see that the vast amount of child support debt
is owed by the very poorest child support payers.
This chart is a distribution that shows child support payers,
also referred to by the legal term obligors,
and their arrears or debts.
This is a study done by the Urban Institute.
And they looked at nine of the most populous states
and examined their debt against their income.
And we can see that, for individuals
who are earning over $40,000 a year,
they only owe about 5% of the child support debt.
So families where the paying parent is at that income level,
we aren't seeing problems with non-payment of child support.
However, we are seeing very significant problems
with debt accumulation for families who are low-income.
If you look at the other end of the bar chart,
you see that people who have no reported income
owe the most debt in terms of their arrears,
they owe roughly 40% of the debt.
And again, here, people earning $0 to $10,000
owe roughly 30% of the child support debt.
And so we do see a relationship between how much someone earns
and the likelihood
that they will accumulate child support debt.
This next chart looks at the characteristics
of non-resident fathers,
child support characteristics of non-resident fathers.
So again, we're addressing individuals,
parents who do not live with their children
and owe child support.
And this is examining the amount of child support payments
they have to make relative to the income they earn.
So again, looking at families where the earnings are larger,
they labeled as not poor,
which again is roughly three-quarters of families.
The amount of the child support payment
relative to their income is 13% or less,
which is a manageable amount for most people to pay.
But for lower income families, the families who are poor,
you can see that they are paying
a much larger percent of their income on child support.
In some cases, paying 50% or more of their income
on child support.
This slide gives you a sense
for the disproportionate amount of income
that poor families are paying in child support,
which if you're poor and you're paying obviously
a larger percent of your salary on your child support,
it makes it hard to have anything left over to get by on,
and also explains why
we have such low child support payments
being paid to poor recipients of child support.
So why do child support orders exceed the financial means
of the parents who are responsible
for paying child support?
There are several reasons for this.
One is default orders.
Again, keep in mind that these are low-income individuals.
They generally do not have attorneys representing them
in these child support cases.
And so when they receive a summons to come to court
about a child support case and they don't appear,
it is very common for a default order to be entered.
The default order is often entered
based not on their actual income,
but on an income that is what we call imputed,
meaning that it is a presumed amount
that is believed that they should be paying.
The imputed amount of income
is typically a minimum wage job, working full-time.
They may themselves be unemployed,
but the order is set at an amount
assuming that they have an income.
So the initial orders often entered
don't bear a relationship
to their actual ability to pay support.
Another contributing factor,
and these sort of pile on top of each other,
is that even when a child support order
is initially entered,
sometimes retroactive support is imposed,
so that they already start out with debt
even before they started paying.
And that retroactive support order
often reflects what are called birth costs,
so whatever the cost is for hospital costs
for the birth of the child is shifted over
to the non-custodial parent at the outset.
And that can be thousands of dollars in debt.
Another factor is because these are low-income payers,
they often have a weak attachment
to the job labor force,
and sometimes often a low education level.
Maybe they don't have a high school degree,
or they have a high school degree or a GED.
Often, they have other kinds of medical problems,
and they are often in what we would refer to
as precarious employment situations,
which means that they may be working seasonal jobs,
cash jobs, temp jobs.
So their wages are inconsistent and they can fluctuate.
In the child support system,
when there is a change in one's earnings,
the payer can return to court
and petition for the child support amount to be modified
to reflect their actual earnings.
But many low-income families lacking access to a lawyer
and lacking the expertise
to operate within the court system,
which is very formal,
don't take advantage of this opportunity
or are unsuccessful when they bring a petition to the court
asking for their child support to be modified.
So they end up with a child support order
that doesn't reflect the fact
that maybe they have lost their job
or they're earning less.
Another factor is that individuals who are incarcerated
often are required to continue paying support
despite the fact that they are in jail
and unable to work at a level that they had been previously,
so debt will accumulate while they're in prison.
Another factor is that some of the individuals
who are low-income may have more than one child support order
resulting from the fact
that they have had multiple children with multiple mothers.
And so if they have several orders, those orders added up
can be an even more significant economic burden for them.
Finally, most states charge interest
on child support payments,
and the amounts of interest can be quite significant,
and can lead to the child support order
increasing quite rapidly,
because the interest rates often don't reflect market rates.
They're just whatever the state decides to impose.
And in the past, it can be anywhere from 4% to 18%.
What are some of the enforcement tools
that states use to collect support?
There are many that are available,
but there are two in particular
that are used with low-income families.
Income withholding, as I discussed before,
also called wage garnishment,
not as effective for low-income families
because of their precarious work situations.
Also garnishing state or federal benefits.
Unemployment benefits or Social Security payments
can also be garnished.
And that can sometimes take place with low-income families
if they receive those payments.
They also suspend or revoke licenses.
For low-income families,
the license that they're most likely to have revoked
is the driver's license.
For them, having a driver's license revoked
can interfere with their ability to obtain or maintain a job.
So there is a counterproductive aspect
to suspending the driver's license
for someone who has fallen behind
on their child support payments.
Also, the state will seize tax returns
or place liens on property.
For low-income families,
this particular tool is not as effective,
because often they don't have property
that one can place a lien on,
and their tax returns often are not significantly large.
Also denying or revoking passports.
Also contempt proceedings for non-payment.
These are civil proceedings, not criminal proceedings,
though they can result in incarceration.
With a contempt proceeding,
the goal is to coerce compliance,
to pressure someone who owes support to pay support.
And the idea with a contempt proceeding for nonpayment
is that the person who owes, again, the defendant,
often referred to as the obligor as the legal term,
would be held in contempt for failure to support,
but only in a situation where their failure to support
is deemed to be a willful failure to pay support,
not a situation
where they're simply too poor to pay support.
And so the violation here is a situation
where someone can pay, they have the ability to pay,
but they are willfully choosing not to pay support.
And so they are placed in jail to coerce them to pay.
And the idea is they have the money,
if you put them in jail, they will pay the money
because it's undesirable to be placed in jail.
And so it's not meant to be punishment,
as we see on the criminal side.
Here, the common phraseology
used to justify civil contempt proceedings
is that the contemnor or the delinquent child support payer
holds the keys to the jail.
As long as they pay, they can get out of jail.
The issue of low-income parents not paying child support
has been receiving a fair amount of media attention.
I mentioned earlier that the general consensus
that the system isn't really working very well
for low-income families.
And so one question is, are these deadbeat parents
or are they just dead broke parents?
And so the media taking a look at this,
many of them have been critical of the way
child support operates with low-income families,
because jailing parents is both costly
and not particularly effective in these instances,
because the parents are operating
in a very precarious job market,
and don't have as many opportunities available to them,
given some of the barriers they face obtaining secure jobs
that have a potential for advancement.
And so there has been increased focus
on potential reforms in this area
to address the problem of child support,
not only unfairly potentially incarcerating parents
who owe support but are just very poor,
but also pushing them deeper into poverty,
because they accrue so much debt
while they're not paying support.
The initial order doesn't disappear;
they just keep increasing their arrears.
Now, I mentioned I was going to be talking a little bit
about one of the papers I produced from my study.
I wanna give you a brief overview of the project
so that you understand where the data emerges from.
In this project, working with a team of researchers,
we empirically examined
the civil justice experiences of pro se,
which means unrepresented noncustodial parents
and child support proceedings.
This project involved an in-depth exploration
of the legal processes that they experienced in these cases,
really focusing on the court interactions
and examining them from multiple perspectives
and over an extended period of time.
This approach helped us to explore the meaning
that they draw from these legal interactions,
as well as the complexities
of the legal processes and outcomes.
And the hearings that we looked at
have very important access to justice implications,
and they reflect the response of a legal system
on individuals who are experiencing
systemic issues of poverty and disadvantage.
The methodology, I'll talk a little bit about,
including the research setting,
the data collection process we followed,
and our longitudinal approach,
giving you a timeline of one case to put in context
the data that we collected.
Our data involved five years of qualitative study
of civil justice experiences.
We did interviews, we did a court-based ethnography.
And we also studied transcript case files
and field notes from our observation of cases.
In addition, we did longitudinal interviews
with a sample of child support payers,
tracking their case for over a year.
The interview data included interviews
in six counties across two states.
We talked to judges, family court commissioners,
government child support attorneys and defense counsels,
and others who have relevant knowledge,
including courthouse librarians, staff at various jobs programs,
and staff at temp agencies.
We also talked to child support plaintiffs
who are primarily mothers,
and overall, we interviewed 145 individuals,
not including the child support payers.
Our ethnographic data included
observations of court proceedings in two counties.
These observations took place over almost five years.
And while we were doing this, we tried to have two researchers
simultaneously in court, observing.
And here's the data on those two sites
in terms of how many hours we spent collecting datas
and the number of cases we observed.
With a team-based ethnography,
one of the advantages is that our data collection analysis
is what we call iterative, cyclical, and self-reflective.
We were engaged in ongoing coding of the data
as we collected it.
And we staggered our visits,
so that as we analyzed the data or insights,
could inform for future data collection efforts.
The team approach,
rather than relying on one researcher individually,
heightens what is referred to as reliability
in research terminology by enhancing exposure
to multiple interpretations of the data.
And we did have a multiracial team working on the project.
And our analysis draws on the common practices,
including open-coding,
identifying outliers and negative cases
for individuals observing this report
to get you a sense for our approach
to data collection analysis.
As I mentioned, we also studied 40 defendants' cases
more closely, conducting a longitudinal study.
We looked at 20 defendants in two different field sites.
And first we did an in-depth interview with them.
Then we tracked their case for a year.
And if they had any hearings during that time,
we tried to attend,
and then interviewed them after the hearing
to find out, from their perspective,
why the hearing took place,
what they did to represent themselves,
how they understood the hearing,
and what they saw as next steps in the case.
And then we did a follow-up interview
at the end of approximately a year.
Here's one of the cases to give you a sense
for what that data actually looks like.
All of the names included here are pseudonyms,
they are fake names substituted for their real names.
So this is data, or this is the case
over the period of 2015 to 2017.
As you can see here in the gray shaded area,
that's during the period of time that we essentially conducted
our longitudinal study of this particular case,
beginning in January 19,
I mean, 2016 through April of 2017.
Here you'll see in the little white boxes,
each data collection episode.
We observed some of the hearings in the case.
We conducted interviews with him, following those hearings.
And were able to,
over the course of that approximately one year,
and I think four months or so,
attend five hearings in his case,
and interview him on four occasions about his case.
There were other events happening
in Lucas Morales's case that we did not participate in.
There was also a parallel track of custody proceedings
between him and the mother of his child.
And I've included those in that part of the slide.
As I mentioned, this is an ongoing project.
I just included here a list of publications
from this particular study.
But for today, I'm gonna be focusing on one paper,
"The Child Support Debt Bubble."
As I mentioned, one of the challenges
in child support enforcement low-income families,
or no income families is that debt can accrue,
and it can accrue to exorbitant levels.
This is something that
the child support enforcement system is well aware of,
and they themselves have been studying,
and they have produced multiple reports
that address what they refer to as
uncollectable child support debt.
And one reason it's uncollectable
is simply because the individuals who owe the debt
will never be in a position to repay the debt.
One of the phenomenons that happens in this area
is that I mentioned several factors
can contribute to this accumulation of debt.
One of them is individuals
continuing to owe and accrue child support debt
while they're in prison,
and also the interest rates imposed on child support debt.
This particular case,
Jeanetta Henderson v. Franklin Davis is a case I observed
in child support court in March of 2017.
And so I'm gonna share with you an excerpt from the transcript
to give you a sense for how that case transpired.
At the time of the hearing, Franklin Davis,
who owed child support was actually himself in prison.
And so he's participating through a phone call.
Commissioner Colwell is the commissioner
who is presiding over the hearing,
and he's getting Mr. Davis on the phone.
And the mother in the case was not present at the hearing.
And so again, these are pseudonyms.
Commissioner Colwell: "Hello, Mr. Davis?"
Franklin Davis: "Yes."
Commissioner Colwell: "This is the court calling.
Sir, are you there?"
Mr. Davis: "Okay, sir."
The other individual present for the hearing
is the state's attorney, Mr. Jensen.
He represents the interest of the child support office.
He does not represent Mr. Davis
or the mother who is entitled to receive support.
Ms. Henderson is not present.
Attorney Martha Jensen appears on behalf of the state.
Commissioner: "Sir, how long have you been incarcerated?"
I included ellipsis there
because there was an extended conversation
about why Mr. Davis was in prison and how long he would be.
They conclude he's gonna be getting out in December.
And he says, "Yes."
So Mr. Davis had filed a petition to reduce child support
because he was incarcerated
and wasn't in a position to pay child support
while he was in prison.
And so the commissioner says to him,
"What is the substantial change in circumstances
that would cause me to change your child support order?"
Mr. Davis says, "Well, I'm unemployed right now.
I can't pay anything towards my child support obligations."
Commissioner: "And why are you unemployed?"
Mr. Davis: "Because I'm incarcerated."
Commissioner: "And why are you incarcerated?"
"Because of the domestic violence issue."
Commissioner: "And so you think
you should benefit from that behavior?"
This is with a different woman.
I should just mention,
it's not with the mother of the child at issue in this case.
Mr. Davis: "No, I don't think that I should benefit from it,
"but I mean, it's just gonna accumulate.
"So it's happened once before where I was incarcerated
"and it was suspended until 60 days after my release.
"And so I figured I'd try to do it this time
"and see if I can pick back up on my obligations
"once I'm released.
It only makes sense."
Commissioner: "It only makes sense to you.
"I guess I asked that question, sir,
"because you get a benefit from doing something,
"well, one, it's not good,
and two, it's against the law, right?"
Mr. Davis: "I don't see what the benefit would be
"if I'm suspended.
That doesn't mean that I'm not obligated to pay."
Commissioner: "But for that time period, it would stop.
"That's your benefit.
Because why else would you be asking for it?"
Mr. Davis: "Is that a denial?"
Commissioner: "I'm still thinking about it
"because I'm not really sure.
It's difficult how this cuts."
Mr. Davis: "I'm already, I believe over $25,000."
Commissioner: "Correct."
Mr. Davis: "So it's possible that if I get released,
"then I could have a warrant for my arrest
for unpaid child support."
Then the state's attorney joins the conversation and says,
"No, there would have to be an order to show cause."
This is essentially an order directing him to come to court.
Mr. Davis: "When I was just out, I was paying child support.
"I was working and I've actually managed to hold onto my job.
"They're interested in rehiring me upon my release.
"So I will be immediately
"getting back to paying my obligations.
"But in this situation,
"which I understand that it is my fault for why I'm in here,
"this situation prevents me
from paying anything toward child support."
Commissioner: "Right, and I guess I'm like thinking about
"when people come in here and ask,
"because there's a disability or injury or there's something,
you know, you see what I'm saying?"
"Yes."
State's Attorney Jensen:
"The case with Ms. Henderson is the only one that's here.
"And in that case, the order's only $20 per week.
"We were getting payments in September of 2016
"and the arrears of record are 589.
"So if he owes a total of $25,000,
it's not on this case."
Mr. Davis: "Yeah, that's for the one I previously..."
State's Attorney Jensen:
"Yeah, so we're only talking about this case."
Commissioner: "Sir, at this point, I'm not finding
"that it's a substantial change of circumstance.
I'm denying your request this afternoon."
Mr. Davis: "Okay, all right, thank you."
Commissioner: "Thank you very much; good-bye."
I should clarify that the legal standard
for obtaining a change in the child support order
is a substantial change of circumstances,
as I mentioned earlier,
that can be the loss of a job or a change in one's earnings.
In this case, the payor or obligor, Mr. Davis,
had mentioned he had another incarceration experience,
and he previously was able to get
his child support order suspended
during that period of time
until he was released and able to rejoin the labor force.
In this case, the commissioner denied that request.
And so we do see across the United States,
different approaches that jurisdictions
and judges take to incarceration.
Some treat incarceration as a voluntary unemployment
under the theory that becoming incarcerated
resulted from someone's voluntary commission of a crime,
and that it would be unfair and against public policy
to excuse them from their child support debt.
Competing argument is that the reality for people in prison
is that they aren't able to pay child support
unless they have accumulated money
and bank accounts available to them.
For low-income families, that's just not the case.
And so there is a disconnection
between their actual ability to pay
and the child support they're being ordered to pay.
And as a result,
continuing the child support order while they're in prison
isn't actually putting any money into the pockets
of their families who are entitled to support,
and it's only resulting
in the additional accumulation of child support debt
while they're in prison.
We know that there are many parents in prison.
DOJ data show at mid-year in 2007,
more than half of the male prisoners,
roughly 51% of state inmates and 63% of federal inmates
were parents of minor children.
So we have many fathers in prison
who have child support orders in place
and are subject to this phenomenon
of their child support orders being held in place
and accumulating debt while they're in prison.
More than 40% of the fathers in prison were Black,
and of the approximately 1.5 million children
with a father in prison, almost half
were the children of Black fathers.
These phenomena I'm describing are falling very hard
on low-income Black fathers in particular.
Between 1991 and 2007,
the number of incarcerated parents of minors
increased by 79%, so the problem is growing.
And we also know that, at least according to one study,
one-quarter of inmates in prisons
had a child support case on the books
at the time they were incarcerated.
Here's a chart showing child support,
or interest rates on arrears that states impose.
Despite the evidence showing,
and there have been a number of reports at the state level
showing the disproportionate amount
of accumulated child support debt is attributed to interest
rather than the amount of child support
that's actually owed.
So for example, in this context, the primary factor is the fact
that states have large interest rates.
One study showed
that 27% of California's child support debt in 2000
was unpaid interest
rather than the actual child support that was owed.
Despite this evidence
showing that the interest rate that's imposed
can have almost an accelerator effect
on the accumulation of debt,
35 states continue to charge interest.
A handful have set their rates at more reasonable levels.
As the chart shows, most continue however
to charge interest in the range of 4% to 12%.
Rates that are really unwarranted in today's market,
and impose a crushing financial burden
on poor non-custodial parents.
That accumulated debt can grow quite large
when an interest rate is levied.
So this next chart
shows interest accumulation over five years.
And the amount of debt at year one is $1,000 in arrears.
And it shows how that rate of interest
can accumulate under three different interest rates.
So they can accumulate very rapidly, even on a $1,000 debt
when a high interest rate is levied.
With a 12% interest rate,
a $1,000 child support debt balloons to $1,860
in only 50 years, so almost doubling,
an increase of over 80%.
This vastly exceeds the $1,221 debt
that would accrue with a 4% interest rate.
Consider also the more than $25,000 in child support debt
that is owed by Mr. Davis,
whose hearing I just shared with you.
Standing alone, that figure
sounds enormously large by itself.
And we can readily make assumptions about him
because of the debt that he owes.
We have to ask ourselves,
so whether our perception of Mr. Davis
would change if he owed $5,000 instead of $10,000
or $10,000 instead of $25,000.
The $25,000 debt figure almost automatically
makes us think of him as maybe a deadbeat parent.
But when we consider the fact that Mr. Davis,
in fact, worked a low-wage job in a sausage factory,
and if he have a large debt of $25,000,
we have to ask ourselves,
how on earth would he have accumulated a debt of $25,000
with his very low-wage job?
And so we have to ask, what role does the interest rate pay?
So this next slide uses his case as an example
of how that 25% debt can be accelerated over time,
depending on what the interest rate is.
As mentioned earlier,
Mr. Davis had two child support orders,
$375 a month and $87 a month.
And at the time of his hearing,
his child support arrears total $25,587.
He was worried about the prospect
of accumulating more debt while he was in prison.
And that's why he filed the petition
to reduce his child support arrears.
This figure shows over the course of five years,
what his debt might look like,
depending on what kind of interest
might be imposed on him.
Here, I used a 12% interest rate
to flesh out these various simulations.
Assuming he resumed his low-wage job at the sausage plant,
figure three projects debt accumulation
with a 12% interest rate over five years
with four different simulations,
all of which demonstrate that his debt
would never be paid off.
One simulation assumes that he makes no payments
over the course of five years.
The debt obviously then would skyrocket,
nearly tripling to more than 75,000 in only five years.
The second simulation imagines
that he pays the current support in full each month,
that 500 something,
but he makes no additional payments
on the accumulated debt.
The debt would still escalate
to more than $45,000 within five years, almost doubling.
The third simulation assumes that he pays
this current support order in full each month,
and he pays an additional $100 a month
toward the arrears.
And this is very common for parents
to have a total monthly child support obligation
that essentially includes two payments:
one payment is the current support order,
and then a smaller payment, which is an additional payment
to try to pay down on the accumulated debt.
And that additional payment
can be anywhere from around $10 a month
to maybe $100 a month or more.
And that's a repayment toward arrears.
So in this third scenario,
we would leave him with only $600 a month to live on
after deducting child support from his monthly earnings.
Even in that scenario,
where he's paying the full amount of child support
and $100 towards debt,
he would never pay off the arrearage.
It would grow even though he was paying almost $700 a month
toward child support.
And then the final scenario is really an indictment
of our current child support system,
because in this situation,
really, which would be the most onerous for Mr. Davis,
he will be making the statutory
maximum amount of child support payment
that will be permissible for his circumstances.
That will be paying 55% of his net earnings
toward child support and his child support debt.
And even under these conditions, the debt would still grow.
He would pay $639 per month for child support.
That will be his current order,
plus $177 a month toward arrears.
But he would only be having $523 a month left over
for his living expenses.
So he would be working a full-time, low-wage job
and making a maximum statutory amount
of child support payments by more than $5,000.
And he would still...
His child support amount arrearage
would increase by $5,000 in five years.
So he would never pay off his arrears;
instead, they will grow more onerous over time.
And so he would forever
be under this debt anchor of child support,
even if he were doing everything that the law expected of him,
which I think really underscores the concerns
in the civil justice system with how child support
and child support debt accrues for low-income families
who are trying to make ends meet,
but also fulfill their obligations to their families.
I wanna emphasize that Mr. Franklin is not alone.
Of the 5.5 million noncustodial fathers
or parents who owe past due support,
it's estimated that about a quarter of them
are what are known as unable non-payers
rather than deadbeats,
meaning that they're not payers, but also financially,
they just are unable to pay their support.
I also want to share with you before I wrap up,
some of the words or voices of the fathers I interviewed
and their perspectives
of how the child support system works.
Many of them have very negative experiences in court,
and are troubled by the fact
that they are being summoned to court
about child support debt
when they are trying their hardest to get money together
to pay for their children's needs.
Again, these names are pseudonyms,
Quentin Bryant: "I don't need them to tell me
"to take care of my kids.
"I don't need them to take my money,
"because they think I'm not going take care of my kids over.
"They try to make you feel like
they're trying to make you regret you having your kids."
So pretty strong words.
The idea that the court experience
may even make a father regretful that he is a father,
because that experience is so demoralizing.
Ogechi Rhymes: "It's a stereotype.
"It's just like a stereotype if I'm a Black person.
"If I'm Black, I'm a deadbeat.
"I'm a deadbeat or a drug dealer or whatever.
Like, well, 'He's not doing nothing,' stuff like that."
So again, a concern that once they get into court,
that they're not humanized,
that they're thought of as just another person
in court who owes support,
and that that experience as a Black man
is reflective of stereotypical thinking.
Nicholas Rebholz: "The outcome was more like,
"'Okay, this is another guy, another male.
"'Let's see what, you know, what's going on with him,
"'and let's just keep it moving.
"We've got 30 more cases left.'
That's how I felt."
So this dad is talking about the experience he has in court,
where there are a large number of cases on the court calendar.
The hearings are relatively short,
often 5 to 10 minutes in length, and a feeling
that he's just being processed through the court system
without a real focus on his unique circumstances.
John Quarles: "I just hate going to court.
"I really just hate, do.
Then I asked him, "Why do you hate going to court?"
"Because it's all stereotypical.
"It's just like another Black dude in court,
"and it's just like I'm here for you,
a warrant for child support or something like that."
So again, someone feeling like people don't recognize him
as someone who is committed to his children,
and that he's just one more person,
one more Black guy who doesn't care about their children
and needs to be subject to enforcement proceedings
in order to compel him to take care of his children.
Charles Caywood: "Let a parent be a parent, man.
"Some people need to get, I mean,
"then people need to wipe the slates clean,
"wipe the slates clean, kill all that interest
and try to allow us to pay them, man."
So someone here who was operating
under crushing child support debt
and understood that interest was playing a large role
in the accumulation of his debt.
Again, another statement.
"I'm here today because I provide,
"my kids don't want for anything.
"Everything I buy, my daughter thinks
"I am supposed to be sending it home with her.
"I'm buying more and more things because she doesn't live here.
"I hate to be downgraded as a father.
"I'm a damn good father, I take care of my daughter.
"I also take care of a 10-year-old old full-time.
"You want me to send $100 a week?
"What does that leave at home for bills
and my other daughter?"
So there's a real economic challenge
for low-income families,
because there isn't often enough money
to stretch across multiple households.
There's also the phenomenon of fathers who pay child support
feeling like they can't then have enough left over
to spend money on their children when they spend time with them.
And so some fathers opt to instead
make what's called in-kind payments,
payments that provide clothing or shoes
or other needs of the child on a one-to-one basis,
rather than paying through the formal child support.
And that can lead to them being treated
as if they are not supporting their children.
Otis Berry: "They're not really concerned about the child
"as they say they are.
"And then it's, to me, it's like,
"okay, you're taking money from me.
"I work, and it's going toward the kid.
"Okay, that's fine.
"And the mother's being provided and helped, that's fine.
"You know, it's like, whatever little money I get,
"it's like everybody's like the government,
"the child support people,
"they're like, and nobody's like, helping Otis.
"You know, it's like everybody want from me,
"everybody's grabbing from me,
but nobody's considering that it's affecting me, you know."
There's a lot of negative feeling,
but also a feeling of feeling demoralized
for many of the fathers we talked to,
because their own needs often aren't met as well,
and they feel often between a rock and a hard place,
because they can't afford their own apartment
and their own transportation
and supporting their children as well.
And then they go to court and they are treated
as if they don't care about their children.
So I do wanna just wrap up by saying
that I have a deep amount of gratitude
for the people who made my study possible,
particularly individuals who participated in the study,
who were interviewed or allowed us to hear from them
about their experiences in the child support system,
including the fathers and the mothers and the court staff
and the officials in the study sites
where my team gathered data.
Also, I want to acknowledge all the administrative library
and research staff of my law school
and the Institute for Research on Poverty
and the Russell Sage Foundation,
who also have supported this project.
This final slide is a list of the grantors
who have helped to finance
the research part of this project as well.
And finally, I wanna say thank you very much
for PBS Wisconsin for inviting me
to participate in this presentation.
It has been a delight to share my research with you.
And also for individuals who might be interested
in learning more about the broader concerns
around civil access to justice,
I would encourage you to access the online resources
that have been generated
by the American Academy for Arts and Sciences,
which will give you a broader sense of the scope
of the issues I've addressed.
Thank you again.