October 11, 2019 Feature

Child Support Compliance in the USA and Australia: To Persuade or Punish?

By J. Thomas Oldham & Bruce M. Smyth

Introduction

Child support compliance continues to be a thorny policy issue, especially in the aftermath of the global financial crisis when governments are under pressure to minimize government expenditure. In this Article, we examine compliance rates and some of the key enforcement strategies in the United States context and compare these with those in Australia. Despite very different approaches to tackling compliance, neither country appears to be making much headway. We use this cross-national comparison to critically reflect on the issue of compliance and future policy directions more broadly.

The idea for this paper grew out of long-distance conversations between the authors about child support compliance strategies common in our respective places of residence. We could not help but notice that child support agencies in America and Australia seem to have a markedly different focus when talking about improving “child support compliance.” In America, when a state agency talks about “improving compliance” the general focus is upon punitive strategies (discussed below). By contrast, the Australian Child Support Agency has taken a broader and more holistic approach. Moreover, Australia made sweeping reforms to its child support system a decade ago, including strengthening its enforcement regime. Both countries have also been greatly affected by the global financial crisis. These differences and similarities create a neat opportunity for us to take a closer look at compliance initiatives and outcomes and to reflect on whether the Australian experience offers lessons for the United States.

I. The U.S. Context

Family law rules and procedures in the United States are generally based on state law. In the recent past, however, the federal government has attempted to direct state child support policy in a few ways. First, the federal government has required states to enact various child support policies and procedures. It has also provided significant funding for child support activities but has placed substantial restrictions upon how these funds can be spent.

Beginning in the mid-1970s, the federal government became increasingly frustrated with state child support programs. Child support compliance was perceived to be a big problem. Single parents were receiving substantial government benefits.1 Congress concluded that if child support compliance could be significantly improved, this could reduce government outlays to support single-parent families.

Congress created a new parallel child support system, the “IV-D” system, whose primary responsibility initially was to collect child support for single parents who were receiving government benefits.2 Congress established certain mandatory components of this system. Funding was provided, but states could use the funds only for limited purposes, such as paternity establishment and the enforcement of child support orders. (The rules have more recently changed so that these funds can be used to clarify the parents’ parenting plan or to provide employment counseling for obligors.)

In 1984, the U.S. Congress passed legislation requiring each state to promulgate advisory child support guidelines. In addition, income withholding was required for obligors who were not complying with the order.3 Legislation enacted in 1988 generally required that, as of 1994, all new or modified child support orders should be collected via withholding and that guidelines should be the basis for determining the presumptive amount for child support orders.4

During the 1990s, the federal government became even more involved in child support policy. In 1994, the Secretary of the U.S. Department of Health and Human Services testified regarding proposed legislation that “[w]e are proposing the toughest child support system ever to make sure fathers pay their child support.”5 In 1996, legislation was passed that incorporated numerous new policies relating to child support. This law required states to adopt streamlined procedures for paternity establishment. In addition, the law established a national system to track the employment of parents who were not paying support. Also, employers were required to report to another national system all employees newly hired. The law attempted to improve the system for the enforcement of orders where parents lived in different states. States needed to create centralized offices for collection and disbursement of support and to provide procedures pursuant to which an obligor could have his6 driver’s license suspended for nonpayment of child support. States were required to create procedures to obtain liens on the obligor’s property to collect child support arrears. A procedure was established for denial of passports for steadfast noncompliant obligors.7 Texas has recently adopted a policy that bars an obligor from renewing his automobile registration if he has not paid child support for six months.8

U.S. child support compliance strategy has focused primarily on facilitating the process of obtaining a child support order and then creating various sanctions upon obligors for not complying with the order. Initial sanctions relate to things such as suspension of a driver’s license. Some agencies have publicized a list of “most wanted” child support obligors who are not paying their child support obligation.9 In some cases, parents who do not pay their child support obligations are incarcerated.10 It appears that policies in the United States toward incarceration for nonpayment of child support vary. One investigator found that in larger U.S. cities, fifteen percent of African-American fathers had been at some point incarcerated for nonpayment of child support.11 Anecdotal evidence suggests that it is not uncommon for child support obligors who do not timely pay their child support to be jailed.12 For example, a representative of the Arizona Attorney General stated that the Arizona child support office initiates about 150 contempt actions every month.13

The U.S. federal government has allocated significant funds to the states to pay for child support compliance activities, but significant restrictions have been imposed upon how these funds can be used. States are permitted to use federal child support funds for (1) paternity establishment, (2) obtaining a child support order, (3) periodically reviewing and updating a child support order, and (4) enforcement of an order. From the perspective of obligors (mostly fathers), it is important to emphasize what the state cannot do with federal child support funds. As a rule, states do not (1) help the obligor obtain an order establishing their contact rights with the child, (2) resolve an access dispute between the parents, or (3) reduce the child support order if the obligor loses his (or her) job.14

Has the U.S. strategy significantly improved child support compliance? Some studies found improvement in child support compliance when comparing trends from 1994 to 2004.15 Others have found that U.S. child support enforcement activities did increase compliance for certain groups of mothers between 1975 and 2000.16 However, if the effects of the great recession are considered, it does not appear that compliance rates in the United States have changed very much from 1993 to 2015.

Any attempt to analyze the effectiveness of U.S. child support enforcement is complicated by data inconsistencies between data promulgated by the U.S. Census Bureau and by the Federal Office of Child Support Enforcement.17 The discussion below focuses upon information provided by the Census.

Timothy Grall reports U.S. Census Bureau data relating to child support compliance from 1993–2015.18 Of those primary caregivers who are owed support, he reports what percentage reported they received full payment, what percentage reported partial payment, and what percentage reported no payment. For 1995 through 2015, the percentage of custodial parents reporting full payment varied from a high of 46.9% in 2005 to a low of 41.2% in 2009; the figure for 2015 was 43.5%. The percentage of custodial parents reporting partial payments varied from a high of 38.9% in 1993 to a low of 25.8% in 2015. The percentage of parents reporting no payments varied from a high of 30.7% in 2015 to a low of 23.6% in 2003.

So we see that the great recession of the last decade apparently had some impact on child support compliance in the United States. But perhaps the major conclusion one might draw from these numbers is that, at least based on reports by the primary custodian, although the United States appeared to devote substantial resources to child support compliance between 1995 and 2015, child support compliance did not markedly change during that period. One might argue that the U.S. data mask some small improvements in compliance. The population of U.S. obligors has been getting poorer, signaling a reduced capacity to pay. Given this trend, one might expect somewhat lower compliance rates over time. Still, the improvement in compliance has not been substantial. In 1995, 42.3% of custodial parents reported full payment of child support; by 2015, this percentage had increased only to 43.5% (and the number for 2009 was 41.2%, slightly lower than the figure reported in 1995). Similarly, in 1995, 24.3% reported receiving no support; by 2015, this percentage had increased to 30.7%.

One might reach the same conclusion by comparing the aggregate percentage of child support collected in 1993 and 2015. Grall found that, after adjusting for inflation, $36.7 billion in child support was due in 1993 and $24.8 billion was paid, which was just under two-thirds (65.3%) of all child support due. In 2015, $33.7 billion in child support was due and $20.1 billion was paid, which amounted to 59.8% of the overall amount due.19

Moreover, in 1993, 59.8% of all mothers who were primary caretakers had child support awards or agreements. This percentage increased to 64.2% in 2003 and then decreased to 52.7% by 2015.20 In the United States, compliance strategy to date has primarily focused on threatening the obligor with punishment upon noncompliance. The primary mechanism for collection has been garnishment of the obligor’s wages if the obligor has steady employment. The traditional threat of punishment has been that of jail for noncomplying obligors. More recently, states have created other possible punishments, such as the right to suspend driver’s licenses or passports of noncomplying obligors or the strategy of embarrassing noncomplying obligors publicly. One interpretation of the recent U.S. compliance data from the Census Bureau is that the prevailing focus on obligor sanctions to induce compliance has not been a very successful strategy to induce compliance.

Perhaps the U.S. response to the compliance problem has been too grounded in the perception of the “deadbeat dad,” that is, in the idea that noncomplying obligors could pay but choose not to.21 Of course, a hardline (“stick”) approach is also the most direct and expedient way to reduce government expenditure on sole-parent families (if one assumes that the punitive sanctions will generate more child support).

Another explanation might be that it is relatively cheap to rely on punitive measures to enforce child support obligations. Other approaches might require the child support office to attempt to resolve child access issues or other entrenched thorny conflicts between the parents.

When attempting to evaluate U.S. compliance strategy, a few questions arise. First, what is the goal of the U.S. strategy? When the IV-D system was established, its primary focus was to collect the maximum amount of child support and reduce pressure on the public purse. Now, forty years later, should the goals still be the same? For example, in the 1970s, the vast majority of the IV-D child support caseload consisted of welfare recipients. Now a substantial majority of IV-D cases are not welfare recipients.22 Should this change the direction of child support policy?

One might also point out that increased child support enforcement activity presumably decreases informal child support provided by the obligor. So it is possible that the data above have overstated the impact of the U.S. child support compliance strategies on total child support received. In addition, discouraging informal support might discourage parental involvement by the obligor parent.23

In addition, use of criminal sanctions can negatively affect child support compliance in some obvious and some less obvious ways. An obligor in jail cannot work and earn money to be used for child support. In addition, once the obligor is released from jail he might have greater difficulty finding employment.24 Because many obligors accrued child support arrears while in jail, many were quickly put back in jail.25

Other aspects of U.S. compliance strategy might negatively affect the employment prospects of child support obligors. For example, it was mentioned above that the current child support system makes it difficult and expensive for obligors who have been laid off to obtain a reduction in their child support obligations. The result is that many obligors who are laid off accrue substantial arrears. Studies have found that these arrears have a negative impact on the employment prospects of obligors.26 Also, if a child support obligor falls behind in child support payments, he can have his driver’s license suspended. In Texas, one might not be able to register a car. This could impact his ability to be a responsible employee. Sanctions that reduce an obligor’s ability to work and earn money may be self-defeating.

Currently, child support offices generally do not help child support obligors obtain legally enforceable child access rights or represent the obligor if there is a conflict between the primary custodian and the obligor that makes it difficult for obligors to see their children regularly. This presumably impacts the willingness of obligors to pay child support (i.e., there is a “no-see, no-pay” relation).

Grall found that, with respect to those obligors who had no contact with the other parent in 2015, the custodial parent reported that 32.0% of all such obligors paid the full amount due, while 48.7% of those with contact with the other parent paid the full amount due.27 He also found that 21.3% of all obligors who had a child support agreement or order in 2015 did not have legally enforceable access rights to spend time with their child.28

Perhaps not surprisingly, Grall found that certain characteristics of the custodial parent affected whether the full amount of support was received. For instance, custodial parents with a university degree were more likely to receive the full amount than those who had not graduated from high school (56.0% versus 39.0%). In addition, those who had been married (and subsequently divorced) received more support than those who had never been married (51.0% versus 35.9%). Of those who shared joint legal or physical custody with the other parent, 51.2% received the full amount.29

The U.S. system currently has a great deal of difficulty enforcing orders when the obligor does not have a steady job. At least two-thirds of all child support is collected via wage withholding, and this is generally possible only if the obligor works for the same employer for a substantial period. Since an increasing number of younger workers in the United States are seeking temporary jobs in the “gig” economy, this may suggest that it will be increasingly difficult to enforce child support orders in the United States. In addition, the U.S. teen pregnancy rate continues to be much higher than the rate in many other countries.30

The Obama administration proposed a number of significant changes in U.S. child support compliance strategy. First, orders are to be established at the “right size.” This means that orders should generally be based on evidence of actual income rather than routine (notional) imputed income.31 (“[L]ow income, unrealistic support obligations, and lack of payment incentives” have recently been identified as key correlates of non-compliance.”)32 Second, it has been proposed that child support officers also establish parenting time arrangements beginning in 2019. (State receipt of federal funding for Temporary Assistance for Needy Families (“TANF”) funds would be dependent upon providing these services.)33 It is unclear whether the Trump administration will endorse these proposals. Either way, much more may be needed to step out of the apparent U.S. compliance quagmire.

II. The Australian Context

In Australia, the care of children following family breakdown—including child support—is mainly governed by federal (“Commonwealth”) laws. The national Child Support Program involves administrative formulaic assessment34 and the collection (and enforcement) of child support by the Department of Human Services or by private transfer.35

In the vast majority of cases, child support is determined by administrative assessment.36 Collection and transfer, on the other hand, involves a roughly fifty-fifty split between cases in which the government collects and transfers child support (“CS Collect”), and cases in which parents make their own arrangements for the transfer of child support (“Private Collect”) (46% versus 54%).37 In the latter cases, the Department of Human Services issues periodic assessment notices but does not keep records of what payments have been made or any arrears.

Two recent trends in the management of cases are noteworthy, both of which push the Australian Child Support Scheme towards voluntariness. First, amid a burgeoning caseload, the Child Support Program encourages the use of Private Collect where appropriate,38 with around 65–70% of new cases starting out as Private Collect cases.39 Second, among Child Support (“CS”) Collect cases, although employer-withholding of child support from wages and salaries started out as the most common collection method when the Scheme first began, private payments to the Child Support Program are now more common, with half of CS Collect payments made voluntarily.40 Both trends afford greater autonomy to parents, particularly payers. Thus, whereas the original Scheme sought to improve the working relationship between parents by reducing bargaining over money and offer a degree of predictability and certainty about payments, the shift towards private payments and transfers runs the risk of moving the Scheme in the opposite direction. Private transfers, in particular, can put the onus of collection back onto payees (typically mothers).

Between 2006 and 2008, sweeping changes were implemented to the child support system featuring a purportedly “fairer” system for the calculation of child support.41 A strengthened enforcement regime was also introduced.42 This included the use of: (1) departure prohibition orders (where payers in arrears can be stopped from leaving Australia); (2) litigation (involving taking payers to court where other compliance methods have failed; (3) intensive debt collection (involving the identification of chronic noncompliance, whereby obligors in these cases are pressed to negotiate a suitable repayment schedule); (4) income minimization identification (involving an increased number of investigations of payers whose taxable income looks suspiciously low); and (5) tax return lodgement enforcement (involving increasing the number of cases referred to the Australian Taxation Office for tax return lodgement enforcement action).

The above initiatives were in addition to more traditional compliance activities, including: (6) employer withholding of salaries/wages, arrears or both; (7) obligor tracing; (8) the interception of tax refunds; (9) the issue of a notice to a third party who holds money for, or on behalf of, an obligor (e.g., a bank) requiring that party to pay an amount to the Child Support Registrar; and (10) criminal prosecution in the case of illegal behaviour by obligors or employers. Did the various compliance activities in Australia ensure that the assessed amount of child support was paid in full and on time? Recent Australian data suggest not.

Specifically, Bruce Smyth et al. found that prior to the child support reforms (with the latter featuring more vigorous enforcement), 83% of male obligors and 55% of female custodial parents reported that child support was paid in full and on time.43 Similar rates of compliance were found post-reform for these groups (male obligors: 84% one year post-reform; 85% three years post-reform; female custodial parents: 53% one year post-reform; 54% three years post-reform).44 In short, little improvement in compliance occurred following the stronger enforcement regime.45 It is also noteworthy that, according to custodial mothers, around a third of obligors were steadfastly noncompliant between 2008 and 2011.

III. Why So Little Progress?

We argued above that, despite the allocation of substantial resources to the problem, child support compliance in the United States has not changed much over the last twenty years. In addition, there is increasing evidence that the emphasis on obligor punishment in the States is having substantial, unforeseen impacts on obligors and their families.46 In light of these circumstances, we argue that this would be a good time to reevaluate U.S. child support compliance strategies.

What might explain why the U.S. emphasis on obligor punishment has not been successful? In their discussion of how to get organizations to comply with their legal obligations, Ian Ayres and John Braithwaite argue that, “when punishment rather than dialogue is in the foreground of regulatory encounters, it is basic to human psychology that people will find this humiliating and will resent and resist . . . .”47 We wonder whether this insight is applicable to child support compliance as well. Ayres and Braithwaite see the challenge as seeking the proper balance between a policy of persuasion and the policy of punishment. They assert that “to reject punitive regulation is naïve; to be totally committed to it is to lead a charge of the Light Brigade.”48 They argue that “the trick of successful regulation is to establish a synergy between punishment and persuasion.”49

Further, Ayres and Braithwaite note that “a strategy based mostly on punishment will undermine the good will of actors when they are motivated by a sense of responsibility.”50 They also argue that “preserving [a] perception of fairness is important to nurturing voluntary compliance.”51

U.S. policy is focused on punishment today primarily because the U.S. Congress has severely restricted the way U.S. child support offices can spend money apportioned for child support compliance. For child support offices to be more nuanced or to develop more creative compliance strategies, Congress would need to relax its restrictions on how child support compliance funds can be spent.

If the U.S. child support compliance strategy is to be reevaluated, the designers of any revamped policy would need to answer a few basic questions. One such question is whether the goal of the system should be “merely” to generate as much child support as is possible. If so, what would be the best combination of strategies to achieve this result? For example, to what extent can the child support system offer meaningful employment counseling or training or mechanisms for increasing contact between the obligor and his or her child? In addition, can the system be changed in some ways so that it appears fairer to obligors? For example, can simplified procedures for support modification be implemented so the order will truly reflect the obligor’s ability to pay at any given time? Further, are orders in the United States currently the “right size,” and do they take account of different circumstances? Investigators recently calculated how much child support an obligor would have to pay in various scenarios in the United States, United Kingdom, Australia, and New Zealand. In each instance, the U.S. order was substantially higher.52

It might be useful to reevaluate some legal policies applicable to unmarried parents. For example, in many states it is possible to award not only prospective periodic support but substantial retroactive support obligations can also be imposed on unmarried obligors. Retroactive awards create immediate lump-sum arrears in substantial amounts. It might be sensible to reconsider the wisdom of such awards—or to explore whether custodial parents might be willing in some circumstances to waive outstanding debt to enable a fresh start that will stick on the basis of current circumstances.

Another fundamental question that one might ask in connection with any reevaluation of U.S. child support enforcement strategy is whether it would be useful to consider the child support system from a broader perspective as one of a number of government policies that impact the family and relationship support system. If such a perspective is considered useful, one might consider what impacts the current child support system has on families. Are there ways the system could be modified to be less damaging to families and still provide adequate support for children?

Indeed, to us, larger and more fundamental policy questions need to be answered. How should “compliance” be defined (any payment; mostly paid; paid in full; paid in full and on time; etc.)? Is there a relationship between different compliance activities and child and family wellbeing? If so, what is that relationship? What is the appropriate role for government in the enforcement of compliance?

IV. Punishment, Persuasion, or Some Combination?

Policy approaches to child support compliance can be situated somewhere between two philosophical extremes. At one extreme (the so-called “cold cash” approach),53 the sole purpose of child support infrastructure is to transfer money from obligors to custodial parents on behalf of children, with some or all of that money to help clawback welfare expenditure. At the other extreme is a “warm hearts” approach. This approach is grounded in a “systems” framework in which families are viewed as “systems of interconnected and interdependent individuals, none of whom can be understood in isolation from the system.”54 From this framework, the child support system is an integral part of the broader family law, dispute resolution, and family and relationship support systems. The “warm hearts” approach thus seeks to engage in more expansive, therapeutic, and transformative pursuits rather than simply collecting and transferring money (i.e., seeing fathers simply as “walking wallets”). These pursuits include providing clients with targeted educational materials, offering workplace programs to help fathers stay connected to their children,55 referring clients to telephone counseling or family relationship support services to encourage healthy, cooperative, post-separation relationships, and support parents more generally with personal issues. From the “warm hearts” framework, moving money from A to B is important but so too is helping parents take care of themselves, their finances, their children, and their parenting relationship with their former partner.

The Australian policy approach to dealing with child support compliance is especially interesting because, over the past quarter century, the Scheme has vacillated between the two approaches. The Australian Child Support Agency was first located in the Australian Tax Office, where the focus was very much about extracting money from obligors through auto-withholding and disbursing it to custodial parents. But the Agency was soon moved out of taxation and given much greater autonomy as a stand-alone Government Agency. During this time, several of the Agency’s General Managers strongly favoured holistic, strength-based approaches to child and family wellbeing, which were subsequently reflected in the Agency’s delivery of a range of family services, information, and education initiatives. However, more recently, child support has been moved into another department, the Department of Human Services, and a tight fiscal environment appears to have shifted the (compliance) pendulum back towards a focus on the transfer of “cold cash” from obligors to custodial parents. Economic shocks (such as the global financial crisis) clearly have downstream centrifugal effects for many areas of family policy, including child support, and those affected by these policies.

V. Possible Ways Forward in the United States

A. Strategies to Promote Contact between the Obligor and the Child

There is considerable evidence to suggest that contact between an obligor and the child is generally beneficial for the child.56 In addition, some have argued that if the obligor has regular and meaningful contact with the child, the parent will be more inclined to pay the support (“where the heart goes, money goes,” or “I see, I pay”).

1. Fatherhood Programs

For some time now in the United States, there have been efforts to improve the parenting skills of child support obligors.57

2. Helping Obligors Obtain Access Rights to the Child

It was reported above that, for all child support obligors in 2015, 21.3% did not have legally enforceable access rights to the child.58 For participants in their IV-D program, the situation appears to be significantly worse. One study of IV-D participants found that in 2010, only 33% of the all noncustodial parents had a legal visitation agreement and that 35% of all such parents had no contact with their youngest child in the previous year.59

In almost all states, child support and parenting time are treated as separate legal matters. A child support order can be established, and no visitation arrangement is included. This procedure requires the obligor to establish independently a legally enforceable access right.60

Texas has established a different set of rules. For all “suits affecting the parent–child relationship,” the order must include both a child support order and a parenting plan.61 Texas has attempted to streamline the process for creating a parenting plan by promulgating a very detailed “standard visitation order.”62 This order gives the noncustodial parent access rights every other weekend, some holidays, and additional time in the summer. Of course, this will not be workable if the parent works on the weekends. But it seems to work for many parents.

The Obama administration proposed that child support orders should also include a parenting plan. If the Trump administration endorses and implements this proposal, this would represent a very significant change in the US compliance strategy.63 There is much anecdotal evidence that most noncustodial parents simply want to spend time with their children. In addition, the federal Office of Child Support Enforcement (“OCSE”) reported in fall 2018 the results of a demonstration project whereby child support workers obtained a parenting time order for the obligor at the same time that the child support order was established. In the OCSE Child Support Report for September/October 2018, it was reported that the demonstration project found that “sites were able to implement parenting time successfully with minimal costs to the child support order establishment process.” Many problems that child support staff anticipated, such as that it would take much more time, did not materialize.

3. Helping Obligors Resolve Access Problems

Child support obligors frequently complain about difficulties they have with the other parent in working out access and visitation with their child (i.e., noncompliance with parenting orders).64 When they complain to the child support office about these concerns, they are told that child support and visitation are separate matters.

Some states have made an effort to address this problem. For example, in Texas the attorney general has created an “Access and Visitation Hotline” where a noncustodial parent can get information from legal aid attorneys about visitation issues.65

There have been pilot programs for many years to help child support obligors with access and visitation issues.66 These pilot programs seem to show that if access and visitation support would be incorporated into the child support system, more obligors would have more contact with their child and would pay more support.67 But these access and visitation pilot programs have served only a very small number of parents.68 High-conflict cases (especially those involving entrenched, interparental hatred), continue, of course, to present some of the most complex challenges to family law practice and policy.

B. Strategies to Increase the Obligor’s Ability to Pay and Reduce the Probability of a Substantial Arrearage.

1. Provide Employment Counseling

Many obligors are not easily employable. A significant number do not have a high school diploma. Some have been in jail one or more times. Others may not have a stable living situation or reliable transportation. States have attempted to address these problems in a variety of ways.69

2. Establish an Initial “Right-Size” Order

In the past, courts have imposed child support obligations on poor obligors that some have argued were too burdensome. For example, one group of investigators recently found that in about one-fifth of all cases, noncustodial fathers started to accrue child support arrearages almost immediately.70

Several researchers recently compared how much child support would be ordered in different scenarios in the United States, United Kingdom, Australia, and New Zealand. Based on Wisconsin child support practices, the investigators found that, in the United States, the child support award was significantly higher than the award in all other countries in each scenario.71 It is unclear whether this is a function of the lower level of government support for families in the United States, or whether the level of U.S. awards needs to be reevaluated.

Recent federal regulations instruct state courts to consider the obligor’s support needs when imposing child support obligations on a poor obligor.72 In addition, the regulation also imposes more limits on a state court’s ability to impute earning capacity to a noncustodial parent. These federal regulations adopted in 2016 appear to reflect a new policy judgment that is becoming increasingly accepted regarding the amount of child support a poor noncustodial parent should pay. It has become more common in a number of states for courts to enter a $0-order for poor noncustodial parents.73

Studies have found that an obligor is more likely to comply with the order when the amount is reasonable and not excessive.74

3. Have a Simple Procedure for Modifying the Orders when the Obligor’s Circumstances Change

Federal law requires that orders be reviewed and adjusted every few years to respond to changes in the parties’ circumstances. However, if an obligor loses his job or is incarcerated, it could be a substantial period until the order is reviewed. During that time, the obligor could accrue a substantial child support debt, which will be a burden for the obligor for the rest of his life.

States need to create a simple procedure for support modification to address instances when the obligor’s circumstances substantially change. Currently some IV-D systems, but by no means all, automatically modify support when an obligor is incarcerated.

4. Reevaluate Our Incarceration Policies

i. The Policy of Mass Incarceration

Many people have criticized the policies of the United States that lead to mass incarceration. This policy has tremendous effects on families.75 For those parents who owe child support, it cuts them off from their minor children, eliminates their wages while they are incarcerated, and makes it more difficult for the parent to find a job when released from jail.76 Some refer to this approach as one clear example of the “criminalization of poverty.”77

ii. Civil Contempt Policies

Jail should be an enforcement tool that is rarely utilized. Judges should consider, among other things, whether the obligor will lose a job if he is incarcerated.78 In addition, the U.S. Supreme Court has emphasized that the civil contempt remedy should not be utilized if the obligor is unable to pay.79

5. Reevaluate Whether Arrears Can Be Reduced

There are substantial federal limits upon the ability of parents to agree to reduce accrued child support arrears. Once an obligor accrues substantial arrears, it becomes very difficult for many obligors to ever pay them.80 In many states, the arrears also continue to accrue interest while unpaid. Once an obligor accrues a substantial debt, this makes it less likely the obligor will pay support.81

The most desirable strategy would be for the system to be sufficiently responsive to changes in the obligor’s circumstance so there would rarely be substantial arrears. However, once a substantial debt is accrued, states be should be more willing to offer plans to allow the obligor to pay a portion and then have the remainder forgiven.82 We accept that this idea remains controversial.

6. Limit Retroactive Support

In a number of states, once paternity is established, an unmarried father can be ordered to pay a substantial amount of retroactive support.83 The scope of these retroactive awards should be limited so that unreasonable labilities are not created.

C. More Comprehensive Strategies

A few states are experimenting with more intensive support for families whose parents live apart. For example, the Minnesota Co-Parent Court offers numerous services, such as parent education courses, employment assistance, and support for the creation of parenting plans.84

Genesee County in Michigan has also experimented with providing more extensive services to separated parents.85 Parents were given assistance creating a parenting plan, as well as job training and parental education.

Colorado has also initiated a pilot program that provides more intensive support for families whose parents live apart. The intention is to support noncustodial parents who are “willing but unable” to pay child support. Each noncustodial parent is assigned to a case manager who counsels the parent about employment options and mental health and substance abuse issues, as well as the parent’s relationship with his child. All participants in the program did not initially have a full-time job. Within a year, three quarters of the parents being counseled had a full-time job.86

D. Other Strategies to Increase the Obligor’s Motivation To Pay

State governments can withhold amounts from child support payments to recoup welfare expenditures. However, states can, if they choose, waive some or all of these amounts and allow the money to “pass through” to the primary custodian.

One investigator recently found that a majority of U.S. states currently withhold the maximum amount and have elected not to let any additional funds pass through.87 Only a handful of states allow all the support to pass through to the custodial parent. It seems likely that most obligors know to what extent child support payments will actually be received by the primary custodian and that pass-through policies could significantly impact willingness to pay.88

For example, a recent comparative survey found that, in Australia and the United Kingdom, both governments now permit the full amount of child support to be forwarded to the primary custodian of the children, even if the family is receiving government benefits,89 though the Australian Government does claw back some of the payment if parents are on government income support.90 Pilot programs have shown that 100 percent pass-through policies do increase compliance.91 It might be time for states to evaluate whether to expand pass-through policies.

E. Automatically Offer Services to Parents

Parents generally need to request assistance from the child support enforcement office before the office will become involved. Texas has experimented with a procedure whereby all parents with minor children who file for divorce are offered IV-D services. The final report found that this approach increased compliance and reduced arrears.92

VII. Conclusion

So what can the U.S. child support community learn from Australia? Before attempting to answer this, it is important to remind readers that the U.S. and Australian child support systems are fundamentally different in several ways, and thus they are not directly comparable. To begin with, the Australian system is a federal (i.e., national) system, whereas the U.S. system is essentially state-based, scaffolded by some national policies and practices. Second, child support service delivery in Australia rests with a national government agency, rather than being governed by an adversarial, court-based (discretionary) system. In the U.S. context, this means that legal pathways dictate child support matters. It also means that two obligors in identical circumstances in different states can end up with markedly different child support liabilities and can experience very different intervention outcomes for noncompliance. Third, the Australian system is far more sensitive to changes in each parent’s circumstances (e.g., income, parenting time) through links with the income tax and government income support systems, and the system makes it much easier for parents to notify government about changes in circumstances than the U.S. system does. Moreover, should a parent be incarcerated for any reason, that parent (or his or her representative) is encouraged to notify the government so that liabilities can be suspended or reassessed downward accordingly.93 Finally, the Australian policy definition of “compliance” includes timeliness—i.e., paid in full and on time. The timeliness of payments can be especially important for single-parent families because low-income families “with unstable earnings are unable to borrow funds or otherwise to smooth income fluctuations over time.”94 Thus, recent research points to the importance of including the timeliness of child support payments in contemporary definitions of “compliance.” (Such an approach, however, would mean that Grall’s estimates of noncompliance from the U.S. Census are likely to underestimate noncompliance.)

But the most striking difference between the two systems is that at no point in the past thirty years has Australia shown any appetite for aggressive punitive measures such as imprisonment for noncompliance or driver’s license suspension. No Australian has ever been jailed or had their license suspended for not paying child support under the Australian Child Support Scheme. Indeed Australia has steered away from any sanctions that prevent those with a child support liability from earning income. And although the use of such measures (including the loss of a professional license) frequently gets raised during Australian parliamentary inquiries into child support, none has ever been acted on.

To sum up: if there are any lessons from the Australian experience in recent years, they are that (1) sweeping changes to the child support formula have done little to improve perceptions of fairness or compliance; (2) long-standing large debts still remain difficult to recover (child support formulas appear to be easier to change than human behavior); (3) early interventions with noncompliant payers have been found to be useful (i.e., where specialist frontline staff make contact early with such payers to explore their circumstances); (4) focusing on nonresident parents’ connection to their children and providing support in the workplace after parental separation show promise in reducing noncompliance; (5) simplifying ways to update changes in either parent’s circumstances is a useful prevention/early intervention approach, as is providing a range of repayment options for those in arrears; and (6) departure prohibition orders (i.e., orders barring the obligor from leaving Australia)95 have been found to be a useful tool for recovering outstanding child support owed. Moreover, there is little evidence that encouragement by government of private transfers between separated parents, apart from auto-withholding, has improved compliance.

The apparent lack of headway that both the United States and Australia are making on improving child support compliance remains a thorny problem for policymakers, professionals, custodial parents, and their children. It seems to us that child support policies that help separated parents (be they payers or payees) stay engaged with (1) their children, (2) family and friends, (3) paid work, and (4) society are more likely to enable parents to make a positive contribution to their children’s lives than are policies that isolate and punish.

The United States applies more punitive compliance strategies; yet, its compliance rate is no better than Australia’s. Could the United States reduce its reliance on punitive strategies without significantly impacting its compliance rate?

Endnotes

1. Between 1962 and 1980, expenditures for poor families (in the form of Aid to Families with Dependent Children, or “AFDC”) increased in constant dollars from $3.7 billion to $14 billion. Jocelyn Elise Crowley, The Politics of Child Support in America 101 (2003).

2. See 42 U.S.C. §§ 651–69. See generally Crowley, supra note 1, at 29, 119–26.

3. See Harry D. Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, Fam. L.Q. 1, 8 (1990). See also, Crowley, supra note 1, at 155.

4. See Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 Geo. J. Pov. L. & Pol’y 127, 138 n. 55 (2011); Ann Laquer Estin, Federalism and Child Support, 5 Va. J. Soc. Pol’y & L. 541 (1998).

5. See Daniel L. Hatcher, Don’t Forget Dad: Addressing Women’s Poverty by Rethinking Forced and Outdated Child Support Policies, 20 Am. U. J. Gender Soc. Pol’y & Law 775, 793 (2012).

6. For ease we use gendered language, but we believe that liable mothers represent an important yet understudied group. See, e.g., Susan D. Stewart, Nonresident Mothers’ and Fathers’ Social Contact with Children, 61 J. Marr. & Fam., 894 (1999) ( in the U.S. context); Maria Vnuk, Merged or Omitted? What We Know (or Don’t) About Separated Mothers Who Pay or Should Pay Child Support, 16 J. Fam. Stud. 62 (2010) (in Australia).

7. For a summary of the 1996 law, see generally Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 Fam. L.Q. 579 (1996). For a chart showing all significant federal child support initiatives, see Crowley, supra note 1, at 37–38.

8. Madlin Mekelburg, Texas to Tie Car Registration to Child Support, Ft. Worth Star Telegram (June 14, 2016).

9. See, e.g., Ten Most Wanted in Massachusetts for Failure to Pay Child Support, Mass.gov, http://www.mass.gov/Ador/docs/cse/wanted/2007/TMW2007.pdf; Non-Custodial Parent Delinquency List, Louisiana Dep’t of Soc. Servs., Support Enforcement Servs. Program, http://www.dss.louisiana.gov/Documents/OFS/AB.pdf; Non-Custodial Parent Delinquency List, Louisiana Dep’t of Soc. Servs., Support Enforcement Servs. Program, http://www.dss.state.va.us/family/wanted.html; Most Wanted Delinquent Parents, L.A. County Child Support Servs. Dep’t, http://childsupport.co.la.ca.us/dlparents.htm; 25 Most Wanted, Wanted by the State of New Mexico for Neglecting their Children for Not Paying Child Support, N.M. Hum. Servs. Dep’t, Child Support Enforcement Div., http://www.state.nm.us/hsd/wanted.html; Wanted for Failure to Pay Child Support, Ariz. Dep’t of Econ. Sec., Div. of Child Support Enforcement, http://www.de.state.az.us/dcse/wanted.asp; see Susan Edelman, Deadbeat-Dad Dragnet: Feds Nab Well-Off Men Whose Kids Live in Poverty, N.Y. Post Aug. 4, 2002, at 12 (listing New York’s top ten deadbeat fathers); Heidi Evans, City’s Deadbeat Dads’ Hall of Shame: Millions Owed by the Men Who Shirk Child Support, N.Y. Daily News, Feb. 3, 2002, at 6; see also Paul Rioux, Cops Book 14 Parents as Suspected Deadbeats: 130 Sought by Authorities, Times-Picayune (New Orleans), Oct. 10, 2002, at B1; Jason Straziuso, Miss. Seeks “10 Most Wanted” Deadbeat Dads, Com. Appeal (Sept. 4, 2002), at B7 (reporting that state of Mississippi will post photographs and information about ten most-wanted deadbeat parents in post offices, in county buildings, and online).

10. Carmen Solomon-Fears, et al., Child Support Enforcement: Incarceration As the Last Resort Penalty for Nonpayment of Support, Cong. Res. Serv. (Mar. 6, 2012); Steven Cook, Child Support Enforcement: Use of Contempt and Criminal Nonsupport Charges in Wisconsin, Inst. for Res. on Poverty, Univ. of Wis.–Madison (Sept. 2015). In two recent cases in Texas, for example, each father was sentenced to 180 days of jail for not paying child support: In re O’Keeffe, 2018 WL 2296495 (Tex. App. May 21, 2018); In re Harris, 2018 WL 1734294 (Tex. App. Apr. 11, 2018).

In 1998, President Clinton signed the “Deadbeat Parents Punishment Act,” which created a federal criminal sanction for not paying child support. 18 U.S.C. § 228.

11. Noah D. Zatz et al., Get to Work or Go to Jail: Workplace Rights Under Threat, UCLA Inst. For Res. on Labor & Emp’t, UCLA Labor Ctr. & A New Way of Life Reentry Project (2016), http://wwww.labor.ucla.edu/publication/get-to-work-or-go-to-jail/.

12. See Frances Robles & Shalia Dewan, Skip Child Support. Go to Jail. Lose Job. Repeat., N.Y. Times (Apr. 19, 2015), https://mobile.nytimes.com/2015/04/20/us/skip-child-support-evaders-vehicle-registration-renewal. Joshua Sharpe, “Deadbeat” Parents Arrested in DeKalb Sheriff’s Holiday Sweep, Atlanta J.-Const., (Dec. 22, 2016, 12:03pm), http://www.ajc.com/news/local/deadbeat-parents-arrested-dekalb-sheriff-holiday-sweet/8311xVHLYS4QLuDyVDZceK/.

13. Comments made by Debra Tanner at the February 2018 NCSEA Policy Forum.

14. Elizabeth G. Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of the Debtor’s Prison, 18 Corn. J. Law & Pub. Pol’y 95, 112–114 (2008) (regarding the difficulties encountered in reducing a child support award).

15. See Chien-Chung Huang, Trends in Child Support from 1994 to 2004: Does Child Support Enforcement Work?, 9 J. Pol’y Practice 36 (2010).

16. Elaine Sorenson & Ariel Hill, Single Mothers and Their Child-Support Receipt, 39 J. Hum. Res. 135 (2004).

17. See Jane C. Venohr, Differences in State Child Support Guidelines Amounts: Guidelines Models, Economic Basis and Other Issues, 29 Am. Acad. Mat. L. 377, 381 (2017).

18. Timothy Grall, Custodial Mothers and Fathers and Their Child Support: 2015, Current Population Reports, U.S. Dept. of Commerce, U.S. Census Bureau (Jan. 2018).

19. Id. at 12.

20. Id. at 6.

21. See, e.g., Juliet Eilperin, House Bill Targets Deadbeat Parents, Wash. Post (May 13, 1998), at A10; Cokie Roberts & Steven Roberts, Going After those Deadbeat Dads at the Federal Level, New Orleans Times-Picayune, (Aug. 1, 1997), at B7; Carlos Sadovi, Dragnet Out for Deadbeat Dads, Chi. Sun-Times, (June 14, 2003), at 1.

22. See Crowley, supra note 1, at 42. For example, in 2010 only fourteen percent of the families receiving IV-D services were recipients of Temporary Assistance for Needy Families (“TANF”). See Comm. on Ways & Means, U.S. House of Representatives, Child Support Enforcement Introduction and Overview, (Aug. 9, 2012), http://greenbook.waysandmeans.house.gov/2012-green-book/child-support-enforcment-cover-page/introducaiton-and-overview, [http://perma.cc/JYV5-JRLM].

23. See Solangel Maldonado, Deadbeat or Deadbroke: Redefining Child Support for Poor Fathers, 39 U.C. Davis L. Rev. 991, 1005 (2006).

24. Harry Holzer et al., Declining Employment Among Young Black Less-educated Men: The Role of Incarceration and Child Support, 24 J. Pol’y Analysis & Mgmt. 329 (2005).

25. Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families,15 J. Gender, Race & Just. 617 (2012).

26. Maria Cancian et al., Discouraging Disadvantaged Fathers’ Employment: An Unintended Consequence of Policies Designed to Support Families, 32 J. Pol’y Analysis & Mgmt. 758 (2013); Daniel P. Miller & Ronald B. Mincy, Falling Further Behind? Child Support Arrears and Fathers’ Labor Force Participation, Soc. Sci. Rev. 604 (Dec. 2012).

27. Grall, supra note 18, at 7, tbl.3.

28. Id. at 11.

29. Id. at 7, tbl.3.

30. Chien-Chung Huang & Ke-Qing Han, Child Support Enforcement in the United States: Has Policy made a Difference?, 34 Child. & Youth Serv. Rev. 622 (2012).

31. For a good discussion of the vicissitudes of routine imputed income, see Margaret F. Brinig & Marsha Garrison, Getting Blood from Stones: Results and Policy Implications of an Empirical Investigation of Child Support Practice in St. Joseph County, Indiana Paternity Actions, Notre Dame Law School Legal Studies Research Paper No. 1850 (2018).

32. Id. at 7.

33. Office of Child Support Enforcement, Child Support and Fatherhood Initiative in the Administration’s FY 2014 Budget, (Apr. 13, 2013), http://www.acf.hhs.gov/programs/css/ resource/child-support-and-fatherhood-initiative-in-the-administrations-fy-2014 [http://perma.cc/A99E-GCQM] [hereinafter “Administration’s FY 2014 Budget”].

34. Child support is determined in a small proportion of cases by parental agreement, Change of Assessment, or court order.

35. The original Scheme was heavily influenced by the work and thinking of Columbia University Professor Irwin Garfinkel in the United States.

36. A court order, Change of Assessment, or a limited or binding agreement can also determine liability.

37. Commonwealth of Australia., Dep’t Social Services & Dep’t Human Services: Joint Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs: Inquiry into the Child Support Program, Canberra: DSS & DHS (2014) at 25.

38. The rationale for this is that “[t]his is consistent with the government’s aim to ensure child support arrangements are non-intrusive to personal privacy and demonstrates that parents are increasingly able to negotiate and manage their own circumstances.” Commonwealth of Australia, Child Support Agency Facts & Figures 2008–09, 14 (2009).

39. As noted by the Department of Social Services, “[i]f a payee is having difficulty collecting their child support privately, they can request DHS take over collection on their behalf. An application for collection can be made orally or in writing (using the relevant form) by a payee. A payer cannot make an application for collection, unless the application is made jointly with the payee.” See Commonwealth of Australia, supra note 37, at 25.

40. See Commonwealth of Australia, Child Support Agency Facts and Figures 2008–09 (2009) at 45.

41. Specifically, on July 1, 2008, Australia moved from a “percent-of-obligor-income” model to an “income-shares” approach whereby child support is based on the relative incomes of each parent instead of a flat percentage of the non-custodial parent’s income. The new formula also sought: more equal treatment of both parents (for example, by allowing them the same self-support amount in the formula); encouragement of shared parenting (by reducing the level at which a reduction in payments first occurs from 30% to 14% of nights; and changing the level at which larger shared-time parenting adjustments occur from 30% to 35% of nights); and to improve the way that the costs of caring for children in second families are taken into account.

42. See Commonwealth of Australia, 2010–2012 Compliance Program (2012).

43. Bruce Smyth et al., Can Child Support Compliance Be Improved by the Introduction of a “Fairer” Child Support Formula and More Rigorous Enforcement? The Recent Australian Experience, J. Fam. Stud., 20, 204–220, (2014). Differential reporting by mothers and fathers is common in the area of post-separation parenting, with obligors typically reporting larger payments than custodial parents, more timely payments, and higher levels of child support compliance: see, e.g., Sanford L. Braver, & Diane O’Connell. Divorce Dads: Shattering the Myths: the Surprising Truth Abouth Fathers, Children, and Divorce (1998); Rae Kaspiew et al., Austl. Insti. of Family Studies, Evaluation of the 2006 Family Law Reform (2009); D. W. Wright, & S. J. Price, Court-Ordered Child Support Payment: The Effect of the Former-Spouse Relationship on Compliance, 48 J. Marr. & Fam. 869–87 (1986). These gender differences occur even for mothers and fathers from the same former relationship, with fathers more likely than their former partners to report that child support is paid in full and on time. See Smyth et al., supra note 43.

44. These data are based on a balanced national random panel of 1,668 separated parents, interviewed at three points in time: 2008, 2010, and 2011.

45. Although compliance among Private Collect cases was found to be generally higher than among Agency Collect cases, twelve of the Australian child support reforms did not appear to lead to any significant increases in compliance among Private Collect or Agency Collect cases. It is also worth noting that prior to the reforms, around one in ten separated mothers and fathers (12% and 9%, respectively) reported having “other” (less formal) arrangements in place instead of regular child support payments that they saw as fair.

46. See, e.g., Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 Geo. J. Pov. L. & Pol’y 127 (2011).

47. Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate, 25 (1992).

48. Id.

49. Id.

50. Id. at 24.

51. Id. at 26.

52. See Christine Skinner et al., Child Maintenance and Social Security Interactions: The Poverty Reduction Effects in Model Lone Parent Families Across Four Countries, 46 J. Soc. Pol. 495 (2017).

53. We borrow the phrases “cold cash” and “warm hearts” from: Marcia Millman, Warm Hearts & Cold Cash: The Intimate Dynamics of Families and Money (1990).

54. Randi Kreger, The Essential Family Guide to Borderline Personality Disorder: New Tools and Techniques to Stop Walking on Eggshells 63 (2008).

55. Some years ago the Australian Child Support Agency developed a demonstration project: the “Staying Connected” program. The program sought to provide support to men who were at risk of becoming distant to their children through separation. It was predicated on the view that child support issues are often grounded in more complex personal and systemic issues. Specifically, the program, delivered in three interconnected modules in the workplace, focused on fatherhood and was forward-looking. It sought to help separated fathers to (1) take care of themselves following separation, (2) improve communication with their former partner, and (3) strengthen the relationship with their children. A small pre-/post-participation evaluation of the program found that separated fathers reported numerous benefits from the program. Staying Connected was discontinued several years ago. It won the 2004 Prime Ministers Award for Excellence in Public Service Management.

56. Valerie King & Juliana M. Sobolewski, Nonresident Fathers’ Contributions to Adolescent Wellbeing, 68 J. Marr. & Fam. 537 (2006); Paul R. Amato & Joan G. Gilbreth, Nonresident Fathers and Children’s Well-Being: A Meta-Analysis, 61 J. Marr. & Fam. 557 (1999); Kari Adamsons & Sara K. Johnson, An Updated and Expanded Meta-Analysis of Nonresidents Fathering and Child Well-Being, 27 J. Fam. Psych. 589 (2013).

57. Jennifer M. Threlfall & Patricia L. Kohl, Addressing Child Support in Fatherhood Programs: Perspective of Fathers and Service Providers, 64 Fam. Relations 291 (2015); Karen Martinson & Demetra Smith Nightingale, Urban Insti., Ten Key Findings from Responsible Fatherhood Initiatives (2008).

58. See Grall, supra note 18.

59. Kye Lippold & Elaine Sorenson, Urban Inst. Characteristics of Families Served by the Child Support (IV-D) Program: 2010 Census Survey Results.

60. Jessica Pearson, Establishing Parenting Time in Child Support Cases: New Opportunities, 53 Fam. Ct. Rev. 246 (2015).

61. Tex. Fam. Code §§ 153.601, 153.603.

62. Tex. Fam. Code § 153.312.

63. Stacy Brustin & Lisa Vollendorf Martin, Paved with Good Intentions: Unintended Consequences of Federal Proposals to Integrate Child Support and Parenting Time, 48 Ind. L. Rev. 803 (2015).

64. See Pearson, supra note 60.

65. See Texas Access, http://www.txaccess.org/ (last visited March 10, 2019). The Hotline is open Monday through Friday from 1:00 pm until 5:00 pm. Calls are answered in English and Spanish.

66. Jessica Pearson et al., A New Look at an Old Issue: An Evaluation of the State Access and Visitation Grant Programs, 43 Fam. Ct. Rev. 372 (2005).

67. James McHale et al., Coparenting Interventions for Fragile Families: What Do We Know and Where Do We Do We Need to Go Next?, 51 Fam. Process 284 (2012).

68. Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167, 230 (2015).

69. For a general discussion of such programs, see generally, Vicki Turetsky, U.S. Dep’t Health & Human Servs., Office of Child Support Enforcement, Work-Oriented Programs for Noncustodial Parents (May 27, 2014), http://www.acf.hhs.gov/css/resources/work-oriented-programs-for-noncustodial-parents; Daniel Schroeder & Nicholas Doughty, Lyndon B. Johnson Sch. Public Affairs, Texas Non-Custodial Parent Choices: Program Impact Analysis (2009), http://raymarshallcenter.org/files/2005/07/NCP_Choices_Final_Sep​_03_2009.pdf. See also, e.g., https://www.record-courier.com/news/20180613/passages​-helps​-fathers-falling-behind-on-child-support.

70. Y. Kim et al., Patterns of Child Support Debt Accumulation, 51 Child. & Youth Serv. Rev. 87 (2015).

71. Skinner et al., supra note 52.

72. See generally U.S. Dep’t Health & Human Serv.s, Admin. for Children & Families, https://www.acf.hhs.gov (last visited Mar. 10, 2019).

73. Elaine Sorenson, U.S. Dep’t Health & Human Serv.s, Office of Child Support Enforcement, Exploring Trends in the Percent of Orders for Zero Dollars (2018).

74. Steven Eldred, Orange Cty. Cal. Dep’t of Child Support Serv.s, How Do Child Support Order Amounts Affect Payments and Compliance? (Oct. 2011), http://www.ywcss.com/sites/default/files/pdf-resource/how_do_child_support_orders_affect_payments_and_compliance.pdf.

75. Annie E. Casey Foundation, A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities (2016), https://www.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf.

76. Harry J. Holzer et al., Declining Employment Among Young Black Less-Educated Men: The Role of Incarceration and Child Support, 24 J. Pol’y Analysis & Mgmt. 329 (2005).

77. Job Opportunities Task Force (JOTF), The Criminalization of Poverty: How to Break the Cycle Through Policy Reform in Maryland (2018), https://jotf.org/report/the-criminalization-of-poverty-how-to-break-the-cycle-through-policy-reform-in-maryland/.

78. Jonathan Walters, Is Jailing Deadbeat Dads Effective?, Governing, July 16, 2013, http://www.governing.com/topics/health-human-services/col-jailing-deadbeat-dads-effective-child-support-payments.html.

79. Turner v. Rogers, 131 S. Ct. 2507 (2011).

80. Daniel P. Miller & Ronald B. Mincey, Falling Further Behind? Child Support Arrears and Fathers’ Labor Force Participation, 86 Soc. Sci. Rev. 604 (2012).

81. Maria Cancian et al., Discouraging Disadvantaged Fathers’ Employment: An Unintended Consequence of Policies Designed to Support Families, 32 J. Pol’y Analysis & Mgmt. 758 (2013).

82. Jennifer Pearson et al., Debt Compromise Programs, Center for Pol’y Res. (2012); C. Heinrich et al., Reducing Child Debt and Its Consequences: Can Forgiveness Benefit All?, 30 J. Pol’y Analysis & Mgmt. 755 (2011).

83. For example, in In re B.R., 327 S.W.3d 208 (Tex. App. 2010) the court awarded $67,944 in retroactive support.

84. Mary S. Marczack et al., Co-Parent Court: A Problem-Solving Court Model for Supporting Unmarried Parents, 53 Fam. Ct. Rev. 267 (2015).

85. See Pearson, supra note 60.

86. Jennifer Brown, Colorado Emerges as National Model by Helping Rather Than Punishing Parents Who Miss Child Care Payments, Denver Post, Jan. 8, 2018.

87. Steven Golightly, Los Angeles County Child Support Services Department, PowerPoint slides (on file with authors).

88. Paul Legler, Policy Studies, Inc., & Vicki Turetski, Ctr. for Law & Pub. Policy, Policy Brief: More Child Support Dollars to Kids: Using New State Flexibility in Child Support Pass-Through and Distribution Rules to Benefit Government and Families (2006). See also Kye Lippold et al., Urban Insti., Evaluation of the $150 Child Support Pass-Through and Disregard Policy in the District of Columbia, (2010), http://www.urban.org/sites/default /files/alfresco/publication-pdfs/412779-Evaluation-of-the-Child-Support-Pass-Through-and-Disregard-Policy-in-the-District-of-Columbia.PDF.

89. See Skinner et al., supra note 52.

90. In Australia, all child support paid by the paying parent is passed through to the payee but only amounts below a set threshold are “disregarded” for calculating the amount of Family Tax Benefit A (“FTB A”) paid as governed by the “Maintenance Income Test.” By contrast, in the United Kingdom, all the child support paid by the paying parent is passed through to the payee and all amounts are disregarded. In this sense, a payee receiving, say, $300 a week in child support in the United Kingdom would be $300 better off if she or he were receiving government benefits. But in Australia, the net increase would be less than $300 because FTB A would be reduced by 50 cents for every dollar of child support received over the Maintenance Income Test threshold.

91. Vicki Turetsky, What If All the Money Came Home?, 43 Fam. Ct. Rev. 402 (2005).

92. Daniel G. Schroeder & Ashweeta Patnaik, Texas Integrated Child Support System: Final Evaluation Report (2016), http://raymarshallcenter.org/files/2016/10/ICSS_Local-Rule_Final_Sep2016.pdf.

93. See Child Support Assessment If You Go to Prison, Austl. Gov’t, Dep’t of Hum. Serv. (last visited July 28, 2019), https://www.humanservices.gov.au/individuals/enablers/child​-support-assessment-if-you-go-prison/40201.

94. Yoonsook Ha et al., The Regularity of Child Support and Its Contribution to the Regularity of Income, 85 Soc. Serv. Rev. 401, 402 (2011).

95. Departure prohibition orders in Australia typically affect holiday arrangements rather than work opportunities.

Entity:
Topic:

By J. Thomas Oldham & Bruce M. Smyth

J. Thomas Oldham is the John Freeman Professor of Law at the University of Houston. Professor Oldham would like to thank co-author Dr. Bruce Smyth and the Australian National University for their hospitality and support during his Fulbright visit in November and December 2015. Both authors are indebted to Dan Meyer, Jane Venohr, and Maria Vnuk for comments on an early draft of this Article. Any errors or omissions, of course, are those of the authors. Apologies to John Braithwaite for our adaptation of an earlier title of his: To Punish or Persuade. Bruce M. Smyth is Associate Professor of Family Studies at the Centre for Social Research & Methods, Australian National University, Canberra, Australia.