University Place

Access to Justice in Family Court

– Welcome, everyone, to Wednesday Nite @ the Lab. I’m Tom Zinnen, I work at the UW-Madison Biotechnology Center. I also work for the Division of Extension Wisconsin 4-H. And on behalf of those folks and our other co-organizers, PBS Wisconsin, the Wisconsin Alumni Association, and the UW-Madison Science Alliance, thanks again for coming to Wednesday Nite @ the Lab. We do this every Wednesday night, 50 times a year. Tonight, it’s my pleasure to introduce to you Tonya Brito. She’s a professor in the law school here at UW-Madison, and she is also with the Institute for Research on Poverty. She studied at Barnard College in New York City, and then went to law school, Harvard Law School in Cambridge, Massachusetts. She specializes in family law and policy. And tonight, she’s going to speak to us about access to justice in family court.

Would you please join me in welcoming Tonya Brito to Wednesday Nite @ the Lab?

– Thank you, Tom, for that introduction. It’s a delight to be here tonight to share with you the topic that I’ll be discussing, access to justice in family court. Here’s an outline of the topics I’ll be going over today. I’m gonna begin talking about a renewed focus on civil justice problems. It’s a nationwide focus on civil justice. We’ve seen a lot of news coverage about, for example, the possibility of people being evicted as a result of the pandemic. The focus on civil justice problems is much broader than that. And a lot of groups, including the federal government, has drawn its attention. Then I’m going to move into a short overview of the research context for the project I’m going to be talking about, specifically child support enforcement. Here, I’ll share with you legislative reforms, primarily from the 1980s and 1990s, focusing on some of the most prominent measures implemented and the goals of those measures, which focus largely on improving child support collections for families who were entitled to receive child support from a non-resident parent.

Then I’m going to discuss one of the unintended consequences of those reforms, which is the fact that the system does not work particularly effectively for many low-income and no income families. In fact, it can lead to significant monetary problems for them. The talk today will be drawing from research findings from a project that I’ve been working on. I’ll give you a sense for what the project focuses on and also the research methods used for the project. Part of my talk today will then be shifting to one particular research paper that’s been published from the study, entitled “The Child Support Debt Bubble,” which talks about and demonstrates how poor families can incur significant amounts of child support debt, often referred to as arrearages, because of the operation of the system. I’ll wrap up sharing with you the words of some of the fathers that I interviewed as part of the study and share their perspectives on justice and equality in child support proceedings. Now, I mentioned that civil justice in this United States has been receiving renewed attention. Recent studies have shown that civil justice problems in the United States are widespread and common. Although not everyone brings their problems to the legal system for resolution, they experience many problems, whether they be in employment areas, with respect to their housing, whether it’s mortgage issues or landlord-tenant issues, family law issues, veterans have problems. And in addition, we know that there are also many problems between individual neighbors.

One finding from recent studies shows that two-thirds of American adults face at least one civil justice problem in any given year. And that can often result in the loss of their homes, loss of jobs, different kinds of benefits they might receive like Social Security or SSI, or even custody of their children. So the stakes are quite high. One of the concerns has been however, that low-income Americans receive inadequate assistance in this area. They only get legal assistance in about 14% of the problems that they reported in the surveys that they participated in. This raises some concerns about the impact of them not receiving assistance in areas where they’re facing, what we often refer to as justiciable problems. The outcomes for them can be devastating. One project that I’ve worked on that I want to share with you is called “Making Justice Accessible: Designing Legal Services for the 21st Century. ” This is a project taken up by the American Academy of Arts and Sciences. It’s a multi-year project and it’s ongoing.

What they did was they brought together scholars, practitioners, and policymakers with representatives from a variety of areas that have interest in and experience in the civil justice system to address these and identify the problems and the challenges that are affecting moderate and low-income individuals. This project has resulted in several products that are available for anyone who’s interested in learning more about the area. One is a publication in winter of 2019 on “Access to Justice,” producing 24 essays that are very well done, that address access to justice issues, and talk about the different kinds of parties and interests that have a stake in civil justice, and to make them accessible to the public to understand. I’ve included the website link there. If anyone wants to access that, it is not behind a paywall. In addition, the final report was released just last year, and the report provides an overview of what the crisis looks like in legal services, really with a focus on the common areas of civil justice problems: family, healthcare, housing, and veterans affairs, and suggests some effective initiatives that various jurisdictions might implement to address these problems. Finally, one of the challenges in the area of civil justice is that we don’t have very good data available for people who are studying this area to begin to address it and determine what kinds of policies might be effective. One part of the project that the American Academy for Arts and Sciences took up was to identify where do we need to collect more data. On the civil justice side, unlike on the criminal justice side, there isn’t routine data collection taking place in our courts and in our government offices on those areas that I discussed. So this part of the study identifies ways to collaborate more to make data accessible, identify what kind of data will be most useful to know, and how can we get access to it.

It also proposes a, what we would call a sample memo of understanding that researchers can engage in with institutions that hold data, like the courts, to ensure that the data is handled properly. I wanted to share this with you to let you know how broad the scope is of issues of access to justice. We hear so much more about problems in the criminal justice system, and rightly so that we hear about those issues. But the problems on the civil justice side have not gotten the attention that they deserve. I’m gonna switch gears now and talk to you about child support. As I mentioned, my study looks at child support, and the project that I’ll be discussing today is a paper from those reports. And in order to provide a context that you can understand, I’m gonna share with you some earlier legislative reforms and discuss in what ways this enforcement system has not been working effectively for low-income families. I’ll turn now to the research context, which as I mentioned is child support enforcement. Here, I’ll be talking about the legislative reforms that were implemented at the federal level in the 1980s and 1990s. The goal here was to dramatically strengthen child support enforcement.

There were significant issues with orders being put in place, but then not followed up on. And so individuals who were entitled to receive support were not getting the support they were owed. One of the most significant reforms that took place was the implementation of what’s known as wage garnishment. With the wage garnishment, the child support amount that is due comes directly out of the paying parent’s paycheck, and that results in them not being in a position to avoid paying support, because they don’t have control over the payment of support at that point. So many parents in the time period leading up to this would evade child support. They would receive their paychecks and then not pay the parent that was entitled to receive support. And in most cases, it was the mother who had primary custody of the child. And so wage garnishment was a method that was very effective. For families who have regular earnings and secure jobs, the implementation of wage garnishment has made child support payments much more predictable and systematic. Another innovation is what’s called new hire reporting requirements.

With this requirement, the employer who hires a new employee has to report that new hire to the government. Then if there’s a child support order in place, the employer is notified about the wage garnishment that needs to be set up through their payroll system. Another important innovation is automated case processing, also mass case processing. What essentially this means is that a shift away from a system where much of child support was handled on an individual basis with individual workers and child support enforcement offices handling cases, to computerized systems that handled it in a more automated way. And it enhanced efficiencies, but also reduced human error to some degree from the process. Finally, another significant change that was implemented in the 1980s was the imposition at the federal level of mandatory child support guidelines. And the states had to adopt these guidelines in order to continue receiving federal funding for their child support offices. The change with mandatory child support guidelines is essentially that when a child support order is set, the amount that is decided upon is reached through a mathematical formula. And the main criteria are the number of children who are subject to the order and the incomes of both parents. To some degree, if there is a significant amount of sharing of child custody, that can be a factor as well.

Prior to this, judges exercised their discretion in setting child support orders. And as a result, there wasn’t a lot of predictability about what the order would be, and there wasn’t a lot of uniformity. So two families who might have very similar profiles in terms of their circumstances monetarily and the number of children being similar, might in the same courthouse with two judges come out with very different child support orders. And so the guidelines have served to make those outcomes more predictable and uniform. That doesn’t mean that judges can’t arrive at a different figure. They have different bases they can rely upon to either increase or decrease, but they have to identify the grounds for that and to justify it. Finally, the 1996 welfare reform law also greatly changed child support enforcement as well. The law is formerly known as the Personal Responsibility and Work Opportunity Reconciliation Act. And one significant imposition in this statute was a requirement that custodial mothers receiving welfare benefits shift from welfare to work. And so law entered time limits into the receipt of cash welfare benefits, and required a certain number of hours of work from women receiving welfare.

The shift here also was a desire for the government to pay less out in welfare benefits and to shift more of those costs onto noncustodial parents, typically fathers, who would then pay more child support. And so again, there were increased measures imposed to make it more feasible to shift those costs to noncustodial parents. There was a lot of press coverage at the time about some of the concerns with those welfare reform measures in the 1990s. This slide shows some of those headlines that emerged with the rapid reduction of the welfare rolls due to the time limits and concerns that some of those legislative reforms were motivated by politics rather than fiscal concerns. There were some concerns at the time that because the economy in the 1990s was generally quite favorable, that these new policies might lead to dire consequences for low-income families when the economy experienced a downturn, and maybe some jobs might not be available for people who were low-skilled. I wanna talk about child support enforcement in poor families, because we now know, over 25 years after the welfare reform legislation in 1996, that indeed child support enforcement in poor families has been quite problematic. There is a consensus now that child support enforcement does not operate very effectively for many disadvantaged families. And those families make up about a quarter of the child support caseload. Poor noncustodial parents owe the majority of the child support debt, and relative to nonpoor families, they owe a disproportionate share of it. I’m gonna show you a series of slides with some of that empirical data showing a phenomenon that is very concerning, one that lower-income families who are entitled to receive support are generally not getting the support that they are entitled to.

And these again are predominantly mothers. So as this pie chart shows, it is a pie chart looking at child support payments received in 2015. Just under 40% of child support recipients received the full amount owed. The vast majority either received no child support or a partial payment. It is not uncommon in cases of low-income families for child support payments to be intermittent and also to fall below the ordered amount, to essentially be a partial payment. This next slide looks at the amount of debt owed by reported annual earnings. So when people don’t pay their child support on time, they end up accumulating debt, also referred to as arrears. And so this pie chart shows among the child support debtors, what is their annual earnings? So we see that for people earning over $20,000, they hold approximately 34% of the national child support debt. For individuals earning no income, so these are people who are showing that they do not have a job, they are unemployed, they owe roughly 21% of the national child support debt. For individuals who earn under $10,000, they earn almost a third of the child support debt.

So we see that the vast amount of child support debt is owed by the very poorest child support payers. This chart is a distribution that shows child support payers, also referred to by the legal term obligors, and their arrears or debts. This is a study done by the Urban Institute. And they looked at nine of the most populous states and examined their debt against their income. And we can see that, for individuals who are earning over $40,000 a year, they only owe about 5% of the child support debt. So families where the paying parent is at that income level, we aren’t seeing problems with non-payment of child support. However, we are seeing very significant problems with debt accumulation for families who are low-income. If you look at the other end of the bar chart, you see that people who have no reported income owe the most debt in terms of their arrears, they owe roughly 40% of the debt. And again, here, people earning $0 to $10,000 owe roughly 30% of the child support debt. And so we do see a relationship between how much someone earns and the likelihood that they will accumulate child support debt.

This next chart looks at the characteristics of non-resident fathers, child support characteristics of non-resident fathers. So again, we’re addressing individuals, parents who do not live with their children and owe child support. And this is examining the amount of child support payments they have to make relative to the income they earn. So again, looking at families where the earnings are larger, they labeled as not poor, which again is roughly three-quarters of families. The amount of the child support payment relative to their income is 13% or less, which is a manageable amount for most people to pay. But for lower income families, the families who are poor, you can see that they are paying a much larger percent of their income on child support. In some cases, paying 50% or more of their income on child support. This slide gives you a sense for the disproportionate amount of income that poor families are paying in child support, which if you’re poor and you’re paying obviously a larger percent of your salary on your child support, it makes it hard to have anything left over to get by on, and also explains why we have such low child support payments being paid to poor recipients of child support. So why do child support orders exceed the financial means of the parents who are responsible for paying child support? There are several reasons for this. One is default orders.

Again, keep in mind that these are low-income individuals. They generally do not have attorneys representing them in these child support cases. And so when they receive a summons to come to court about a child support case and they don’t appear, it is very common for a default order to be entered. The default order is often entered based not on their actual income, but on an income that is what we call imputed, meaning that it is a presumed amount that is believed that they should be paying. The imputed amount of income is typically a minimum wage job, working full-time. They may themselves be unemployed, but the order is set at an amount assuming that they have an income. So the initial orders often entered don’t bear a relationship to their actual ability to pay support. Another contributing factor, and these sort of pile on top of each other, is that even when a child support order is initially entered, sometimes retroactive support is imposed, so that they already start out with debt even before they started paying. And that retroactive support order often reflects what are called birth costs, so whatever the cost is for hospital costs for the birth of the child is shifted over to the non-custodial parent at the outset. And that can be thousands of dollars in debt.

Another factor is because these are low-income payers, they often have a weak attachment to the job labor force, and sometimes often a low education level. Maybe they don’t have a high school degree, or they have a high school degree or a GED. Often, they have other kinds of medical problems, and they are often in what we would refer to as precarious employment situations, which means that they may be working seasonal jobs, cash jobs, temp jobs. So their wages are inconsistent and they can fluctuate. In the child support system, when there is a change in one’s earnings, the payer can return to court and petition for the child support amount to be modified to reflect their actual earnings. But many low-income families lacking access to a lawyer and lacking the expertise to operate within the court system, which is very formal, don’t take advantage of this opportunity or are unsuccessful when they bring a petition to the court asking for their child support to be modified. So they end up with a child support order that doesn’t reflect the fact that maybe they have lost their job or they’re earning less. Another factor is that individuals who are incarcerated often are required to continue paying support despite the fact that they are in jail and unable to work at a level that they had been previously, so debt will accumulate while they’re in prison. Another factor is that some of the individuals who are low-income may have more than one child support order resulting from the fact that they have had multiple children with multiple mothers. And so if they have several orders, those orders added up can be an even more significant economic burden for them.

Finally, most states charge interest on child support payments, and the amounts of interest can be quite significant, and can lead to the child support order increasing quite rapidly, because the interest rates often don’t reflect market rates. They’re just whatever the state decides to impose. And in the past, it can be anywhere from 4% to 18%. What are some of the enforcement tools that states use to collect support? There are many that are available, but there are two in particular that are used with low-income families. Income withholding, as I discussed before, also called wage garnishment, not as effective for low-income families because of their precarious work situations. Also garnishing state or federal benefits. Unemployment benefits or Social Security payments can also be garnished. And that can sometimes take place with low-income families if they receive those payments. They also suspend or revoke licenses. For low-income families, the license that they’re most likely to have revoked is the driver’s license.

For them, having a driver’s license revoked can interfere with their ability to obtain or maintain a job. So there is a counterproductive aspect to suspending the driver’s license for someone who has fallen behind on their child support payments. Also, the state will seize tax returns or place liens on property. For low-income families, this particular tool is not as effective, because often they don’t have property that one can place a lien on, and their tax returns often are not significantly large. Also denying or revoking passports. Also contempt proceedings for non-payment. These are civil proceedings, not criminal proceedings, though they can result in incarceration. With a contempt proceeding, the goal is to coerce compliance, to pressure someone who owes support to pay support. And the idea with a contempt proceeding for nonpayment is that the person who owes, again, the defendant, often referred to as the obligor as the legal term, would be held in contempt for failure to support, but only in a situation where their failure to support is deemed to be a willful failure to pay support, not a situation where they’re simply too poor to pay support. And so the violation here is a situation where someone can pay, they have the ability to pay, but they are willfully choosing not to pay support.

And so they are placed in jail to coerce them to pay. And the idea is they have the money, if you put them in jail, they will pay the money because it’s undesirable to be placed in jail. And so it’s not meant to be punishment, as we see on the criminal side. Here, the common phraseology used to justify civil contempt proceedings is that the contemnor or the delinquent child support payer holds the keys to the jail. As long as they pay, they can get out of jail. The issue of low-income parents not paying child support has been receiving a fair amount of media attention. I mentioned earlier that the general consensus that the system isn’t really working very well for low-income families. And so one question is, are these deadbeat parents or are they just dead broke parents? And so the media taking a look at this, many of them have been critical of the way child support operates with low-income families, because jailing parents is both costly and not particularly effective in these instances, because the parents are operating in a very precarious job market, and don’t have as many opportunities available to them, given some of the barriers they face obtaining secure jobs that have a potential for advancement. And so there has been increased focus on potential reforms in this area to address the problem of child support, not only unfairly potentially incarcerating parents who owe support but are just very poor, but also pushing them deeper into poverty, because they accrue so much debt while they’re not paying support. The initial order doesn’t disappear; they just keep increasing their arrears.

Now, I mentioned I was going to be talking a little bit about one of the papers I produced from my study. I wanna give you a brief overview of the project so that you understand where the data emerges from. In this project, working with a team of researchers, we empirically examined the civil justice experiences of pro se, which means unrepresented noncustodial parents and child support proceedings. This project involved an in-depth exploration of the legal processes that they experienced in these cases, really focusing on the court interactions and examining them from multiple perspectives and over an extended period of time. This approach helped us to explore the meaning that they draw from these legal interactions, as well as the complexities of the legal processes and outcomes. And the hearings that we looked at have very important access to justice implications, and they reflect the response of a legal system on individuals who are experiencing systemic issues of poverty and disadvantage. The methodology, I’ll talk a little bit about, including the research setting, the data collection process we followed, and our longitudinal approach, giving you a timeline of one case to put in context the data that we collected. Our data involved five years of qualitative study of civil justice experiences. We did interviews, we did a court-based ethnography. And we also studied transcript case files and field notes from our observation of cases.

In addition, we did longitudinal interviews with a sample of child support payers, tracking their case for over a year. The interview data included interviews in six counties across two states. We talked to judges, family court commissioners, government child support attorneys and defense counsels, and others who have relevant knowledge, including courthouse librarians, staff at various jobs programs, and staff at temp agencies. We also talked to child support plaintiffs who are primarily mothers, and overall, we interviewed 145 individuals, not including the child support payers. Our ethnographic data included observations of court proceedings in two counties. These observations took place over almost five years. And while we were doing this, we tried to have two researchers simultaneously in court, observing. And here’s the data on those two sites in terms of how many hours we spent collecting datas and the number of cases we observed. With a team-based ethnography, one of the advantages is that our data collection analysis is what we call iterative, cyclical, and self-reflective. We were engaged in ongoing coding of the data as we collected it.

And we staggered our visits, so that as we analyzed the data or insights, could inform for future data collection efforts. The team approach, rather than relying on one researcher individually, heightens what is referred to as reliability in research terminology by enhancing exposure to multiple interpretations of the data. And we did have a multiracial team working on the project. And our analysis draws on the common practices, including open-coding, identifying outliers and negative cases for individuals observing this report to get you a sense for our approach to data collection analysis. As I mentioned, we also studied 40 defendants’ cases more closely, conducting a longitudinal study. We looked at 20 defendants in two different field sites. And first we did an in-depth interview with them. Then we tracked their case for a year. And if they had any hearings during that time, we tried to attend, and then interviewed them after the hearing to find out, from their perspective, why the hearing took place, what they did to represent themselves, how they understood the hearing, and what they saw as next steps in the case. And then we did a follow-up interview at the end of approximately a year.

Here’s one of the cases to give you a sense for what that data actually looks like. All of the names included here are pseudonyms, they are fake names substituted for their real names. So this is data, or this is the case over the period of 2015 to 2017. As you can see here in the gray shaded area, that’s during the period of time that we essentially conducted our longitudinal study of this particular case, beginning in January 19, I mean, 2016 through April of 2017. Here you’ll see in the little white boxes, each data collection episode. We observed some of the hearings in the case. We conducted interviews with him, following those hearings. And were able to, over the course of that approximately one year, and I think four months or so, attend five hearings in his case, and interview him on four occasions about his case. There were other events happening in Lucas Morales’s case that we did not participate in. There was also a parallel track of custody proceedings between him and the mother of his child.

And I’ve included those in that part of the slide. As I mentioned, this is an ongoing project. I just included here a list of publications from this particular study. But for today, I’m gonna be focusing on one paper, “The Child Support Debt Bubble. ” As I mentioned, one of the challenges in child support enforcement low-income families, or no income families is that debt can accrue, and it can accrue to exorbitant levels. This is something that the child support enforcement system is well aware of, and they themselves have been studying, and they have produced multiple reports that address what they refer to as uncollectable child support debt. And one reason it’s uncollectable is simply because the individuals who owe the debt will never be in a position to repay the debt. One of the phenomenons that happens in this area is that I mentioned several factors can contribute to this accumulation of debt. One of them is individuals continuing to owe and accrue child support debt while they’re in prison, and also the interest rates imposed on child support debt. This particular case, Jeanetta Henderson v.

Franklin Davis is a case I observed in child support court in March of 2017. And so I’m gonna share with you an excerpt from the transcript to give you a sense for how that case transpired. At the time of the hearing, Franklin Davis, who owed child support was actually himself in prison. And so he’s participating through a phone call. Commissioner Colwell is the commissioner who is presiding over the hearing, and he’s getting Mr. Davis on the phone. And the mother in the case was not present at the hearing. And so again, these are pseudonyms. Commissioner Colwell: “Hello, Mr. Davis?” Franklin Davis: “Yes.

” Commissioner Colwell: “This is the court calling. Sir, are you there?” Mr. Davis: “Okay, sir. ” The other individual present for the hearing is the state’s attorney, Mr. Jensen. He represents the interest of the child support office. He does not represent Mr. Davis or the mother who is entitled to receive support. Ms. Henderson is not present.

Attorney Martha Jensen appears on behalf of the state. Commissioner: “Sir, how long have you been incarcerated?” I included ellipsis there because there was an extended conversation about why Mr. Davis was in prison and how long he would be. They conclude he’s gonna be getting out in December. And he says, “Yes. ” So Mr. Davis had filed a petition to reduce child support because he was incarcerated and wasn’t in a position to pay child support while he was in prison. And so the commissioner says to him, “What is the substantial change in circumstances that would cause me to change your child support order?” Mr. Davis says, “Well, I’m unemployed right now. I can’t pay anything towards my child support obligations.

” Commissioner: “And why are you unemployed?” Mr. Davis: “Because I’m incarcerated. ” Commissioner: “And why are you incarcerated?” “Because of the domestic violence issue. ” Commissioner: “And so you think you should benefit from that behavior?” This is with a different woman. I should just mention, it’s not with the mother of the child at issue in this case. Mr. Davis: “No, I don’t think that I should benefit from it, “but I mean, it’s just gonna accumulate. “So it’s happened once before where I was incarcerated “and it was suspended until 60 days after my release. “And so I figured I’d try to do it this time “and see if I can pick back up on my obligations “once I’m released. It only makes sense.

” Commissioner: “It only makes sense to you. “I guess I asked that question, sir, “because you get a benefit from doing something, “well, one, it’s not good, and two, it’s against the law, right?” Mr. Davis: “I don’t see what the benefit would be “if I’m suspended. That doesn’t mean that I’m not obligated to pay. ” Commissioner: “But for that time period, it would stop. “That’s your benefit. Because why else would you be asking for it?” Mr. Davis: “Is that a denial?” Commissioner: “I’m still thinking about it “because I’m not really sure. It’s difficult how this cuts. ” Mr.

Davis: “I’m already, I believe over $25,000. ” Commissioner: “Correct. ” Mr. Davis: “So it’s possible that if I get released, “then I could have a warrant for my arrest for unpaid child support. ” Then the state’s attorney joins the conversation and says, “No, there would have to be an order to show cause. ” This is essentially an order directing him to come to court. Mr. Davis: “When I was just out, I was paying child support. “I was working and I’ve actually managed to hold onto my job. “They’re interested in rehiring me upon my release.

“So I will be immediately “getting back to paying my obligations. “But in this situation, “which I understand that it is my fault for why I’m in here, “this situation prevents me from paying anything toward child support. ” Commissioner: “Right, and I guess I’m like thinking about “when people come in here and ask, “because there’s a disability or injury or there’s something, you know, you see what I’m saying?” “Yes. ” State’s Attorney Jensen: “The case with Ms. Henderson is the only one that’s here. “And in that case, the order’s only $20 per week. “We were getting payments in September of 2016 “and the arrears of record are 589. “So if he owes a total of $25,000, it’s not on this case. ” Mr. Davis: “Yeah, that’s for the one I previously.

. . ” State’s Attorney Jensen: “Yeah, so we’re only talking about this case. ” Commissioner: “Sir, at this point, I’m not finding “that it’s a substantial change of circumstance. I’m denying your request this afternoon. ” Mr. Davis: “Okay, all right, thank you. ” Commissioner: “Thank you very much; good-bye. ” I should clarify that the legal standard for obtaining a change in the child support order is a substantial change of circumstances, as I mentioned earlier, that can be the loss of a job or a change in one’s earnings. In this case, the payor or obligor, Mr.

Davis, had mentioned he had another incarceration experience, and he previously was able to get his child support order suspended during that period of time until he was released and able to rejoin the labor force. In this case, the commissioner denied that request. And so we do see across the United States, different approaches that jurisdictions and judges take to incarceration. Some treat incarceration as a voluntary unemployment under the theory that becoming incarcerated resulted from someone’s voluntary commission of a crime, and that it would be unfair and against public policy to excuse them from their child support debt. Competing argument is that the reality for people in prison is that they aren’t able to pay child support unless they have accumulated money and bank accounts available to them. For low-income families, that’s just not the case. And so there is a disconnection between their actual ability to pay and the child support they’re being ordered to pay. And as a result, continuing the child support order while they’re in prison isn’t actually putting any money into the pockets of their families who are entitled to support, and it’s only resulting in the additional accumulation of child support debt while they’re in prison. We know that there are many parents in prison. DOJ data show at mid-year in 2007, more than half of the male prisoners, roughly 51% of state inmates and 63% of federal inmates were parents of minor children.

So we have many fathers in prison who have child support orders in place and are subject to this phenomenon of their child support orders being held in place and accumulating debt while they’re in prison. More than 40% of the fathers in prison were Black, and of the approximately 1. 5 million children with a father in prison, almost half were the children of Black fathers. These phenomena I’m describing are falling very hard on low-income Black fathers in particular. Between 1991 and 2007, the number of incarcerated parents of minors increased by 79%, so the problem is growing. And we also know that, at least according to one study, one-quarter of inmates in prisons had a child support case on the books at the time they were incarcerated. Here’s a chart showing child support, or interest rates on arrears that states impose. Despite the evidence showing, and there have been a number of reports at the state level showing the disproportionate amount of accumulated child support debt is attributed to interest rather than the amount of child support that’s actually owed. So for example, in this context, the primary factor is the fact that states have large interest rates. One study showed that 27% of California’s child support debt in 2000 was unpaid interest rather than the actual child support that was owed.

Despite this evidence showing that the interest rate that’s imposed can have almost an accelerator effect on the accumulation of debt, 35 states continue to charge interest. A handful have set their rates at more reasonable levels. As the chart shows, most continue however to charge interest in the range of 4% to 12%. Rates that are really unwarranted in today’s market, and impose a crushing financial burden on poor non-custodial parents. That accumulated debt can grow quite large when an interest rate is levied. So this next chart shows interest accumulation over five years. And the amount of debt at year one is $1,000 in arrears. And it shows how that rate of interest can accumulate under three different interest rates. So they can accumulate very rapidly, even on a $1,000 debt when a high interest rate is levied. With a 12% interest rate, a $1,000 child support debt balloons to $1,860 in only 50 years, so almost doubling, an increase of over 80%.

This vastly exceeds the $1,221 debt that would accrue with a 4% interest rate. Consider also the more than $25,000 in child support debt that is owed by Mr. Davis, whose hearing I just shared with you. Standing alone, that figure sounds enormously large by itself. And we can readily make assumptions about him because of the debt that he owes. We have to ask ourselves, so whether our perception of Mr. Davis would change if he owed $5,000 instead of $10,000 or $10,000 instead of $25,000. The $25,000 debt figure almost automatically makes us think of him as maybe a deadbeat parent. But when we consider the fact that Mr. Davis, in fact, worked a low-wage job in a sausage factory, and if he have a large debt of $25,000, we have to ask ourselves, how on earth would he have accumulated a debt of $25,000 with his very low-wage job? And so we have to ask, what role does the interest rate pay? So this next slide uses his case as an example of how that 25% debt can be accelerated over time, depending on what the interest rate is.

As mentioned earlier, Mr. Davis had two child support orders, $375 a month and $87 a month. And at the time of his hearing, his child support arrears total $25,587. He was worried about the prospect of accumulating more debt while he was in prison. And that’s why he filed the petition to reduce his child support arrears. This figure shows over the course of five years, what his debt might look like, depending on what kind of interest might be imposed on him. Here, I used a 12% interest rate to flesh out these various simulations. Assuming he resumed his low-wage job at the sausage plant, figure three projects debt accumulation with a 12% interest rate over five years with four different simulations, all of which demonstrate that his debt would never be paid off. One simulation assumes that he makes no payments over the course of five years. The debt obviously then would skyrocket, nearly tripling to more than 75,000 in only five years.

The second simulation imagines that he pays the current support in full each month, that 500 something, but he makes no additional payments on the accumulated debt. The debt would still escalate to more than $45,000 within five years, almost doubling. The third simulation assumes that he pays this current support order in full each month, and he pays an additional $100 a month toward the arrears. And this is very common for parents to have a total monthly child support obligation that essentially includes two payments: one payment is the current support order, and then a smaller payment, which is an additional payment to try to pay down on the accumulated debt. And that additional payment can be anywhere from around $10 a month to maybe $100 a month or more. And that’s a repayment toward arrears. So in this third scenario, we would leave him with only $600 a month to live on after deducting child support from his monthly earnings. Even in that scenario, where he’s paying the full amount of child support and $100 towards debt, he would never pay off the arrearage. It would grow even though he was paying almost $700 a month toward child support. And then the final scenario is really an indictment of our current child support system, because in this situation, really, which would be the most onerous for Mr.

Davis, he will be making the statutory maximum amount of child support payment that will be permissible for his circumstances. That will be paying 55% of his net earnings toward child support and his child support debt. And even under these conditions, the debt would still grow. He would pay $639 per month for child support. That will be his current order, plus $177 a month toward arrears. But he would only be having $523 a month left over for his living expenses. So he would be working a full-time, low-wage job and making a maximum statutory amount of child support payments by more than $5,000. And he would still. . .

His child support amount arrearage would increase by $5,000 in five years. So he would never pay off his arrears; instead, they will grow more onerous over time. And so he would forever be under this debt anchor of child support, even if he were doing everything that the law expected of him, which I think really underscores the concerns in the civil justice system with how child support and child support debt accrues for low-income families who are trying to make ends meet, but also fulfill their obligations to their families. I wanna emphasize that Mr. Franklin is not alone. Of the 5. 5 million noncustodial fathers or parents who owe past due support, it’s estimated that about a quarter of them are what are known as unable non-payers rather than deadbeats, meaning that they’re not payers, but also financially, they just are unable to pay their support. I also want to share with you before I wrap up, some of the words or voices of the fathers I interviewed and their perspectives of how the child support system works. Many of them have very negative experiences in court, and are troubled by the fact that they are being summoned to court about child support debt when they are trying their hardest to get money together to pay for their children’s needs. Again, these names are pseudonyms, Quentin Bryant: “I don’t need them to tell me “to take care of my kids.

“I don’t need them to take my money, “because they think I’m not going take care of my kids over. “They try to make you feel like they’re trying to make you regret you having your kids. ” So pretty strong words. The idea that the court experience may even make a father regretful that he is a father, because that experience is so demoralizing. Ogechi Rhymes: “It’s a stereotype. “It’s just like a stereotype if I’m a Black person. “If I’m Black, I’m a deadbeat. “I’m a deadbeat or a drug dealer or whatever. Like, well, ‘He’s not doing nothing,’ stuff like that. ” So again, a concern that once they get into court, that they’re not humanized, that they’re thought of as just another person in court who owes support, and that that experience as a Black man is reflective of stereotypical thinking.

Nicholas Rebholz: “The outcome was more like, “‘Okay, this is another guy, another male. “‘Let’s see what, you know, what’s going on with him, “‘and let’s just keep it moving. “We’ve got 30 more cases left. ‘ That’s how I felt. ” So this dad is talking about the experience he has in court, where there are a large number of cases on the court calendar. The hearings are relatively short, often 5 to 10 minutes in length, and a feeling that he’s just being processed through the court system without a real focus on his unique circumstances. John Quarles: “I just hate going to court. “I really just hate, do. Then I asked him, “Why do you hate going to court?” “Because it’s all stereotypical. “It’s just like another Black dude in court, “and it’s just like I’m here for you, a warrant for child support or something like that.

” So again, someone feeling like people don’t recognize him as someone who is committed to his children, and that he’s just one more person, one more Black guy who doesn’t care about their children and needs to be subject to enforcement proceedings in order to compel him to take care of his children. Charles Caywood: “Let a parent be a parent, man. “Some people need to get, I mean, “then people need to wipe the slates clean, “wipe the slates clean, kill all that interest and try to allow us to pay them, man. ” So someone here who was operating under crushing child support debt and understood that interest was playing a large role in the accumulation of his debt. Again, another statement. “I’m here today because I provide, “my kids don’t want for anything. “Everything I buy, my daughter thinks “I am supposed to be sending it home with her. “I’m buying more and more things because she doesn’t live here. “I hate to be downgraded as a father. “I’m a damn good father, I take care of my daughter.

“I also take care of a 10-year-old old full-time. “You want me to send $100 a week? “What does that leave at home for bills and my other daughter?” So there’s a real economic challenge for low-income families, because there isn’t often enough money to stretch across multiple households. There’s also the phenomenon of fathers who pay child support feeling like they can’t then have enough left over to spend money on their children when they spend time with them. And so some fathers opt to instead make what’s called in-kind payments, payments that provide clothing or shoes or other needs of the child on a one-to-one basis, rather than paying through the formal child support. And that can lead to them being treated as if they are not supporting their children. Otis Berry: “They’re not really concerned about the child “as they say they are. “And then it’s, to me, it’s like, “okay, you’re taking money from me. “I work, and it’s going toward the kid. “Okay, that’s fine. “And the mother’s being provided and helped, that’s fine.

“You know, it’s like, whatever little money I get, “it’s like everybody’s like the government, “the child support people, “they’re like, and nobody’s like, helping Otis. “You know, it’s like everybody want from me, “everybody’s grabbing from me, but nobody’s considering that it’s affecting me, you know. ” There’s a lot of negative feeling, but also a feeling of feeling demoralized for many of the fathers we talked to, because their own needs often aren’t met as well, and they feel often between a rock and a hard place, because they can’t afford their own apartment and their own transportation and supporting their children as well. And then they go to court and they are treated as if they don’t care about their children. So I do wanna just wrap up by saying that I have a deep amount of gratitude for the people who made my study possible, particularly individuals who participated in the study, who were interviewed or allowed us to hear from them about their experiences in the child support system, including the fathers and the mothers and the court staff and the officials in the study sites where my team gathered data. Also, I want to acknowledge all the administrative library and research staff of my law school and the Institute for Research on Poverty and the Russell Sage Foundation, who also have supported this project. This final slide is a list of the grantors who have helped to finance the research part of this project as well. And finally, I wanna say thank you very much for PBS Wisconsin for inviting me to participate in this presentation. It has been a delight to share my research with you. And also for individuals who might be interested in learning more about the broader concerns around civil access to justice, I would encourage you to access the online resources that have been generated by the American Academy for Arts and Sciences, which will give you a broader sense of the scope of the issues I’ve addressed.

Thank you again.