May 21, 1998 / 25 Iyar, 5758

When child-support becomes a 'catch-22'

By Dr. Wade F. Horn

Q: I would like an explanation, not an excuse. My stepson was ordered to pay child support and faithfully paid it on time. Then he got into trouble with the law and was sent to prison. He is now indigent, but the public defenders office won't work with him to temporarily freeze all child support obligations so that an arrearage doesn't build up while he is in prison. Consequently, when he gets out of prison, he is in danger of being locked up again, this time in "debtors prison" for non-payment of child support. Neither he nor we can afford a lawyer. Do you have any "fatherly advice" on this matter?

A: A number of years ago, Congress passed a law making it illegal for any court to reduce child support obligations retroactively. The purpose of this law was to prevent a non-custodial parent from avoiding paying past child support obligations by intentionally becoming unemployed. Unfortunately, this law -- as is the case with many laws passed by Congress -- has had some unintended, and very negative, consequences.

As pointed out by this letter writer, circumstances can occur which make it difficult, if not impossible, for non-custodial parents to fulfill his or her child support obligations. For example, when a non-custodial father loses his job, his child support obligations do not ordinarily cease. Hence, when he does find work, he often has built up past due child support obligations, technically known as an arrearage. Now the father has to send double, triple or even quadruple the amount of money mandated by the original child support order so that he can get current with his child support obligations. If he does not, he runs the risk being held in contempt of court and possibly even being sent to jail.

But the same limited resources that are being used to pay child support are now not available to pay his own rent or car payments. Without a home or a car, he may be at-risk for losing his new job. If he loses his new job, and has to stop paying child support once again, an additional arrearage will build up only compounding his problem.

Can you say "Catch 22"?

A similar situation arises when a non-custodial parent is sent to prison. Since inmates do not ordinarily earn income, it is not possible for them to pay child support while in prison (unless, of course, they have outside assets, such as money in a savings account). But unless the inmate stays current with his child support obligations, upon release he will have built up a large past-due child support obligation.

Fortunately, there is a solution. While courts can not retroactively reduce past-due child support obligations, courts can prospectively suspend child support obligations given sufficient justification, such as incarceration.

The trick is to petition the court as soon as possible upon finding yourself unable to pay child support due to a change in personal circumstances. This is because the point in time when the court can begin to suspend payments is not when it hears the case, but when the petition was initially filed with the court.

Ideally, one should use a lawyer to do this. But many indigent non-custodial parents can't afford to do so (after all, if an inmate could afford a lawyer, he could afford to pay child support). In such cases, the court allows something called a pro se petitions, a Latin phrase meaning "for oneself," referring to a person who must represent himself without a lawyer in a legal proceeding. Courts are generally pretty lenient when it comes to accepting a pro se petition, especially from individuals in prison. A simple letter to the court usually suffices.

So here's my advice: have your stepson write a letter immediately to the court of relevant jurisdiction (that is, the court that either issued his child support order or has jurisdiction over its enforcement) declaring that he is indigent and in prison, and requesting that the court temporarily suspend his child support obligation. Of course, before granting the request, the court may require proof that your stepson has no known assets with which he could pay child support. And even if the court grants his request to temporarily suspend his child support obligation, he will still have to pay any existing arrearage upon his release.

I know how frustrating these situations can be. But it is important to remember that the one innocent in these circumstances is the child. Your stepson chose to have sex with the mother resulting in their making a baby. He also chose to break the law, for which he now finds himself in prison.

So while I sympathize with his situation and support his request to temporarily suspend his child support obligations (assuming he has no known assets), I hope that he will use his time in prison to re-dedicate himself to ensuring that upon his release, he will do everything he can to ensure the economic and psychological well-being of his child. After all, what his child needs most is neither an explanation nor an excuse, but a father.

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4/26/98: It's time parents learned to 'Just Say No!'