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This report emphasizes the institutional change required of local partners in Parents' Fair Share sites, especially the need to work with agencies whose missions differed, and whose operations, resources, and constraints were unfamiliar. For PFS staff from job training, counseling, and other human services occupations, learning about the CSE system was particularly demanding. The IV-D program is made up of a complex set of activities derived from federal, state, and local laws; these activities are often described in a language unique to the CSE system; to people in the "helping professions," the law enforcement orientation of the program is alien. Readers of this report who are not familiar with the jargon or history of the child support program may encounter similar challenges. Thus, this appendix is intended to supplement Chapter 6 by providing additional background information on CSE policy and practice.
The Child Support Enforcement Amendments of 1984 were enacted by Congress to improve the performance of the IV-D program and increase standardization in the treatment of child support cases. The amendments required states to develop guidelines for use by judges and administrators in establishing the amount of child support owed by noncustodial parents. (1) Although the guidelines were advisory not binding this was a move to limit the discretion of judges and other officials who decided child support awards. (2) Prior to 1984, most state statutes enumerated some basic standards to be considered in determining the amount of child support awards, such as the financial resources and needs of the custodial and noncustodial parents, the financial resources and needs of the child, the standard of living the child would have enjoyed if a marriage had not been dissolved (in the case of divorce), the physical and emotional condition of the child and his or her educational needs, and "general equities." Nevertheless, determining child support awards on a case-by-case basis at the discretion of the judge or hearing officer was the standard practice prior to the adoption of state guidelines.
The states' child support guidelines were made binding under the Family Support Act of 1988, another Congressional initiative that made several major changes in the IV-D program. That law required states' child support guidelines to be uniformly applied by judges and other decisionmakers unless they make a written finding on the record that the guideline amount would be unjust or unfair in a particular case. States were also required to specify criteria for these deviations from their guidelines.
As a result of the 1984 amendments, states adopted one of three models for child support guidelines. All three give great weight to the income of noncustodial parents in determining child support awards, but they have varying effects on low-income parents. The most popular basis for child support guidelines, the "income shares" model (adopted by 32 states and Guam, including six of the nine states in the PFS pilot phase), adds both parents' incomes together, allocates a proportion of total parental income to the child (using as a standard the proportion of parental income that would be shared with children if the household were intact), and then divides the support obligation between the two parents according to their income contributions, crediting the custodial parent with her or his obligation. This formula usually varies according to the number of children. For example, in Ohio, the obligation is 20 percent of total parental income for one child and 31 percent for two children if the parents' gross income is $1,000 per month. When this model is employed, the noncustodial parent's income is the only source used to calculate the obligation if the custodial parent receives AFDC and has no other income.
The second most popular child support guidelines model (adopted by 15 states plus the District of Columbia and Puerto Rico, including the other three PFS pilot phase states) is based on a percentage of the obligor's (noncustodial parent's) income, and also varies according to the number of children. For example, the obligation is 25 percent for one child and 28 percent for two children in Massachusetts when the obligor's gross income is between $871 and $2,167 per month. In AFDC cases where the custodial parent has no other income, this approach to setting child support awards differs little from the income shares model.
The Melson formula for child support (also called the Delaware or Melson-Delaware model), adopted by only three states (none of them a PFS pilot phase state), is the most complex of the three, but accounts for the subsistence needs of parents a key issue for low-income families where the others do not do this systematically. (3) Step by step, this formula allocates available income for the parents to first meet their own poverty-level needs; then it allocates additional parental income to meet the children's poverty-level needs, prorating the contributions according to each parent's ability to pay; finally, it requires any additional income to be shared with the children, using as a standard the proportion that intact households spend on their children.
While uniform application of child support guidelines may reduce inequities that arise from the traditional case-by-case approach, there is still room for considerable variation in how different states' guidelines based on the same model work out, and in how much discretion state guidelines allow judges or other decisionmakers in certain types of cases. For example, some states have established income thresholds below which judges and other decisionmakers are allowed more leeway in deciding the amount of child support than is the case under the guidelines; these thresholds usually produce what are referred to as "minimum orders." Other common variations in the basic models are the percentage of income parents are required to pay and the rate at which this obligation increases when income goes up, definitions of countable net or gross income, and the methods for treating medical support responsibilities, multiple families, shared custody, and residence in states with widely varying living costs. In addition, states and localities make different assumptions about noncustodial parents' ability to pay when they say that they are unemployed at the time a child support award is being set and when their income is unknown for example, because they fail to appear at a hearing at which child support is to be set.
1. Minimum Child Support Orders. State child support guidelines usually address the setting of minimum orders even when noncustodial parents have no income or very low income on the theory that society should reinforce the principle and habit of noncustodial-parent contributions to the support of children, regardless of these parents' current circumstances. It is also presumed, especially for young parents, that the earning capacity of noncustodial parents will likely rise over time and that even full-time students and very unskilled persons can work minimum wage jobs for a few hours a week. Thus, child support guidelines contain varying provisions for establishing minimum orders.
Some guidelines fix the dollar amount of such orders for example, at not less than $5 per week in Michigan and $50 per month in Ohio. For AFDC cases, some guidelines, such as those in Massachusetts and Ohio, base minimum orders on the amount that can be passed through to custodial parents who receive AFDC. Still other guidelines state principles for establishing minimum orders but leave the determination up to judges and decisionmakers. For example, the New Jersey guidelines call for the court to "determine the maximum amount of support that can be reasonably ordered without denying the obligor the means of self-support at a minimum subsistence level." The New Jersey guidelines further state: "At minimum, a specific dollar amount between $5 and $10 per week [per case] shall be ordered to establish the principle of the parent's monetary obligation to support his or her child and to establish a basis for an increased order should the obligor's income increase in the future."
2. Handling Fluctuations in Income Due to Unemployment. State child support guidelines typically address noncustodial parents' unemployment in two ways: (1) by allowing judges or other decisionmakers to impute income on the basis of earning capacity (as opposed to actual earnings) when parents are "voluntarily" unemployed, leaving to their discretion the determination of when a jobless parent could work, and (2) by setting standards for the amount of change in parents' circumstances that requires or allows child support orders to be modified. In Florida, for example, a 10 percent or $25 deviation between an existing child support award and the amount that the state's guidelines would yield, if applied, constitutes a substantial enough change to enable either custodial or noncustodial parents to obtain a modified order if they request it. In Minnesota, deviations of 20 percent or $50 require the IV-D program to initiate a modification.
The Family Support Act of 1988 mandated that, beginning October 1990, states have a system in place to review and adjust child support orders to make them consistent with the state's guidelines upon the request of either parent or the IV-D agency. In addition, beginning no later than October 1993, states were required to review IV-D cases at least every three years and adjust awards to keep them consistent with states' guidelines. These review and modification requirements were enacted primarily to help custodial parents get their child support awards updated from time to time to keep pace with increases in the earning capacity of noncustodial parents. Theoretically, they also move child support practice toward responding to decreases in noncustodial parents' ability to pay support. But the requirements present procedural and practical problems when noncustodial parents' circumstances change frequently. Pre-review and post-review notification of both parents is required for modification under the recent federal rules, requiring 30 days' notice at each step. (4) (The job situations and income levels of poor fathers can change more than once in this interval.) Further, modification may not even be required when inconsistencies between an existing child support award and the guideline amount are below a stated level.
Between the three-year mandated reviews initiated by the IV-D agency, noncustodial parents seeking reductions in their child support obligations as a result of unemployment usually are required to initiate the process by filing a petition with the court or other agency having jurisdiction over their orders. Even in states or localities that have user-friendly pro se procedures for this (enabling petitioners to represent themselves before the court), the petitioning process can be little known or intimidating. Furthermore, petitioners are usually required to pay a filing fee; legal representation other than private attorneys is usually not available; (5) and federal IV-D funds may not be used to finance noncustodial parents' legal representation in these (or any other) matters.
In practice, noncustodial parents' inability to pay child support as a result of unemployment is usually discovered in the enforcement process when they have stopped making child support payments in accordance with existing orders and are summoned to hearings to "show cause" why they should not be found in contempt of a court order. (In states that set child support orders in an administrative procedure, rather than judicially, there are parallel enforcement hearings.) Across the country, a number of different approaches are used in these situations, but rarely is the deliberate (and cumbersome) review and modification procedure employed. In some jurisdictions, unemployed parents are ordered to seek work, and their cases are continued, with hearings set for a future date. Enforcement might be "suspended" in these cases, meaning that the fathers would not be subject to arrest or to some financial recovery procedures, although their child support debts (arrearages) might continue to accrue. In other jurisdictions, nonpayers who are considered voluntarily unemployed might be given a jail sentence or be required, in lieu of jail, to make a "purge payment" (to clear the record of contempt by demonstrating compliance with the court).
3. The "Extras" on Top of Ongoing Obligations. In some states, the child-support-related financial obligations of noncustodial parents are not limited to the regular (weekly, biweekly, or monthly) payments determined by state guideline formulas. In addition to the periodic maintenance amounts ordered, many fathers of children receiving welfare are deemed responsible under state and local laws governing public assistance for the costs of birth-related medical services (sometimes called "confinement costs") and welfare payments made to the mothers before paternity and support obligations are established. Some states also charge fees for case-processing, court time, attorney services, and blood tests for paternity establishment, as well as interest on unpaid child support debts. As a result, noncustodial parents of children born out of wedlock to women who receive welfare and taxpayer-funded medical assistance can accumulate child-support-related debts of thousands of dollars before their legal paternity is established and an order for ongoing support is in place. Unlike ongoing child support, these extra obligations are not related to noncustodial parents' ability to pay.
State and local practices vary for fixing the amount of extra obligations, negotiating for settlement of such debts, calculating installment payments, and accounting for what is paid and owed. A 1986 federal law prohibits retroactive modification of child support orders, (6) for example, to reduce noncustodial parents' obligations after arrearages mount. However, the "state debt" that results from assigning the responsibility for pre-establishment public assistance costs to noncustodial parents is sometimes reduced to a judgment and may subsequently be settled by the parties, subject to the review of judges and other decisionmakers. Practices in this area of child support enforcement also vary. Often, the quid pro quo for such settlements is noncustodial parents' cooperation with the establishment process. Prosecutors and public attorneys are less likely to recommend a settlement of state debt arrearages in a case in which the noncustodial parent failed to appear for his hearing to establish paternity and support.
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As discussed in Chapter 6, federal child support policy has consistently and increasingly pushed state and local IV-D agencies to work a larger percentage of their cases, and not to neglect the less "profitable" or more difficult ones (that is, interstate cases, AFDC cases, cases in which paternity has not been established, cases with very young noncustodial parents, and cases with self-employed noncustodial parents). States have B financial incentives to commit resources to IV-D programs. Not only does the federal government pay the largest share of the costs of IV-D services at any level the states choose to spend, but states receive incentive payments as well. They are awarded a share of their AFDC and non-AFDC collections on the basis of the ratio of their IV-D collections of each type to their total IV-D administrative costs. The higher the collections-to-costs ratio, the larger the percentage of collections states are allowed to keep. However, the range is narrow (from 6 to 10 percent) and even inefficient state IV-D programs receive at least a 6 percent incentive payment. The dollar amount of incentive payments for non-AFDC cases is capped at 115 percent of the dollar value of incentive payments for AFDC cases. This incentive payment structure is intended to reward CSE effort and efficiency without encouraging states to limit their efforts to non-AFDC cases. (7)
Federal regulations also encourage states to speed up CSE case-processing. The first step toward "expeditious" case-processing was a requirement, promulgated by the U.S. Department of Health and Human Services (HHS) in response to the Child Support Enforcement Amendments of 1984, that states file and dispose of child support establishment and enforcement cases (including paternity establishment cases) within set time frames: 90 percent of cases within 3 months, 98 percent within 6 months, and 100 percent within 12 months. (8)
A second set of standards for CSE program operations, intended to push the system further toward expeditious case-processing, was promulgated by HHS in response to the Family Support Act of 1988. Under these standards, CSE agencies are required to do the following in 75 percent of cases:
• Open a IV-D case within 20 days of referral from the AFDC program by establishing a record and soliciting necessary information, and begin attempts to locate the alleged noncustodial parent if his whereabouts are not already known.
• Access all appropriate sources of location information, including the Federal Parent Locator Service (which taps into the records of six federal government agencies, such as the Internal Revenue Service, the Social Security Administration, and the military), within 75 days of determining that it is necessary to locate the alleged father.
• File for paternity establishment (or complete service of process necessary to begin establishment proceedings or document unsuccessful attempts to serve process) within 90 days of locating an alleged father.
• Either establish the paternity or exclude the alleged father within one year of successful service of process or the child's reaching six months of age.
• Establish an order for support (or complete service of process to begin establishment proceedings or document unsuccessful attempts to serve process) within 90 days of locating an absent parent or of establishing paternity.
• Take appropriate enforcement action (except wage withholding or federal and state income tax intercepts) within 30 days of identifying a delinquency or other noncompliance with a support order or locating an absent parent. When service of process is required, 60 days are allowed (or unsuccessful attempts to serve process must be documented). Tax intercept cases must be submitted to the necessary authorities annually.
• Initiate wage withholding whenever the amount of arrears equals one month's support obligation in older IV-D cases not subject to immediate wage withholding. (9)
• Report amounts of owed child support for the month to the state's AFDC program within 10 days after the end of the month and distribute the AFDC family's share of support within 15 days of receiving the initial payment or within 15 days after the end of the month if less than $50 is received.
In different ways, both sets of program operation standards recognize that some IV-D cases are more difficult to work than others. But they hold out timeliness goals for states' whole IV-D caseloads so that the difficult cases will not be entirely neglected. In effect, the regulations for case-processing set twin goals: Child support staff must, on average, both work all cases and work the entire caseload expeditiously.
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The regulations implementing the Child Support Enforcement Amendments of 1984 also encouraged states to create nonjudicial or quasi-judicial forums to hear evidence and decide child support cases a recognition of the speed advantage of administrative approaches to child support enforcement. About one-third of the states have administrative process statutes that allow the establishment and/or enforcement of child support orders outside the court structure. (In some states with these systems, all IV-D cases are handled outside the court system, while others use them only in certain cases or in selected jurisdictions.) (10) Such systems de-emphasize the adversarial aspect of child support and emphasize uniform application of program rules. Thus, in addition to being less burdened than courts with demanding standards of evidence and procedural requirements, administrative processes and their results tend to be more predictable and controllable important advantages when program operation standards are externally imposed.
But administrative systems, too, may have difficulty with unusual cases, and they do not have the authority to effectively threaten uncooperative participants with severe penalties such as jail. This usually requires the shift to court-based enforcement processes. In addition, court-based child support systems usually have the advantage of guaranteeing a higher level of due process rights and opportunities for the parties to appeal decisions, which requires more time. Although judges may be more effective at compelling cooperation and safeguarding the parties' procedural rights, they may be less willing to conform to externally imposed standards.
In practice, many states operate hybrid judicial-administrative CSE systems, which have evolved to meld the uniformity and speed advantages of the administrative approach to the due process and appeal protections and authoritative presence of judicial involvement. For example, the state of Michigan's CSE system employs a first-level administrative forum to hear and decide enforcement cases; it is located in one of the IV-D agencies called the Friend of the Court and is judicially supervised. The Minnesota legislature recently passed a law requiring the implementation of an administrative process for child support establishment and enforcement in which CSE decisions will generally be made without holding hearings.
To expedite paternity establishment and support establishment (determining the amount of child support owed), many states have also adopted consent procedures that allow noncustodial parents to legally acknowledge that they are the fathers of their children and agree to a child support award without being served with a complaint by a public attorney or prosecutor and without having to appear in court as a defendant. As a first step, these procedures usually require that noncustodial parents be provided with information about their rights and potential responsibilities, and about state guidelines for child support. Then they sign documents that are subsequently filed with the court or made official after a waiting period.
Where consent procedures enable the IV-D agency to expedite paternity and support establishment by avoiding adversarial process through agreements with noncustodial parents, default procedures sometimes accomplish the same purpose expeditiously because noncustodial parents are not involved. Under these procedures, when a complaint has been filed and substantiated and the noncustodial parent is notified of a hearing on the matter but fails to appear, judges or other decisionmakers may go ahead and decide the case, making a finding on the basis of the evidence and recommendations from a public attorney or prosecutor. If the noncustodial parent was properly notified, and a period to contest the judgment has expired, such ex parte (one-sided) establishment proceedings and the resulting judgments usually have the full force of law.
Another approach to speeding up case-processing is focused on how states and localities obtain effective service of process. This is the in-person delivery of legal papers; in child support enforcement, it usually means a summons to appear at a hearing scheduled for noncustodial parents to "show cause" why they are not complying with a child support order, which is issued in response to a complaint or petition filed by the IV-D agency. (The copy of the complaint or petition accompanies the summons.) In order to guarantee that no one is deprived of property without due process of law, state rules governing civil procedure require courts to exercise their jurisdiction over a person who is the subject of such a complaint or petition by ensuring that the person receives proper notice of it. This has traditionally meant that a sheriff or marshall or some other officer of the court must deliver papers in person.
People who are too poor to pay rent and who continually move around, staying for short periods with friends and relatives (like many of the unemployed men who are the noncustodial fathers of children receiving welfare), are difficult to serve. In addition, in jurisdictions where the courts are backed up with criminal cases, the sheriffs and other law enforcement officers charged with serving process may give lower priority to child support cases. To expedite service of process in child support cases, some states have empowered additional process servers by contracting for private service or deputizing CSE caseworkers and other administrative agency staff for this purpose. Others permit service by registered mail in some circumstances, and still others have introduced incentives for respondents to voluntarily comply. (11)
In spite of the federal standards and innovations discussed above, "expeditious" case-processing in the IV-D system is generally limited to segments of CSE caseloads, and states are still reorganizing and automating child support functions and procedures in order to meet the regulatory requirements implementing the 1984 and 1988 reforms. The later standards, which states were to begin meeting in October 1990, were considered by many state IV-D administrators to be burdensome and costly, and HHS acknowledged that they would entail major changes for some states. (12) In issuing the final rules for case-processing standards, HHS pointed out that states with large numbers of cases per caseworker would probably not be able to comply with the new standards without adding staff and commented: The real challenge this rule presents most states is the need to review and in many cases radically change existing bureaucratic procedures. For example, a state which relies on sequential, totally manual, multi-agency transfer and review procedures for tracking payments and issuing checks will have difficulty meeting the 15-day deadline for payments to families even if it adds substantial clerical resources to each stage of the process. Substantial changes in handling distribution of collections, service of process, access to data bases used for location of absent parents, and other cross-agency functions and procedures may be needed in many states.(13)
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1. In the IV-D lexicon, "establishment" may refer to the process of determining how much money noncustodial parents are required to pay for their children's support ("support establishment") or to the process of determining who is the father of a child born out of wedlock ("paternity establishment"). [Back To Text]
2. The discussion of child support guidelines in this section draws heavily on U.S. Department of Health and Human Services, 1991, and Takas, 1992. [Back To Text]
3. As discussed below, the subsistence needs of noncustodial parents are considered in many of the guideline formulas in a limited, case-by-case, discretionary way if their income falls below an income threshold. [Back To Text]
4. 57 Federal Register 61559 (December 28, 1992). [Back To Text]
5. IV-D attorneys are barred from representing noncustodial parents because they are usually representing the state in child support matters (but, depending on the state, may represent custodial parents when their interests are compatible with the state's); public defenders or court-appointed attorneys are limited to criminal and quasi-criminal cases, which include contempt in only some states; and legal services attorneys usually do not represent noncustodial parents because of potential conflicts with their representation of custodial parent clients. [Back To Text]
6. This was the Bradley Amendment to the Child Support Enforcement section (IV-D) of the Social Security Act. Prior to this change, 18 states permitted retroactive modifications, which in most cases had the effect of reducing the amount of child support owed. See Solomon, 1989, pp. 53-54. [Back To Text]
7. The complex formula for determining how CSE costs and collections are shared between the federal government and states generally favors states. However, because this split depends in part on each state's rate of federal financial participation in AFDC costs which is higher for states with low per capita income poor states have to be more efficient than wealthy states at collecting child support for AFDC cases in order to break even. It should also be noted that states are not required to reinvest AFDC child support collections or CSE incentive payments in their IV-D programs. Thus, at the same time that a state's CSE program is generating revenue for the state treasury, the program may be "underfunded" from a IV-D manager's perspective. This explains how CSE programs can be described both as "overwhelmed," with staff assigned to work thousands of cases, and as "moneymakers." [Back To Text]
8. U.S. Department of Health and Human Services, Office of Child Support Enforcement, 45 CFR 303.101 (October 15, 1989, edition). [Back To Text]
9. The Family Support Act of 1988 began moving the CSE system toward universal income withholding procedures, paralleling the income tax system. The first step, effective November 1, 1990, required states to institute immediate income withholding in all IV-D cases with new or modified orders. Old and unmodified orders continued to be subject to previous requirements for withholding when an arrearage occurred equal to one month's support. Effective January 1, 1994, all IV-D cases were subject to immediate income withholding. Under this procedure, a notice is sent to an obligor's employer regarding the amount to be withheld from his paycheck, and the employer is required to send the money to the IV-D agency on the employer's regular payroll schedule. [Back To Text]
10. U.S. Commission on Interstate Child Support, 1992. [Back To Text]
11. For a review of alternatives, see Harris, 1987.[Back To Text]
12. 54 Federal Register 32284 (August 4, 1989). [Back To Text]
13. 54 Federal Register 32307 (August 4, 1989). [Back To Text]
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