Child support is a vital source of income for millions of children and their custodial parents who receive the payments. In 2003, the Office of Management and Budget recognized child support as one of the most effective programs in federal government, and it is widely credited for keeping children and their families out of poverty. In 2018, 22 million children under 21 were eligible to receive child support, according to Census Bureau survey data.
State legislatures have enacted laws focused on noncustodial parents who do not, or are unable to, pay child support. These policies overlap into criminal justice. Noncustodial parents with child support orders can intersect with the criminal justice system in two primary ways:
- A noncustodial parent is not in compliance with a child support obligation and that noncompliance leads to incarceration (short-term, primarily in local jails) as a result of either a civil contempt or criminal non-support action taken by the state.
- A noncustodial parent is incarcerated for a criminal offense and has a current or delinquent child support obligation. In this case, the parent’s incarceration is not due to failure to pay child support orders, and incarceration is often for longer periods of time and in a state or federal prison.
As the graphic below illustrates, the distinctions between being incarcerated for failure to pay child support and having child support orders while incarcerated for a separate criminal offense are significant. So are the approaches to improving incarcerated parents’ compliance with child support orders. Child support obligations also factor into the release and reentry of parents.
Child Support and Incarceration
Incarcerated for Failure
to Pay Child Support
- Pay child support
- Go to jail for up to 180 days
- Participate in a diversion program
- Rarely used
- May lead to prison sentence
Incarcerated with a Child
Modification of a Child Support Order
- Modification requires proof of a substantial and material change in circumstances
- Incarceration and unemployment/underemployment may be considered such a change
Barriers to Modification
- Unfamiliarty with modification options or processes
- Limited communication with child support enforcement agencies
Federal Rule on Child Support
In December 2016, the federal Office of Child Support Enforcement published a final rule updating the policies regarding child support enforcement. This was further amended with technical corrections in an updated final rule in 2020. These rules are intended to increase the effectiveness of the child support system for all families and provide for more flexibility in state child support programs. In an effort to accommodate the ever-changing world of technology, these rules also help remove barriers, such as requiring paper documents or written signatures. These updates help to improve efficiency and simplify the process of collecting and distributing child support. While the provisions are, for the most part, optional and do not require state legislation in most states, they do provide an opportunity for state legislators to clarify their child support enforcement laws.
The 2016 rule addresses incarcerated noncustodial parents, incarceration for failure to pay child support and modification procedures for incarcerated noncustodial parents in the following ways.
- Incarceration for Failure to Pay Child Support: the 2016 rule requires states to implement due process safeguards from the 2011 Supreme Court case Turner v. Rogers. Turner v. Rogers provided guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt, including a determination of the noncustodial parent’s ability to pay. The 2016 final rule addresses the use of civil contempt in child support cases and seeks to reflect the ruling of Turner v. Rogers.
- Incarcerated with a Child Support Order: the 2016 rule ensures the right of all parents to seek a review of their order when their circumstances change. While these provisions apply to all parties involved, the rule specifically addresses incarcerated noncustodial parents and their ability to have a child support order reviewed and potentially modified during their incarceration. The 2016 rule prohibits states from treating incarceration as voluntary unemployment for purposes of modifying a child support order.
The 2016 final rule, as well as revisions to the 2020 final rule, made significant changes to improve the program’s efficiency and provide greater flexibility for the states. For more about the final rule, visit the Office of Child Support Enforcement’s Final Rule.
Incarceration for Failure to Pay Child Support
When parents fail to pay child support, they can face legal ramifications, including civil contempt of court, criminal charges and incarceration. Recognizing that most parents cannot pay child support when they are incarcerated, many states have established programs to help parents meet their obligations—both before and as a part of the civil contempt process. These programs include examining child support orders to reflect realistic payment amounts given the individual's circumstances and diversion programs to reduce incarceration rates and increase child support payments.
All 50 states, the District of Columbia and American Samoa have processes for criminal prosecution for failure to pay child support. States consider failure to pay either a misdemeanor or felony, depending on how much money is owed. Some states also consider whether the defendant knowingly and purposefully chose not to pay. Fines and prison sentences vary by state. See NCSL’s Criminal Nonsupport and Child Support page for details on each state’s statute.
Civil contempt proceedings are intended to encourage compliance with court orders rather than punish the defendant. In the case of child support, civil contempt is used to incentivize the defendant, also known as the obligor, to comply with the court order.
Federal law, according to Turner v. Rogers, requires that civil contempt only be used when the noncustodial parent has the ability to pay and is willfully avoiding paying. State policies and practices vary in how this limitation is implemented by the state child support agency. With noncustodial parents who are simply unable to pay their child support obligation, diversion or employment programs could have a significant impact in improving the likelihood of payment. The 2016 and 2020 final rules, as discussed above, formalize the due process requirements from Turner v. Rogers by providing guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt.
Diversion and Employment Programs
Parents who are delinquent in their child support payments may be ordered by the court to participate in diversion programs. Diversion programs are intended to redirect the parent toward training opportunities and away from the consequences of jail time.
Michigan operates an arrears management program through its Office of Child Support. The program has two primary strategies for reducing state-owed child support arrears: 1) the Arrears REDUCED program, and 2) the Lump-Sum Payment program. Noncustodial parents may ask the Friend of the Court (the administrative arm of Michigan state courts that maintains the child support program for counties) to reduce some or all state-owed arrears if they are able to prove it would be very difficult to pay the debt or provide other justification. When determining whether to discharge state-owed debt, the Friend of the Court considers the noncustodial parent’s incarceration history and cooperation with the child support program. As of 2019, 4,995 parents had participated in the Arrears REDUCED program and received an average discharge of $11,517 in state-owed arrears
Georgia has Parental Accountability Courts, which seek to remove barriers to non-payment of child support, such as incarceration, unemployment, lack of education and substance use. These courts provide supportive services, including assistance through the Georgia Work Ready program, as alternatives to incarceration. The goal of these courts is to keep people out of jail for failing to pay child support and to increase collections.
Texas’ Noncustodial Parent Choices is a court diversion program that helps unemployed or underemployed noncustodial parents find and maintain employment. Program participants must spend 30 hours a week looking for a job, meet with a workforce counselor every week until employment is found, attend all court hearings and program appointments, comply with the child support order and maintain monthly communication with their counselor following employment. An evaluation of the program found that participants paid their child support 50% more consistently over time, were employed at 21% higher rates and total child support collections increased by 51%.
Washington state’s Alternative Solutions program seeks to connect parents with over 3,500 community resources. These community resources are available to help parents find employment, training, housing, food, medical care or legal resources. In addition, the program can help parents lower their child support payments or reduce state-owed debt and other case management actions, such as getting a suspended driver’s license back.
In Seattle, the King County Prosecutor’s Office operates a Navigator Program to help parents steer through the child support system. The program is voluntary and open to parents who are involved in the Family Support Division’s Contempt of Court Unit or parents who have been referred by the Division of Child Support because they are in search of employment or educational and training opportunities. The navigators connect parents with community partners who can assist with obtaining housing, food and utilities.
Fair Child Support Orders
In addition to diversion and employment programs, states are also looking at the ways to ensure child support obligations are being calculated, as federal law requires, based on the noncustodial parent’s ability to pay. States’ efforts to establish orders that reflect a parent’s current earnings are designed to promote regular payment of support and reduce the likelihood a parent will fall behind on child support and accrue debt.
Arizona, California, Michigan, Ohio and Virginia are operating Procedural Justice-Informed Alternatives to Contempt projects. These evidence-informed programs use case managers trained in dispute resolution and trauma-informed practices to engage parents in processes that adhere to the principles of respect, understanding, voice, neutrality and helpfulness. The demonstration sites are showing promising results and emerging as a cost-effective way to increase child support payments, improve cooperation among families and reduce the use of civil contempt and incarceration.
Incarcerated with Child Support Orders
A second category of incarcerated noncustodial parents are those who are in prison for criminal offenses not involving child support and who have current and/or delinquent child support orders. As of 2018, approximately 2.2 million people were in jails and prisons throughout the United States. According to the Bureau of Justice Statistics, 47% of state prisoners and 58% of federal prisoners have at least one child under the age of 18. In the U.S., over 5 million (7%) of children in the U.S. have a parent who is or was incarcerated. At least 20% of those, or about 440,000 of parents in prisons and jails, have a child support obligation.
Modifications During Incarceration
Incarceration in the United States has increased by 500% since 1980. Despite recent reductions in state prison populations, men of color are still disproportionately represented across the criminal justice system. Some states are taking steps to reduce racial bias in the justice system, such as requiring juvenile justice and probation staff to use “race-neutral” risk assessments instruments to eliminate racial and ethnic bias in detention screening. Children and custodial parents often rely on child support payments for financial stability, and when a noncustodial parent is incarcerated, their earnings are drastically reduced, if not completely eliminated. The impacts of this can be serious for children. Financial insecurity and the traumatic experience of having a parent incarcerated are both adverse childhood experiences (ACEs), which have been shown to have significant long-term implications for children’s outcomes.
Many states once considered incarceration a form of voluntary unemployment and required incarcerated parents to continuing paying child support. With some exceptions, this is no longer the case, as a result of Turner v. Rogers. At least 11 states have statutes that establish exceptions to when noncustodial parents are still required to make child support payments while incarcerated. These exceptions most often include when the obligor is incarcerated due to failure to pay child support and had the means to pay for child support, or if the reason for incarceration is related to crimes against the custodial parent or child. States also created limits on when child support modifications could be altered depending on the amount of consecutive time during incarceration. The most common cutoff point is 180 days or 6 months, followed by 90 days.
Incarcerated parents with child support obligations often are unaware of child support debt accruing while they are locked up, leaving them with significant debt upon release. At least 13 states have statutes providing for automatic child support modifications without action from either parent. This ensures that child support debt will not accrue during the noncustodial parent’s incarceration and does not require them to be aware of any policies or submit any paperwork that might serve as a barrier to modifying the child support order.
Even when obligors are aware of their right to modify child support orders, knowing the process can be a challenge. In addition, child support agencies are not always notified when an obligor is incarcerated. Obligors sometimes do not become aware of modification opportunities until they have already served their time or are nearly finished. Modifying a child support order retroactively has become nearly impossible since passage of the Bradley Amendment in 1986. This amendment prohibits retroactively modifying child support orders—including the reduction or increase of arrears.
At least seven states have modification notification procedures for custodial and noncustodial parents in statute. The federal Office of Child Support Enforcement has a state-by-state page explaining how to request changes to child support orders.
Explore the interactive map below detailing legislation and statutes pertaining to modification of child support for incarcerated parents.