HB1040 - Prohibition on Child Support Abatement During Incarceration

Indiana House Representative Bob Cheatham his introduced HB1040 which seeks to remove from judges the discretion, or rather the obligation, to consider a parents' actual financial resources while incarcerated when hearing a petition for a child support payment modification. Cheatam seeks to overturn the ruling by the Indiana Supreme Court in Lambert v Lambert (2008).

In my analysis of this bill I will demonstrate to you not only why this bill is bad public policy but why it is against the best interest of children.

There is one state that disallows the imputation of pre-incarceration income. That is Nebraska where their Supreme Court concluded that imposing pre-incarceration income on a felon would conflict with the state’s child support guidelines precisely because an imprisoned individual had no “earning capacity.” It likened the situation to other cases in which it had approved the use of earning capacity instead of actual earnings in an initial determination under the guidelines and concluding that in those cases, “there has been evidence that the parent had the present ability to achieve his or her earning capacity.”

I would argue that the Nebraska Supreme Court was wrong. I think that the presumption that a prisoner has no earnings capacity is gross error. Some prisoners retain royalty rights from musical, literary or other works while some own rental property or businesses that are still maintained.

I think re-evaluating Nebraska's decision is superfluous though because of the difference in our child support guidelines. Initially I observe the presumption; "In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded."

Currently, in applying Lambert and the Guidelines, judges are issuing child support payment obligation orders of $1 or no amount based upon an incarcerated individuals actual income. In Indiana we use a standard for application of potential income that is based more upon real rather than imagined circumstances.

Our Guidelines provide that "[a] determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." For incarcerated individuals the prevailing job opportunities are often limited to low paying prison industry or lower paying operational jobs. Lambert has stipulated that this is the earnings level which must be used in making the calculation.

A number of states have concluded that it is appropriate to impute pre-incarceration income to the non-custodial parent. The general basis for using pre-incarceration income in determining child support payment obligations is that an individual chooses to break the law and therefore any resulting loss of income based upon that choice is voluntary. I have great doubt as to the veracity of the claim that there exists a nexus between committing a crime and choosing incarceration.

Quite to the contrary there are numerous individuals who have subsequently been charged with fleeing, resisting arrest or in extreme cases even killing a police officer to avoid apprehension. It is also well settled that the death penalty has not proven to be an effective deterrent to crimes for which that penalty is an option. The choice to commit a crime and the resulting punishment are not a conscious linear process. Thus it is inappropriate to consider crime as voluntary unemployment because committing a crime is so far removed from the decision to avoid child support obligations that it is inappropriate to consider them as identical.

Next, I note the portion of the preface which includes the basis that the purpose of the guidelines is to place a "duty for child support upon parents based upon their financial resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered". I note this for the purpose of acknowledging that there are children of intact families that are living within the financial means provided while a parent is incarcerated. However desirable it would be to have these children maintain the same standard of living had a parent not been incarcerated that is simply not the reality.

We are then left with what is becoming normalized and is the Indiana standard based upon Lambert. The Absolute Justification Rule used in seven states at the time of Lambert considers imprisonment absolutely sufficient grounds to justify modifying or suspending child support.

There is a great likelihood of this proposed legislation being struck down if it becomes law. The state supreme court has made it very clear in Lambert that pre-incarceration income cannot be imputed during the time a parent is incarcerated unless available to that parent during incarceration but does allow resumption of that amount following release. I still believe that income potential is reduced following incarceration but that is not germane to our discussion now.

What I do see happening, should this legislation become law, is a flood of appeals based upon the ruling in Lambert. Considering that many of the individuals who will be proceeding on appeal will be incarcerated individuals with negligible assets and little to no income they will be proceeding in forma pauperis.

Thus, every county where these cases will be proceeding will be paying for transcripts from these cases and will recover nothing.

Quite to the contrary of the possible goal of this legislation is that it will reduce the state's federal Title IV-D incentive payments. I will defer to Cynthia Longest for a complete explanation of this but in short this legislation will increase the percent of unpaid support and damage our standing in support compliance.

A heavy debt burden on a parent following incarceration does affect future support compliance and parenting time. Parents with high child support payment arrears are faced with continuing legal battles where some become fearful of arrest and thereby avoid exercising parenting time.

Additionally, the arrears, which trigger a higher percentage of a wage that may be withheld for child support payments, result in more parents moving into an underground economy where no support payments can be withheld from earnings. Generally the entire earnings of these lower paying jobs provides little more than sustenance for the earner and thus nothing goes towards child support payments.

The excessive arrears creates animosity between parents with the obligor feeling an injustice from an order to pay something that he or she is unable to while the receiving parent is feeling deprived of a payment due. At a time when these parents need to be cooperating to ensure a smooth transition to reintroducing the formerly incarcerated parent into the children's lives they are instead feeling embittered towards each other over a financial issue. This is not best for the children.

Considering the existing sociological evidence, it seems apparent that imposing impossibly high support payments on incarcerated parents acts like a punitive measure, and does an injustice to the best interests of the child by ignoring factors that can, and frequently do, severely damage the parent-child relationship.

Participants at the Child Support Arrears Management meeting on September 22, 2002, in Crystal City, Virginia unanimously agreed that the key to successful arrears management is the avoidance of arrears accumulation.

The Massachusetts Department of Corrections offers a grant based program to inmates at the time of inmate processing that encompasses a IV-D presentation with focus on order modifications. Thus, that state is using incarceration as a basis to seek support payment modifications and is actually taking a proactive step to help the inmates achieve modifications and thereby reduce or prevent arrears.

In 2003 the Connecticut Title IV-D enforcement office proposed legislation that mandates the automatic suspension of the support obligation if the NCP's sentence is in excess of six months. The automatic suspension would not apply if an interested party can provide evidence that the NCP has sufficient assets with which to pay support.

Research shows that children benefit from positive relationships with both parents
resulting in better school performance with fewer problems, lower chances of suspension, expulsion from or dropping out of school, and decreased likelihood of risky behaviors including use of drugs and alcohol and early sexual involvement.

Children of an incarcerated parent are already at increased risk of problems. I am confident that placing an additional barrier between a child and a formerly incarcerated parent will lead to greater harms to these children. That is what this legislation will do.

Ultimately the best interest of the child standard must guide our policy and laws. The Indiana Supreme Court has concluded that the best interest of the child is frequent and meaning contact with both parents. Creating a financial barrier to facilitating parenting time is not best for children and is contrary to policy and case law in the State of Indiana.

The Indiana Supreme Court has concluded that "[n]ot imputing income is the best solution" by observing that "[u]ltimately, adoption of the non-imputation approach preserves the traditional rule imposing support without ignoring the realities of incarceration. Unlike the absolute justification rule, the non-imputation approach allows courts to comply with the Guidelines by imposing at least the minimal support order as provided by Ind. Child Support Guideline 2 [now 3]. This serves the child support system by ensuring that all non-custodial parents remain responsible – at least to some degree – for the support of their children."

To comply with the mandate of the Indiana Supreme Court, reduce the costs to counties, increase compliance with child support payment orders, and, ultimately serve the best interest of children this legislation must be rejected in whole.

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