Child Support Enforcement affects everyone, even if you do not have children. How? Because over five billion tax-dollars are taken from American citizens, every year, to pay for your local and state child support enforcement programs under 42 U.S. Code § 655 – Payments to States. See also Child Support Funding: 2008-2017
Our Child Support Enforcement Program , Title IV-D of the Social Security Act was originally enacted to relieve the taxpayers’ burden of the welfare system, to recoup the taxpayers money spent on children, that should have been spent by fathers.
The federal government required states to set up a plan to establish and collect child support. The federal government offered to pay states sixty six (66) percent of their costs to establish and enforce child support payment orders. States also receive incentive payments by meeting five performance measures.
Child support in the United States
In the United States, child support is the ongoing obligation for a periodic payment made directly or indirectly by an “obligor” (or paying parent or payer) to an “obligee” (or receiving party or recipient) for the financial care and support of children of a relationship or a (possibly terminated) marriage. The laws governing this kind of obligation vary dramatically state-by-state and tribe-by-tribe among Native Americans. Each individual state and federally recognized tribe is responsible for developing its own guidelines for determining child support.
Typically the obligor is a non-custodial parent. Typically the obligee is a custodial parent, caregiver or guardian, or a government agency, and does not have to spend the money on the child. In the U.S., there is no gender requirement for child support; for example, a father may pay a mother or a mother may pay a father. In addition, where there is joint custody, in which the child has two custodial parents and no non-custodial parents, a custodial parent may be required to pay the other custodial parent.
Historically, the right of a child to the support of his or her parents was regulated solely by the separate states, territories, and Indian tribes. The federal government of the United States became involved in providing welfare assistance to impoverished children in 1935 through the Aid to Families with Dependent Children program. In turn, the federal government realized that many children were entering that program because noncustodial parents were often avoiding their fair share of the costs of raising their children, and began to develop the foundation of today’s overarching federal framework for child support enforcement.
Today, the federal child support enforcement program is the responsibility of the Office of Child Support Enforcement, an office of Administration for Children and Families in the Department of Health and Human Services. Federal regulations promulgated pursuant to Title IV-D of the Social Security Act require uniform application of child support guidelines throughout a state, but each state can determine its own method of calculating support. At a minimum, 45 C.F.R.302.56 requires each state to establish and publish a Guideline that is presumptively (but rebuttably) correct, and review the guideline, at a minimum, every four years.[1] Most states have therefore adopted their own “Child Support Guidelines Worksheet” which local courts and state Child Support Enforcement Offices use for determining the “standard calculation” of child support in that state. Courts may choose to deviate from this standard calculation in any particular case. The US has reciprocal agreements with a number of countries regarding recovery of child support and is a party to the Hague Maintenance Convention 2007.
Click State IV-D Agency Contact Information to access your state’s child support agencies, child support laws and guidelines, forms, record searches, and much more
The FY 2007 Annual Report To Congress shows how much goes into the Child Support Enforcement System.
Child Support is only in the best interest for children if the “noncustodial” parent’s have the ability to pay the “custodial” parent the court ordered child support and be able to maintain minimum subsistence for the children in the noncustodial parent’s own home.
Ability to pay became the focus of Child Support Agencies across the country in 2011 when the Supreme Court of the United States issued their Opinion in Turner v. Rogers, 131 S.Ct. 2507, 2519 [11] (2011). The SCOTUS reversed a contempt finding, that resulted in imprisonment, because the judge issued the finding of contempt and ordered the incarceration without a making specific finding of ability to pay. Failing to make the finding violated Turner’s right to due process to an opportunity to be heard and was unconstitutional.
The following safeguards or forms of due process should be available to everyone in, every contempt hearing. See Turner v. Rogers, 131 S.Ct. 2507, 2519 [11] (2011).
(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
(2) the use of a form (or the equivalent) to elicit relevant financial information;
(3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and
(4) an express finding by the court that the defendant has the ability to pay.
Stephen Breyer , who wrote the opinion went on to reiterate those things that must be present so that Due Process does not require the appointment of counsel, stating:
We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute relevant information and court findings).
Thus there must be notice to the obligor-parent that his/her ability to pay is an issue. Then the must be forms designed to elicit this information and presumably a consideration by the court of the obligor-parent’s ability to pay. After this, courts are then required to make a specific finding in child support contempt cases whether or not the obligor-parent has or had the ability to pay in order to satisfy Due Process because this is the critical issue.
However, Breyer specifically declined to address whether Due Process would require the appointment of counsel when the state is collecting overdue support payments due the state because then the state would be represented by counsel or in complex cases. Breyer seemed to recognize that the “average defendant” probably lacks the skill to adequately defend themselves. Breyer quoted from Johnson v. Zerbst, 304 U.S. 458, 462–463, 58S.Ct. 1019, 82 L.Ed. 1461 (1938), stating with emphasis:
([T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel (emphasis added)). And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant can fairly be represented only by a trained advocate.
2017 Child Support Rules Changes Requiring Due Process Protections
- A Guide To States
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45 CFR §§ 302.56(a), 302.56(c)(1), and 303.4(b).
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New 2017 Federal Rule Final Rule Summary: This final rule strengthens and updates the child support program by amending existing rules, some of which are 35 years old, to:
- set accurate child support obligations based on the noncustodial parents’ ability to pay;
- reduce the accumulation of unpaid and uncollectible child support arrearages;
- • move nonpaying cases to paying status;
- • increase consistent, on-time payments to families;
- • increase the number of noncustodial parents supporting their children;
- • improve child support collection rates; and
- • incorporate technological advances and evidence-based standards that support good customer service and cost-effective management practices.
- Guidelines: Discusses the Final Rule: Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs updates guidelines for setting child support orders at 45 CFR 302.56 and the establishment of child support orders at 45 CFR 303.4. This fact sheet discusses specific revisions made to §§ 302.56(a), 302.56(c)(1), and 303.4(b).
- Civil Contempt – Ensuring Noncustodial Parents Have the Ability to Pay: Focuses on revisions to ensure child support case outcomes are just and comply with due process.
- Turner v. Rogers
- Modification for Incarcerated Parents: Highlights updates for setting realistic child support obligations for incarcerated parents
- Case Closure: Outlines circumstances that permit states to close a case
The introductory paragraph for
background factors in the case
Payments to the States reimburse expenses costs to the state IV-D Agencies
Code of Federal Regulations
45 CFR 302.56 – Guidelines for setting child support awards.
Government Publishing Services 45 CFR 302.56 Scroll down until you see 45 Public Welfare and look at all of the subsections
45 CFR 302.56 – Guidelines for setting child support awards direct link to Cornell University Law School
§ 302.56 Guidelines for setting child support awards.
(a) Effective October 13, 1989, as a condition of approval of its State plan, the State shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State.
(b) The State shall have procedures for making the guidelines available to all persons in the State whose duty it is to set child support award amounts.
(c) The guidelines established under paragraph (a) of this section must at a minimum:
(1) Take into consideration all earnings and income of the noncustodial parent;
(2) Be based on specific descriptive and numeric criteria and result in a computation of the support obligation; and
(3) Address how the parents will provide for the child(ren)’s health care needs through health insurance coverage and/or through cash medical support in accordance with§ 303.31 of this chapter.
(d) The State must include a copy of the guidelines in its State plan.
(e) The State must review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts.
45 CFR 302.56 – Guidelines for setting child support awards
45 CFR 302.56 – Guidelines for setting child support awards.
(a) Effective October 13, 1989, as a condition of approval of its State plan, the State shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State.
(b) The State shall have procedures for making the guidelines available to all persons in the State whose duty it is to set child support award amounts.
(c) The guidelines established under paragraph (a) of this section must at a minimum:
(1) Take into consideration all earnings and income of the noncustodial parent;
(2) Be based on specific descriptive and numeric criteria and result in a computation of the support obligation; and
(3) Address how the parents will provide for the child(ren)’s health care needs through health insurance coverage and/or through cash medical support in accordance with § 303.31 of this chapter.
(d) The State must include a copy of the guidelines in its State plan.
(e) The State must review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts.
(f) Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.
(g) A written finding or specific finding on the record of a judicial or administrative proceeding for the award of child support that the application of the guidelines established under paragraph (a) of this section would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, as determined under criteria established by the State. Such criteria must take into consideration the best interests of the child. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.
(h) As part of the review of a State‘s guidelines required under paragraph (e) of this section, a State must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from, the guidelines. The analysis of the data must be used in the State‘s review of the guidelines to ensure that deviations from the guidelines are limited.
Federal financial participation at the applicable matching rate is not available for:
(a) Activities related to administering title I, IV-A, X, XIV, XVI, XIX or XX of the Act.
(b) Purchased support enforcement services which are not secured in accordance with § 304.22.
(c) Construction and major renovations.
(d) Education and training programs and educational services except direct cost of short term training provided to IV-D agency staff or pursuant to §§ 304.20(b)(2)(viii) and 304.21.
(e) Any expenditures which have been reimbursed by fees collected as required by this chapter.
(f) Any costs of caseworkers as described in § 303.20(e) of this part.
(g) Medical support enforcement activities performed under cooperative agreements in accordance with section 1912(a)(2) of the Act.
(h) Any expenditures made to carry out an agreement under § 303.15 of this chapter.
(i) Any expenditures for jailing of parents in child support enforcement cases.
(j) The costs of counsel for indigent defendants in IV-D actions.
(k) The costs of guardians ad litem in IV-D actions.
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