In the past twenty years, the issue of unpaid child support has received concentrated attention, both from individual states and the federal government. During this same period, the governmental cost of providing for impoverished children and their families has escalated enormously. Historically, the United States legislature and judiciary avoided “intruding” into state family law issues; however, for all practical purposes, this era has ended.
There now exists an incredible array of enforcement tools that make any errant child supporter fair game. One such enforcement tool, surprisingly little known to the practicing bar, is a federal child support enforcement system entitled The Deadbeat Parents Punishment Act of 1998 (“DPPA”), 18 U.S.C. §228 . The DPPA provides that if a child support obligation remains unpaid for longer than one year, or is greater than $5,000 for longer than one year, the offender is subject to six months imprisonment. If the child support obligation remains unpaid for longer than two years, or is greater than $10,000, the offender is subject to two years imprisonment. Upon a conviction, the court shall order restitution in an amount equal to the unpaid support.
While the offenses set forth in the DPPA involve “interstate” support obligations (thereby presenting a jurisdictional basis for use of the Commerce Clause), the Act’s enforceability is not limited to the movement of the payor from the original state granting the support order. The Act applies even if it is the child and his/her custodian who moves across state lines. In other words, DPPA applies whenever the obligor and the obligee reside in different states, irrespective of how that separation came about. In today’s world, where people move more frequently, the DPPA is a powerful weapon that can be aimed at a delinquent father simply because the child moved to another state.
The Seventh Circuit Court of Appeals was among the last federal appellate courts to uphold legislation for child support collection based upon the Commerce Clause. In United States v. Black, 125 F. 3d 454 (7th Cir. 1997), the Court went to great analytical lengths to affirm the power of Congress to enact the Child Support Recovery Act (“CSRA”) of 1992, the precursor to the DPPA. In Black, two deadbeat fathers were convicted under the CSRA. On appeal, they argued that federal courts had consistently rejected acceptance of jurisdiction over “family law” matters, which had been exclusively exercised by the states. The Seventh Circuit disagreed and upheld the convictions. In doing so, the Court recited in detail seven cases in which courts had uniformly held that the CSRA was an acceptable exercise of Constitutional power under the Commerce Clause. The Court reasoned that use of the Commerce Clause is typified by major criminal problems affecting states that the states are not fully equipped to address. Despite most states adopting the Uniform Reciprocal Enforcement Support Act, which provides for the extradition of interstate child support defendants to be confronted by state criminal prosecution for failure to pay child support, the Seventh Circuit opinion quoted Congressman Charles Schummer in support of the CSRA:
The need for legislation is clear. . . many of our States have done their best . . . but the ability of those states to enforce such laws outside their own boundaries is hobbled by a labyrinth of extradition laws and snares of red tape. As a result, skipping out on child support is one of the easiest crimes to get away with in America today.
See also 138 Cong. Rec. H7324, H7326 (Aug. 2, 1992) (remarks by Congressman Henry Hyde). The Black Court found that under DPPA a crime is completed when all of the statutory preconditions have been met, in terms of the length of time the money has been withheld and the amounts involved. The fact that by the time of prosecution the children may have become emancipated is irrelevant.
In 2010, another case called attention to the DPPA. In United States v. Bell, 598 F.3d 366 (7th Cir. 2010), the trial court found that the defendant was the father of a child and ordered him to pay $520 per month as child support, indicating that the defendant’s net income was about $2,600 per month. If one were to justifiably add 30% to the foregoing net as probable taxes and other allowable deductions, the defendant’s gross income was approximately $3,714 per month. Despite the defendant’s capacity to pay, he fell behind in his payments and, by 1999, owed more than $14,000. At the hearing for contempt, the trial court ordered him to pay an additional $104 per month on the arrearage, for a total of $624 per month. Shortly after this additional burden was placed upon him, the defendant left Illinois (presumably believing he had left this obligation behind). In 2008, a Chicago grand jury indicted him for willful failure to pay child support from February 2000 to June 2007, in violation of the DPPA. He was subsequently convicted and sentenced to 24 months imprisonment and ordered to pay $83,890 in restitution. The Seventh Circuit rejected the defendant’s argument that the five year federal statute of limitation applied to his offense. The Court made clear that the non-payment of child support is a “continuing offense” such that the statute of limitations does not begin to run until the due date of the last payment.
Inasmuch as most child support orders are terminable upon emancipation or achieving the age of majority, the criminal enforcement power of the DPPA can reach out 23 years from the birth date of the child (assuming that the age of majority is 18). Indeed, the DPPA may be extended even further if the payor has been ordered to pay higher educational expenses or if the child is disabled and entitled to support beyond the age of majority.
The DPPA is a rather peculiar criminal law. Its application is limited to situations in which the parent-obligor and the child to whom support is directed reside in different states. Therefore, a delinquent parent living in the same state as the child may well be abundantly guilty of a gross violation of his responsibility, but will not be prosecuted under the DPPA because the obligor and the child reside in the same state. It has been estimated that less than one-third of delinquent parents who meet the time and money requirements for prosecution under DPPA cannot be indicted because the “interstate” connection is missing.
Given the number of obligors who shirk their child support duties, it is safe to assume that violations of the DPPA number in the hundreds of thousands. However, there appears to be a curious progression with respect to selection of those chosen for prosecution under the DPPA where only a few are “tapped” for indictment and prosecution.
Before the United States Attorney’s office prosecutes an offense, it notifies the intended target by way of a letter advising of the DPPA violation and requesting payment of the arrearage within a specified time period. If no adequate response is received, the case is then referred to the Federal Bureau of Investigation for gathering of evidence for presentation at trial. Another letter is then sent to the prospective defendant. Absent payment, or satisfactory response, indictment and prosecution follow. Effectively, what we have is a throwback to “debtor’s prison” – a debtor able to pay his creditors may avoid imprisonment; but one who lacks the means to pay serves time.
Despite the great weight of authority upholding the DPPA, it is astonishing to find such unanimity among the circuit courts where there clearly appeared such a wide area for disparate opinions. It is true, nonetheless, that the DPPA is solidly with us and little more needs to be said about the legitimacy of its origin.
The Pendulum Has Swung Too Far. Social movements adopt a tempo that often reflects the appearance of a new generation. I was born during the “Flapper” era, came to adulthood in the “greatest generation,” attended college and law school during the “baby boomer” years, and now deal constantly in law practice with the new “generations ‘x’ and ‘y’.” The nuclear family has become a lost ideal in favor of small urban families units, bound by loose family ties that are often frayed and parted by divorce. While hard to accept by traditionalists, the institution of marriage is under attack such that nearly 40% of all children born today are born to single mothers.
With divorce and “living together” has also come less respect for the educational training of children born of these unions and who often are raised in poverty. The loss of a stream of income that accompanies the departure of the income-producing parent - married or not - is often devastating, partly relieved only by interventions of social agencies and the courts with the imposition of court-sanctioned support orders. The resulting support orders were always but a portion of the money formally available as a united family, thus assuming a significant fall in the standard of living of the divided family.
A review of child support enforcement tribunals demonstrates that the greatest portion of those who appear as respondents are among the working poor and the laboring class of our society. Unquestionably the largest segment of our society exists from payday to payday and any disruption or displacement of a periodic paycheck will quickly find the employee destitute.
Over time, it became evident that local judicial enforcement of child support was simply inadequate and the level of child support imposed in divorce matters varied widely from place to place. Accordingly, in 1988 the federal government attempted to level the playing field by establishing “guidelines for support” that referenced a mechanical system for calculation of child support based on the net income of the payor. Thus, a payor ordered to support one child would pay 20% of his or her net income while a payor ordered to support six or more children would pay 50%. Such an arrangement does induce large scale uniformity among the states, but it precludes deviation from the schedule where the payor’s circumstances may be unique. In other words, many support orders ignore the realistic ability of the payor to meet the statutory amount, particularly where the payor’s income is low and he or she is supporting a new spouse or other children. The net consequence is a predicable default in payment, bringing with it the entire panoply of child support enforcement proceedings.
Not only did the federal government implement the child support guidelines, but there followed a succession of federal acts meant to enhance the collection power of states in the enforcement of child support orders. See The Family Support Act of 1988, Pub. L. 100-485, amending 42 U.S.C. §§ 657(b)(1) and 602(a)(8)(A)(vi); The Child Support Recovery Act of 1992, 18 U.S.C. § 228; Full Faith & Credit for Child Support Orders Act, 28 U.S.C. § 173(B); Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. 104-193; Uniform Interstate Family Support Act; Expedited Child Support Act of 1990, P.A. 86-1401; Child Support Payment Act, P.A. 94-87; Income Withholding for Support Act, P.A. 90-673.
Until recently, the only crimes in Anglo-American law for which there are NO statutes of limitation were treason and murder. Now, Illinois and many other jurisdictions have added past due child support to this list; they may be collected at any time. The elongation and negation of statutes of limitation has created a substantial band of primarily men who, in their early lives, shrugged off their responsibilities and managed to carry on a life far removed from the initial misery of child support enforcement actions, which initially lead to their evasion and/or disappearance. Many of these young men who were “losers” in their young years have climbed the ladder of social and financial success and, not infrequently, become community leaders. The computer age has made it virtually impossible for anyone to disappear permanently. Therefore, there is an ever-present possibility of prosecution by welfare authorities or by a former spouse, or one acting on behalf of the children, for whom the support was withheld. Once an arrearage is established and continues to grow, there is little hope that life will ever be peaceful, pleasant or fulfilling for any of the original family involved. There will be forever more a deep psychic hole within the family and the children because of a loss of not only the financial security but the intimacy of relationship with the absent parent.
We now understand that the magisterial power of the state, and all the state controls can and will be directed towards the defaulting parent. The range of punishment and deprivation is enormous and can include (1) imprisonment; (2) revocation of any required state-issued license (driving, hunting, medical, dental, legal, etc.); (3) revocation of passport; (4) interception of tax refunds; (5) the execution of levy and liens against all property; (6) the invasion and sequestration of any government-qualified pension plan; (7) the interception of State and Federal tax refunds due the defaulting parent; (8) the attachment and invasion of spendthrift trusts; (9) public notoriety and announcement of the individual dereliction of duty, and so on.
Compound all the foregoing punitive powers with the further fact that (1) there is no authority for any tribunal to relieve or reduce an accumulated arrearage of child support due, (2) little or no consideration will be given to a defaulting parent with respect to reduction of ongoing orders of support, and (3) there is no escape from this duty and obligation by means of bankruptcy.
In summary, what we have is an obligation that continues to increase due to passage of time and the addition of interest upon past due support. For those (largely impoverished) individuals, there is no refuge and no means to escape the many hooks that have been hung out to ensnare them. Thus, they must continue to live life on the edge, possibly subject to federal indictment and felony conviction if they happen to live in a different state than the child for whom they were ordered to pay support.
It is clear from a review of the prosecuted cases, that the federal court enforcing the DPPA readily acknowledges that the original contempt order by a state tribunal is perfunctory in character, leveled against those who are certifiably destitute and generally guilty of disobedience of the court order. Because the payor is usually indigent and undereducated and the proceeding is styled as a “civil proceeding” with an uncivil end result, i.e., incarceration, the defendant is not provided with legal counsel, nor is there any real prospect for presenting any meaningful defense except poverty.
If the defaulting parent has been unable to keep current in payment of the original amount awarded (for whatever reason), how can one believe he will be able to do better when the court adds a further burden? There is something awry with a system that continually concerns itself with sending mostly poor, uneducated, poverty-ridden people to jail and has not, in any respect, come up with a system that would alleviate or change the nature of the presenting problem. It is true, as argued by DPPA proponents, that such laws do manage to extract literally hundreds of millions of dollars in back child support payment by using these draconian means. There is not, however, any measurement of social cost or financial calculation that considers the judicial, administrative, and incarceration costs, along with the opportunities a jailed prisoner loses during the period of his incarceration.
Another important element of the social costs, which is rarely discussed or acknowledged, is that a parent obligated to support, who cannot or chooses not to perform that obligation, eventually has no alternative but to ultimately withdraw entirely from his former family. This net result brings about a loss to his children that can be as ultimately hurtful and disorienting as the lack of cash flow in a household. The children will lose a father figure who, while perhaps not ideal, may be the only father the children will ever have.
These men who must withdraw are compelled to live out their lives as fugitives, changing their identity and credentials to conceal their whereabouts. Many also go completely over the line to criminality, finding it difficult to obtain and hold jobs forever in fear of arrest. Many of them join the “underground economy” and are never heard from again, paying no support, taxes or making any contribution to society.
Few crimes in America carry a lifetime sentence, surely not a sentence beyond the grave. The exception is unpaid or overdue child support. Payment may be demanded at virtually any point during life of the obligor and can be asserted as a valid and fully fundable claim following his demise. The enforcement branch of the Internal Revenue Service has awesome powers to levy, sequester and collect with or without notice what is allegedly due by a targeted tax payer. The tax obligation, like child support, is not dischargeable in bankruptcy and is also collectable against the estate of delinquent tax payer, even to the point of following assets into the hands of the heirs of the taxpayer and crediting payment of this exalted obligation. The IRS has continually let it be known that those who cannot pay in full their determined tax liability may nonetheless confer with its agents and settle the claim on terms and conditions that are acceptable to the taxpayer as well as to the IRS agents. It is thus often publicly revealed that claims of many millions and/or thousands in unpaid taxes have been settled for a pittance.
What is needed in the child support area is some reconstitution of the whole system as it now exists. A candid view of what is now there leads to the conclusion that the system does not work well, and that improvement is readily within reach IF there is a change in the basic assumptions surrounding the child support collection imbroglio. We need to establish a tribunal that can examine and mediate child support amounts and arrearages with assurances that the judicial system will accept the resulting recommendations.
The most important positive element of any such program would be recommencement of payment of support from the obligated father to his deserted family. The arrearage problem could be set aside, reduced or not, to be repaid if at all, at some point following adulthood of the children to be supported. Such an approach would hopefully bring the father back into the family, thus extracting him from the black world of fugitive and, further, extract him from the underground economy he has endured for many years.
Joseph N. DuCanto is a founding partner of Schiller DuCanto & Fleck LLP, the largest law firm in the court focusing exclusively on family law and internationally recognized as a model for firms practicing in that field. Mr. DuCanto wishes to extend his thanks to Shannon R. Burke, an associate at the firm, for assisting him in the drafting of this article.