Virginia is on the verge of substantially increasing child-support obligations for the first time since 1988. But the proposed increase, which recently passed a legislative committee as a bill called HB 933, would result in excessive obligations for many parents, more unpaid child support and more jailings for nonpayment at taxpayer expense. Some noncustodial parents already pay more than 50 percent of their income in child support.
Order people to pay more than they can afford, and they may simply give up and not pay at all. Even the drafter of the increased child-support schedule, Dr. Jane Venohr, admitted in 2012 that “Research shows that noncustodial parents whose child support obligations are more than 20 percent of their income are less likely to pay.”
But such high obligations are commonplace even under Virginia’s existing child-support guidelines. In Herring v. Herring (2000), Virginia’s existing child-support guidelines set the obligation of John Herring, a father of two, at $673 per month, more than half his monthly salary of $1,300. He was so poor that he lived in his sister’s basement. When a trial judge reduced his obligation to a more reasonable $484 per month — 37 percent of his income — the Virginia Court of Appeals reversed that reduction, because it was contrary to Virginia’s existing child-support guidelines. Under the increased child-support schedule drafted by Venohr, this poor man’s child-support obligation would go up even further.
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Her increased child-support schedule inflates the obligations of many poor and working-class parents: It makes noncustodial parents pay for costs that custodial parents have already effectively been reimbursed for by the federal tax code. That includes payments like the $1,000 per-child refundable tax credit, the earned-income tax credit and the personal exemption of $3,900 in income from tax per child. For many lower-income households, these tax benefits amount to most of the cost of raising a child.
The child-support increase will magnify existing inequities in Virginia’s child-support guidelines. Under the current guidelines, a child-support obligation is first calculated based on income and number of children, using a table or “schedule” to cover child-rearing expenses in general. Then, the obligation is increased by actual expenses incurred by the custodial parent for certain specific categories of expenses like daycare and health insurance.
The final result can consume most of the income of a low-income noncustodial parent, because the child-support guidelines do not contain any cap on child support as a percentage of income. In a married household that is not wealthy, parents who spend a lot on daycare will tend to spend less on everything else, including certain optional expenses on the child. So in the real world, big daycare expenses will result in somewhat smaller spending on other aspects of child-rearing.
But Virginia’s child-support guidelines ignore that reality. Virginia’s child-support schedule sets obligations based on income without considering, or adjusting for, other additional obligations that will be awarded on top of it, and reduce the net income available to pay child support. Not only will that schedule increase under HB 933, but the bill also raises by up to $250 the amount noncustodial parents must pay for unreimbursed medical or dental expenses.
By increasing the number of impossible-to-pay child-support obligations, the proposed increase may also result in more people being jailed at taxpayers’ expense. You can be jailed for not paying your child support. That’s an exception to the usual rule that imprisonment for not paying your debts violates the 13th Amendment. Thousands of people are already jailed across America for failing to pay child support.
In Mahoney v. Mahoney (2000), the Virginia Court of Appeals refused to hear the appeal of a father who had been found in contempt of court for not paying his child support. The court cited his failure to pay for an appeal bond. That requirement to put up an appeal bond can create a Catch-22 situation for parents, because if they are too poor to pay their child support, then they are also too poor to afford an appeal bond.
The proposed increase may also drive up state court costs by increasing the number of time-consuming legal proceedings involving dead-broke noncustodial parents unable to pay their full child-support obligation. The Supreme Court’s decision in Turner v. Rogers (2011) made clear that states cannot constitutionally jail parents for not paying child support, if the nonpayment is due to a genuine inability to pay. The court stated that while the Constitution does not “automatically require” states to pay for a lawyer for a noncustodial parent facing jail for inability to pay, they must provide either appointed counsel (at state expense) or “alternative procedures” to enable noncustodial parents to demonstrate their inability to pay.
Hans Bader, a lawyer, lives with his wife and daughter in Arlington. He is not a noncustodial parent. Contact him at email@example.com.