Legal Services and Noncustodial Parents Who Owe Child Support

CRS Report for Congress
Legal Services and Noncustodial Parents
Who Owe Child Support
July 7, 2005
Carmen Solomon-Fears
Specialist in Social Legislation
Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Legal Services and Noncustodial Parents
Who Owe Child Support
Summary
Enforcement of child support often results in custodial parents and noncustodial
parents being in an adversarial relationship. Noncustodial parents often view it as an
unbalanced relationship, because custodial parents have access to a network of
federal and state resources (e.g., the Child Support Enforcement (CSE) agency and
the welfare agency) that are not available to the noncustodial parent.
Pending welfare reauthorization legislation (H.R. 240 and S. 667) includes
incentives for states to send more of the child support collected on behalf of custodial
parents to the family itself, additional CSE enforcement tools, funding for marriage
promotion programs for low-income persons, and funding for programs designed to
help noncustodial fathers meet both their financial and emotional responsibilities to
their children. Supporters of the welfare reauthorization legislation claim that its
passage will result in more noncustodial parents paying child support. They contend
that noncustodial parents who can afford to, but do not, pay child support will not be
able to escape their duty because of the strong enforcement apparatus, and that
noncustodial parents who cannot afford to pay will be offered services that may
improve their financial ability to pay, as well as their willingness to pay.
In situations in which noncustodial parents find themselves at loggerheads with
custodial parents and the CSE system with respect to paternity and child support,
some have encouraged legal services providers to play a more “balanced” role. They
maintain that providing legal services to noncustodial parents could result in child
support payments becoming a more reliable source of income for custodial parents
if noncustodial parents were provided better access to the legal system and were
satisfied that “they had their day in court” and thereby more amenable to paying child
support. This report describes some of the child support issues faced by noncustodial
parents and discusses areas in which legal services providers funded by the Legal
Services Corporation (LSC) are authorized to support poor noncustodial parents.
The LSC is a private, non-profit, federally funded corporation established by
Congress to provide financial support for civil legal assistance for persons unable to
afford legal help. In FY2004, the LSC distributed $316.6 million of its $335.3
million appropriation in the form of grants to 143 local legal services programs.
Local programs provide legal assistance to individuals based on locally determined
priorities that meet local community conditions and needs. Thus, to a certain extent,
it is necessary for noncustodial parents to advocate on their own behalf, that is, to
make the communities in which they live aware of the problems that they face with
regard to countering unjustified allegations of paternity, obtaining fair child support
orders, meeting their child support obligations, getting child support orders modified
when they have a change in financial circumstances, seeking custody or visitation
rights, and re-establishing family and community ties after incarceration. With only
an estimated 20% of eligible clients receiving legal services (when they need such
services), low-income noncustodial parents must now compete to be included as
clients in a program that does not have the resources to serve all who are eligible for
its services. This report will not be updated.

Contents
In troduction ......................................................1
Child Support Issues Faced by Noncustodial Parents......................3
Paternity Issues................................................4
Child Support Orders Established by Default........................5
Child Support Arrearages........................................5
Modification of Child Support Orders..............................7
Issues Related to Custody and Visitation............................7
Criminal Nonsupport Laws versus Civil Enforcement of Child Support...8
Issues Related to Incarcerated and Newly Released Noncustodial Parents..9
Legal Services and Noncustodial Parents..............................10
Local Priorities...............................................12
Out reach ....................................................13

Legal Services and Noncustodial Parents
Who Owe Child Support
Introduction
Enforcement of child support often results in custodial parents and noncustodial
parents being in an adversarial relationship. From the perspective of the noncustodial
parent it is often seen as an unbalanced relationship because the custodial parent is
backed by the Child Support Enforcement (CSE) agency and in many cases the
“Welfare” agency as well. Although the CSE agency views itself as working for the
state on behalf of dependent children, the custodial parent in effect receives the
benefits of federal/state intervention because the child is in her or his care. This
situation is even more pronounced in the case of low-income custodial parents and
children because they have a link to public welfare agencies. Thus, the custodial
parent has access to a network of federal and state resources that are not available to
the noncustodial parent.
During the last several years Members of Congress and others have
acknowledged that the “best interests of the child” are generally served when both
parents are part of the equation. They have commented that many low-income
noncustodial parents have low levels of education, poor work histories, and
significant barriers to work. They have debated child support issues in terms of
“dead broke” rather than “deadbeat” noncustodial parents and have remarked that
responsible parenthood involves both financial and emotional relationships with
one’s children. Some contend that public policies are needed to support the father’s¹
role as nurturer, disciplinarian, mentor and moral instructor. This new federal/state
governmental perspective is seen in the CSE agency’s funding of access and
visitation programs for noncustodial parents and in pending welfare reauthorization
legislation (H.R. 240 and S. 667, 109^th Congress) that would provide funding for
marriage promotion and responsible fatherhood programs.
The pending welfare reauthorization legislation (mentioned above) contains
incentives for states to send more of the child support collected on behalf of custodial
parents to the family itself, additional CSE enforcement tools, funding for programs
designed to promote marriage among low-income persons as a way to improve the
economic well-being and development of children, and funding for programs
designed to help noncustodial fathers meet both their financial and emotional
responsibilities to their children. Supporters of the welfare reauthorization legislation
claim that its passage will result in more noncustodial parents paying child support.
They contend that noncustodial parents who can afford to pay child support but who

¹ Wade F. Horn and Isabel V. Sawhill, Making Room for Daddy: Fathers, Marriage, and
Welfare Reform, Brookings Institution Working Paper, Apr. 26, 2001, p. 4.

do not want to pay will not be able to escape their duty because of the strong
enforcement apparatus, and that noncustodial parents who cannot afford to pay will
be offered services that may improve their financial ability to pay as well as their
willingness to pay.
The reader should note that this new more forgiving attitude toward
noncustodial parents has brought with it a wariness among custodial parents. Some
mothers contend that an emphasis on the importance of fathers may lead to
undervaluing single-parent families maintained by mothers — that services for
fathers may be at the expense of services for mothers — and that the “pro-
fatherhood” discourse might give fathers’ rights groups additional leverage in
challenging child support, child custody, and visitation arrangements.
Although noncustodial parents often find themselves at loggerheads with
custodial parents and the CSE system with respect to paternity and child support, the
situation is usually more complicated than deadbeat dad vs. dependent mom.
Sometimes a noncustodial parent is really not the father and sometimes noncustodial
parents who are trying to meet their financial obligation to their children have been
burdened with a child support order that is too high. In these situations, some
maintain that legal services providers should do more to help alleviate the problem.
Supporters of this approach maintain that providing legal services to noncustodial
parents may result in child support payments becoming a more reliable source of
income for custodial parents because noncustodial parents would have had greater
access to the legal system and be more satisfied that “they had their day in court” and
thereby be more amenable to fulfilling their child support obligations.
The LSC is a private, non-profit, federally funded corporation that was
established by Congress in 1974. Part of the LSC’s mission is to provide high quality
legal assistance to those who otherwise would be unable to afford adequate legal
representation and to assist in improving opportunities for such persons. The LSC
is funded through congressional appropriations. The LSC does not provide legal
services directly, but rather it provides grants to independent local legal services
programs selected through a competitive process. The primary responsibility of the
LSC is to manage and oversee the congressionally appropriated federal funds that it
distributes in the form of grants to local legal services providers that in turn provide
civil legal assistance to low-income clients in the 50 states, the District of Columbia,
and five U.S. territories. In FY2004, the LSC distributed $316.6 million of its $335.3
million appropriation in the form of grants to 143 local legal services programs. The
remaining funds were allocated for management and administration, information
technology, and its Office of the Inspector General.
LSC funding accounts for about half of all funding in the United States for civil
legal services for the poor. In 2004, there were approximately 45 million persons
who were potentially eligible for LSC-funded services,² but according to LSC

² Legal services provided by LSC funds are available only in civil matters to individuals
with incomes less than or equal to 125% of the federal poverty guidelines. In 2004, 125%
of the federal poverty guidelines amounted to $11,638 for a family size of one, $15,613 for
(continued...)

surveys only about 20% of those eligible for and in need of services actually received
services. Although low-income noncustodial parents who owe child support are
among the persons eligible for LSC-funded services, they aren’t among the groups
that have traditionally been helped by legal services programs and therefore may have
a hard time accessing services that are already in short supply.
Child Support Issues Faced by
Noncustodial Parents
The Child Support Enforcement (CSE) program (Title IV-D of the Social
Security Act) was enacted in January 1975 (P.L. 93-647). The CSE program is a
federal/state program that promotes self-sufficiency of families in which one of the
biological parents is living outside of the home by ensuring that noncustodial parents
meet their financial responsibility to their children. The CSE program provides seven
major services on behalf of children: (1) parent location, (2) paternity establishment,
(3) establishment of child support orders, (4) review and modification of child
support orders, (5) collection of child support payments, (6) distribution of child
support payments, and (7) establishment and enforcement of medical child support.
All 50 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands
operate CSE programs and are entitled to federal matching funds. While the federal
government plays an important role in setting program standards and policy,
evaluating state performance, and providing technical assistance and training, states
are responsible for administering the CSE program (directly or through local CSE
agencies and family or domestic courts).
Given that the main purpose of the CSE program is to act in the best interest of
the child to obtain any financial support that a child is due, it usually is the case that
the state and local government along with the custodial parent are in an adversarial
relationship with the noncustodial parent. In many instances the CSE agency collects
owed child support via income withholding and no problems occur. In other cases,
especially cases in which the parents were never married, paternity and a child
support order must be established before the CSE agency can obtain child support on
behalf of the custodial parent. In such cases, paternity may be contested and the
financial ability of the noncustodial parent to pay a specific amount of child support
may be questioned.
This section discusses some of the problems that noncustodial parents maintain
that they encounter; namely: (1) false allegations of fatherhood, (2) child support
obligations that are unfair and unreasonable, (3) high arrearages that are financially
beyond their capability to pay, (4) incarceration because of unreasonable child
support demands, (5) loss of the means to their livelihood (e.g., driver’s license,
professional license, passport) because they fall behind in meeting their child support

² (...continued)
a family size of two, $19,588 for a family size of three, and $23,563 for a family size of four
(higher amounts are allowed for persons living in Alaska and Hawaii). For a comprehensive
listing of the 2004 federal poverty guidelines for the LSC (for all family sizes), see 45
C.F.R. Appendix A to Part 1611, p. 397 (Oct. 1, 2004 edition).

obligation, (6) poor relationships with their children, and (7) tenuous connection to
their families and with their community after serving time in jail or prison.
Paternity Issues
Some noncustodial fathers and alleged fathers contend that the paternity
establishment process in recent years has focused on efficiency, at the expense of the
father’s right to due process and his right to representation. They argue that in some
instances alleged fathers are not fully informed about the consequences of voluntarily
acknowledging paternity and do not fully understand the implication of their
statement before they are encouraged to legally acknowledge paternity. Some
noncustodial fathers argue that they were deceived into believing that if they
voluntarily acknowledged paternity, any child support they paid would be helping
their child. They contend that this is not so if the child’s mother is receiving benefits
under the Temporary Assistance for Needy Families (TANF) block grant program
because instead of directly benefitting their children, their child support payments are
used to pay the state back for cash welfare payments that the family is receiving or
received in the past.³
There is widespread agreement by the CSE and legal services communities that
the due-process rights of noncustodial parents should not be overlooked even if doing
so could be interpreted as being in the best interest of the child. Advocates for
noncustodial parents maintain that if there is a question about a child’s paternity it
should be addressed by blood or DNA tests (in some cases even if the parents were
married). Although blood or genetic testing is the standard procedure in contested
paternity cases, many people view such tests as an affront to their integrity and an
indication of a lack of trust. This situation is exacerbated in the case of an older
child. According to some focus group discussants, for many couples, once one of the
partners or alleged partners indicates that a paternity test is needed, any future chance
for cooperative parenting is greatly diminished because of lingering animosity over
the father not stepping forward and meeting his financial responsibility or the mother
not being honest about her fidelity or use of birth control.⁴
Federal law requires states to have procedures which create a rebuttable or, at
the option of the state, conclusive presumption of paternity upon genetic testing
results indicating a threshold probability that the alleged father is the actual father of
the child. Most states have a rebuttable presumption paternity threshold that ranges
from 95%-99.9%. This means that in some states blood test results that indicate a

98% or greater probability of paternity are not rebuttable, which raises the possibility

³ National Women’s Law Center and Center on Fathers, Families, and Public Policy, Family
Ties: Improving Paternity Establishment and Practices and Procedures for Low-Income
Mothers, Fathers, and Children, Nov. 15, 2000.
⁴ Ibid. See also Center for Law and Social Policy, An Ounce of Prevention and a Pound of
Cure: Developing State Policy on the Payment of Child Support Arrear by Low Income
Parents, by Paula Roberts, May 2001. See also Center for Family Policy and Practice,
National Question and Answer Handbook for Noncustodial Parents: A Question and Answer
Resource on Paternity Establishment and Child Support, 2001.

that 2% of the putative fathers tested may be wrongly assigned paternity, and thereby
wrongly burdened with an 18-year financial obligation.
For additional information on issues related to child support and paternity
establishment, see CRS Report RL31467, Paternity Establishment: Child Support
and Beyond.
Child Support Orders Established by Default
If a noncustodial parent gets a notice or a summons about child support or
paternity establishment but does not appear in court at the stipulated date and time,
the court can enter a child support order against the noncustodial parent by default.
If the noncustodial parent does not show up to tell his or her side of the story, the
court can decide that the evidence against that person must be true. Thus, a “no-
show” by the noncustodial parent may result in the establishment of paternity and the
establishment of a child support order, effective whether or not the noncustodial
parent actually has a job or an income source. Further, if the noncustodial parent is
not in court to provide information about his or her job/income, the court may base
the child support order on information provided by the custodial parent or the CSE
agency, even if this information is incorrect. Moreover, if the noncustodial parent
is not in court to present his or her evidence, the court or CSE agency may impute the
noncustodial parent’s income (which may be based on incorrect assumptions).
Some observers argue that the practice of using default judgments (i.e.,
judgments made in the absence of the alleged father) has adversely affected many
putative fathers who claim they are not the father of the child in question but, for
whatever reason, did not show up in court to deny the allegations. Many analysts and
observers maintain that the standards governing default judgments should balance the
rights of the putative father to proper notice and the opportunity to be heard before
paternity is established and a child support order is set, against the right of the child
to obtain a determination of paternity and support (on a timely basis) from a father
who knowingly fails to appear in court.⁵
Child Support Arrearages
Child support arrearages can be accumulated in several ways, depending upon
the guidelines established by the state. The first and most prevalent way is through
nonpayment of child support. For each month that a noncustodial parent fails to meet
the full child support obligation, the unpaid support is added to the amount the
noncustodial parent owes (i.e., this is generally referred to as past-due payments or
arrearages). A second way that arrearages mount occurs because in many states and
localities child support orders remain payable and in effect even when the
noncustodial parent is unemployed or incarcerated; further, in all states, arrearages
remain due (for various time periods) even after the child reaches the age of majority.
Another way that arrearages accumulate occurs because in addition to current

⁵ Urban Institute, Recommendations on TANF Reauthorization from the Strengthening
Fragile Families Initiative, Statement before the U.S. Congress, House Ways and Means
Subcommittee on Human Resources, by Elaine Sorensen, May 3, 2002.

support, some states choose to establish retroactive support when setting new orders.
Depending on the state’s policy, these retroactive arrearages may extend from two
to six years prior, or they may be unlimited in their scope, extending back all the way
to the time of the child’s birth. Arrearages can also be incurred for costs and fees;
particularly attorney fees, court filing fees, fees for blood tests associated with the
determination of paternity, and the costs associated with the child’s birth. Finally,
some states charge interest on arrearages thereby increasing the amount owed.⁶
Arrearages are enforced and pursued, usually through income tax intercepts and
attachment of property to encourage parents to meet their obligations regularly and
on time and to send the message that there are serious consequences for nonpayment
of child support.
In FY2004, $130.3 billion in child support obligations ($28.0 billion in current
support and $102.4 billion in past-due support) was owed to families receiving CSE
services, but only $23.2 billion was paid ($16.5 billion current, $6.7 billion past-due).
This meant that the CSE program only collected 18% of the child support obligations
for which it had responsibility. If current collections are examined separately, the
data indicate that the CSE program collected 59% of all current collections in
FY2004. If collections on past-due support (i.e., arrearages) are examined separately,
the data show that the CSE program collected less than 7% of arrearage payments in
FY2004. In other words, the total amount of arrearages reported in FY2004 for all
previous fiscal years was $102.4 billion; but only $6.7 billion was collected in
FY2004. Although only a relatively small percentage of arrearage payments were
collected in FY2004, about 60% of obligors continued to make payments on their
child support arrearages.
The CSE FY2003 Preliminary Data report states:
In 1999, 53% of the child support cases had arrearages owed. In 2003, the
proportion was up to 68%. We obtained collections in 60% of these cases, so we
know that child support professionals are working hard on them and that obligors
are trying to work on their debts. But we collected an average of $600 per
arrearage case, while the average amount of arrears per arrearage case is $9,000.
So, even though we’re collecting significant amounts of arrears, we don’t seem⁷
to be making a dent in the problem, and the overall debt continues to grow.
In many cases, arrearages are quite high and often deter noncustodial parents
from paying any child support. In fact, when noncustodial parents perceive that the
system is unfair or that the debt is too great to be overcome, the likelihood that they
will pay any support decreases. (For additional information on child support

⁶ National Women’s Law Center and Center on Fathers, Families, and Public Policy, Dollars
and Sense: Improving the Determination of Child Support Obligations for Low-Income
Mothers, Fathers, and Children, Aug. 19, 2002.
⁷ U.S. Department of Health and Human Services, Administration for Children and Families,
Office of Child Support Enforcement, Child Support Enforcement FY2003 Preliminary Data
Report, June 2004, at [http://www.acf.dhhs.gov/programs/cse/pubs/2004/reports/
preliminary_data/].

arrearages, see CRS Report RL31167, Child Support Enforcement and Low-Income
Fathers: Arrearages, Current Support, and Compliance.)
Modification of Child Support Orders
Many noncustodial parents believe that if they fall behind in their child support
payments at a time when they are legitimately unable to make the payments, the
amount they owe can later be reduced or discounted by the court when an explanation
for nonpayment is given. However, this is not the case. If the noncustodial parent
waits to explain his or her changed financial circumstances, the court will not be able
to retroactively reduce the back payments (i.e., arrearages) that the noncustodial
parent owes.⁸
Under the CSE program, states are given significant latitude regarding
modifications and reviews of child support orders. Federal law requires that states
give both parents the opportunity to request a review of their child support order at
least once every three years, and states are required to notify the parents of this right.
States can also request reviews for modification or shorten the time period between
reviews, but they are not required to review orders on a regular basis.⁹
In order to prevent child support arrearages, especially for noncustodial parents
who are unemployed or in jail, advocates have recommended that child support
modification laws be changed so that they are more sensitive to periods of
incarceration, unemployment, or injury/illness during which the noncustodial parent’s
ability to pay child support decreases.
Issues Related to Custody and Visitation
There is near unanimous agreement among federal and state policymakers that
denial of visitation rights should not be considered a reason for stopping child
support payments. Historically, Congress has treated visitation and child support as
legally separate issues, with only child support enforcement activities under the
purview of the federal government. However, in recent years, Congress has
moderated its position against using federal CSE funds to promote enforcement of
visitation rights.
Many noncustodial parents argue that it is unfair to look at the child support
issue only from the viewpoint of the custodial parent. Traditionally, they argue,
courts have sided with mothers in awarding custody, and have paid insufficient
attention to enforcing visitation rights of fathers. As a result, they say, mothers have

⁸ Section 466(a)(9) of the Social Security Act (P.L. 99-509), referred to as the Bradley
Amendment, prohibits the retroactive modification of child support arrearages. Congress
passed the “Bradley Amendment” in 1986 because it maintained that allowing courts to
retroactively reduce child support arrearage payments negatively impacted custodial parents
and their children.
⁹ According to Section 466(a)(10) of the Social Security Act, states must allow either parent
to request a review every three years. States may create a shorter cycle for review, if they
so choose, but orders cannot be modified for retroactive support.

had the rewards and obligations connected with rearing children, while fathers have
sometimes had no share in the rewards, but have the continuing obligation to pay
support. To be fair, they argue, federal laws and procedures should be reformed not
only with respect to enforcement of the child support obligation, but also with respect
to visitation and custody rights.
Some advocates of increasing parental responsibility argue that it is now time
for the federal government to focus more attention on the “non-financial” benefits
associated with preserving the connection between noncustodial parents and their
children. Many policymakers and analysts maintain that a distinction must be made
between men who are “dead broke” and those who are “deadbeats.” They argue that
the federal government should help dead broke noncustodial parents meet both their
financial and emotional obligations to their children and vigorously enforce CSE
laws against deadbeat parents.¹⁰
Criminal Nonsupport Laws versus Civil Enforcement
of Child Support
All states have laws that enable them to bring charges of criminal nonsupport
or civil or criminal contempt of court against noncustodial parents who fail to pay
child support. The crime of nonsupport has been on the books in most states for¹¹
many years. There are two schools of thought with regard to criminal nonsupport
laws: One view holds that criminal nonsupport should be used as a last resort, only
after civil remedies fail. The other school of thought maintains that nonpayment of
child support is a serious offense often with dire consequences for the custodial
parent and child; thus criminal nonsupport laws should be used whenever
appropriate. The use of arrests in criminal nonsupport cases and the outcome of
those arrests varies widely by jurisdiction, making it difficult to document the
magnitude of the practice.¹²
Civil contempt charges are made when a noncustodial parent does not comply
with a judge’s order to pay child support. Payment of the child support debt results
in compliance with the order, and freedom from jail. Although the time spent in jail
for civil contempt is particularly hard to track, it represents a significant, if not
routine, means by which low-income noncustodial parents land in jail.¹³
For noncustodial parents who miss several days of low-pay work in jobs where
they can be easily replaced by an employer, the consequences of even a short time in

¹⁰ National Conference of State Legislatures, Broke But Not Deadbeat — Reconnecting Low-
Income Fathers and Children, by Dana Reichert, July 1999. See also U.S. Congress,
Hearing before the House Ways and Means Subcommittee on Human Resources,^th
Fatherhood Legislation, Statement of (then) Chairman Nancy Johnson, 106 Cong., Serial

106-30, Oct. 5, 1999, pp. 4-6.

¹¹ State Criminal Nonsupport, Child Support Prosecutors’ Bulletin, vol. 2, Au g. 1993.
¹² Center for Family Policy and Practice, The Effect of Child Support and Criminal Justice
Systems on Low-Income Noncustodial Parents, by Rebecca May, June 2004.
¹³ Ibid.

jail can be devastating. Needless to say for noncustodial parents who serve longer
sentences based on a criminal conviction of nonpayment of child support, the
consequences of a criminal record can often be very far-reaching. (See Issues
Related to Incarcerated and Newly Released Noncustodial Parents below.)
It also should be noted that with the enactment of the Child Support Recovery
Act of 1992 (P.L. 102-521), nonsupport is now also a federal crime. Building on the

1992 legislation, P.L. 105-187, the Deadbeat Parents Punishment Act of 1998,

established two new federal criminal offenses (subject to a two-year maximum prison
term) with respect to noncustodial parents who repeatedly fail to financially support
children who reside with custodial parents in another state or who flee across state
lines to avoid supporting them.
Issues Related to Incarcerated and Newly Released
Noncustodial Parents
According to a 2003 study by the Center on Law and Social Policy (CLASP)
and Community Legal Services, Inc. of Philadelphia,¹⁴ about 1.5 million children
have parents who are currently incarcerated and more than 10 million children in the
United States have parents who were imprisoned at some point in the children’s
lives. The study stated that approximately 400,000 mothers and fathers finish serving
prison or jail sentences each year and return home to try to reestablish family ties.
Most of these ex-offender parents lived with or had regular contact with their
children before going to prison. The study indicates that about 25% of inmates have
open child support cases. Incarcerated noncustodial parents generally owe between
$225 to $313 per month in child support; and on average they go into prison owing
about $10,000 in child support arrearages and leave prison owing more then $23,000
in arrearage payments.¹⁵ More than half of these arrearages are owed to the state to
repay welfare costs.
Ex-offenders re-entering communities face a host of problems, such as
employment barriers stemming from their criminal records (sometimes for many
years after completing their jail time or prison sentences), denial of federally
subsidized housing because of criminal records, denial of federal grants and student
loans because of a conviction for possession or sale of controlled substances (even
if the conviction occurred when the person was a minor), and denial of welfare
benefits if the person has a criminal record. Also, unrealistically high child support
orders or arrearages may discourage ex-offenders from finding a regular job
vulnerable to income withholding, tempting them to find jobs in the underground
economy and thereby lessening their chances of successfully establishing ties with
their families and communities. (In some cases, incarceration is considered
“voluntary unemployment,” which does not justify reduction of the child support
order, thereby resulting in high arrearages.) Moreover, in some cases, dissolution of

¹⁴ Center on Law and Social Policy (CLASP) and Community Legal Services, Inc. of
Philadelphia, Every Door Closed: Fact Sheet Series, Sept. 29, 2003.
¹⁵ See also American Public Human Services Association (APHSA), “Incarcerated Parents
and Child Support — A Conversation With Jessica Pearson and Ester Griswold,” Policy and
Practice, Dec. 2002.

parental rights results from criminal convictions (even those unrelated to the parent’s
ability to care for the child). According to a report by the Center for Family Policy
and Practice,¹⁶ a felony conviction or incarceration was grounds for termination of
parental rights in 42 states, and “failure to maintain contact” was grounds for
termination of parental rights in 36 states. Finally, in the case of immigrants with
children who are U.S. citizens, criminal convictions may result in deportation of the
immigrant parent.¹⁷
President Bush in his 2004 State of the Union Address announced a new plan
to bring local and faith-based groups together with federal agencies to help recently
released prisoners make a successful transition back to society — reducing the
chance that they would be arrested again. This four-year, $300 million initiative
would have provided transitional housing, basic job training, and mentoring.¹⁸
Although this proposal has not yet been authorized, there is a federal program that
provides mentoring services for children of prisoners.¹⁹
Legal Services and Noncustodial Parents
Low-income noncustodial parents who owe child support have very few places
to turn for assistance or support. However, one potential source of aid for
noncustodial parents who owe child support is legal services.
As mentioned earlier, the Legal Services Corporation (LSC) is a private,
non-profit, federally funded corporation established in 1974 by Congress. Part of the
LSC’s mission is to provide high quality legal assistance to those who otherwise
would be unable to afford adequate legal representation and to assist in improving
opportunities for such persons.
The LSC-funded programs do not handle criminal cases, nor do they accept
fee-generating cases that private attorneys are willing to accept on a contingency
basis. In addition, in 1996 a series of new limitations were placed upon activities in
which LSC-funded programs may engage on behalf of their clients, even with
non-LSC funds. Among them are prohibitions on class actions, challenges to welfare
reform, collection of attorneys’ fees, rule making, lobbying, litigation on behalf of
prisoners, representation in drug-related public housing evictions, and representation
of certain categories of aliens.

¹⁶ Center for Family Policy and Practice, The Effect of Child Support and Criminal Justice
Systems on Low-Income Noncustodial Parents, by Rebecca May, June 2004.
¹⁷ Ibid.
¹⁸ State of the Union Address by President George W. Bush, Jan. 20, 2004.
¹⁹ An earlier proposal of this Administration, the Mentoring Children of Prisoners program,
began operating in 2003. In FY2005, the program, which is administered by the Department
of Health and Human Services, Administration for Children and Families, provided $49.6
million to 233 public and private grantees to provide mentoring activities to children and
youth (ages 4 to 15) whose parents were incarcerated.

The legal services delivery system is based on several principles: local
priorities, national accountability, competition for grants, and a strong public-private
partnership. Local programs are independent entities, governed by Boards of
Directors drawn from the local bar and client community. All legal services
programs must comply with laws enacted by Congress and the implementing
regulations promulgated by the LSC.
LSC funding accounts for about half of all funding in the United States for civil
legal services for the poor.²⁰ The LSC does not provide legal services directly, but
rather it provides grants to independent local legal services programs selected
through a competitive process. In FY2004, the LSC distributed $316.6 million of its
$335.3 million appropriation in the form of grants to 143 local legal services
programs. The remaining funds were allocated for management and administration
($13.2 million), information technology ($2.9 million), and the LSC Office of the
Inspector General ($2.6 million).
In FY2004, there were approximately 45 million persons who were potentially
eligible for LSC-funded services. Data from the LSC suggest that only about 20%
of persons eligible for LSC-funded services actually had access to those services
when they needed them (based on geographic boundaries, service areas, funding,
local priorities, etc.).²¹ According to the LSC’s 2003-2004 Annual Report:
Despite LSC’s current congressional support, the unmet legal needs of America’s
poor remain staggering. To qualify for LSC-funded assistance, an individual’s
annual income cannot exceed $11,638; a family of four’s cannot exceed $23,563.
Yet current federal funding is clearly inadequate to serve the civil legal needs of
the more than 45.2 million poor Americans eligible for LSC-funded legal
assistance. Millions of eligible clients are forestalled from pursuing justice every
year. Still millions more — whose incomes are just above the federal poverty
threshold but who nonetheless cannot afford adequate legal representation — are²²

effectively denied access to the U.S. civil justice system as well.
²⁰ According to the LSC: in FY2004, LSC grantees leveraged federal funds to raise $346
million annually in other government and private revenue to help support their activities.
In addition, LSC-funded programs promote pro bono service from private attorneys. See
[ h t t p : / / www.l s c . go v/ pr e s s r / p r _ f a c t .ht m]
²¹ According to the LSC, the last national survey on the legal needs of low and moderate
income Americans was conducted by the American Bar Association in 1994. That study
found that about 80% of the civil legal needs of poor Americans are unmet. Several state
studies were conducted after 2000 and reported similar findings. As part of its Justice Gap
initiative, the LSC is collecting data from its legal services providers on the number of
potential, eligible clients that legal services providers turn away because of insufficient
resources. The LSC expects to receive data from the legal services providers in mid- 2005.
See Legal Services Corporation, Board of Directors, LSC — America’s Partner for Equal
Justice, Semiannual Report to the Congress for the period October 1, 2004-March 31, 2005,
May 31, 2005, pp. 10-11.
²² Legal Services Corporation, 2003-2004 Annual Report, p. 18. See [http://www.lsc.gov/
annualreport/04120101.pdf].

LSC grantees close about 1 million cases annually in addition to handling another 4
million legal service “matters” (such as helping self-represented (i.e., pro se) litigants
obtain the information they need to pursue their lawsuit, disseminating legal services
materials in communities, referring clients to appropriate services, providing
mediation assistance, staffing courthouse help desks, etc.).
During 2004, legal services attorneys closed 901,067 cases. Family issues such
as child support, divorce, separation, and domestic violence were the substance of
about 40% of cases handled by legal services offices; housing issues, including
eviction cases, homeownership problems, and public housing assistance comprised
about 25% of cases; income maintenance issues, including benefit claims for veterans
and senior citizens, and Medicaid and Social Security disability claims represented
another 15% of cases; and consumer, finance (including bankruptcy and debt relief
assistance), and individual rights issues comprised about 20% of cases. Most of the
cases handled by legal services providers are resolved through advice and referral.
Only about 14% of cases were resolved in court, primarily because they involved
family law issues (e.g., protective orders, child support, etc.) in which court action
was required by state law.
Local Priorities
As noted above, the LSC does not provide legal services directly. Rather, it
funds local legal services providers, which are referred to by the LSC as “grantees.”
Grantees may include non-profit organizations that have as a purpose the provision
of legal assistance to eligible clients, private attorneys, groups of private attorneys or
law firms, state or local governments, and certain sub-state regional planning and
coordination agencies. Each local legal services program is headed by its own board
of directors, of whom about 60% are lawyers admitted to a state bar and one-third are
eligible clients. Each local program must spend an amount equal to at least 12.5%
of its basic grant to encourage participation by private attorneys in the delivery of
legal services to low-income clients. Local programs establish their own eligibility
criteria, which may not exceed 125% of the federal poverty guidelines. Local
programs hire staff, contract with local attorneys, and develop pro bono programs for
the direct delivery of legal assistance to eligible clients. These local programs
provide legal assistance to individuals based on locally determined priorities that
meet local community conditions and needs.
Thus, to a certain extent, it is up to noncustodial parents to advocate on their
own behalf and to make the communities in which they live aware of the problems
that they face with regard to countering unjustified allegations of paternity, obtaining
fair child support orders, meeting their child support obligations, getting child
supports orders modified when they have a change in financial circumstances,
seeking custody or visitation rights, and re-establishing family and community ties.
With only an estimated 20% of eligible recipients receiving legal services (when they
need such services), low-income noncustodial parents must compete to be included
as customers in a program that does not have the resources to serve all who are
eligible for its services.

Outreach
Legal assistance is generally advisable in matters as serious and complex as
paternity establishment and child support. The outcome of such cases may result in
significant redistribution of income from the noncustodial parent to the custodial
parent and child for many years. However, most low-income noncustodial parents
cannot afford to hire an attorney to help deal with these complicated matters.
For millions of Americans, legal services represent their only way to access the
justice system. Legal services’ clients are very diverse, encompassing all races,
ethnic groups, and ages. They include families receiving public assistance, the
working poor, veterans, family farmers, persons with disabilities, victims of domestic
violence, and victims of natural disasters. Many of these persons were formerly
middle class, and became poor because of age, unemployment, illness, or the breakup
of a family. LSC-funded programs are intended to provide individuals with the legal
information they need to help themselves and instruct clients on both their rights and
responsibilities under the law. LSC’s help is intended to assist families to maintain
their incomes, homes, health benefits, and ties to their children and their
communities.²³ According to the LSC, about 70% of their clients are women, most
with children, and another 10% are senior citizens.²⁴
Legal services providers have the ability to help noncustodial parents in a
number of ways. They can provide information on the benefits and responsibilities
of fatherhood before an alleged father voluntarily acknowledges paternity. They can
counsel alleged fathers to contest paternity if the man does not believe that the child
is his. They can warn noncustodial parents of the negative consequences that often
result from default judgments. They can advise noncustodial parents of the benefits
of appearing in court at the appointed date and time to present their side of the story
in paternity and child support cases. They can represent noncustodial parents in
court, presenting evidence that counters the awarding of unreasonably high child
support orders. They can disseminate information encouraging noncustodial parents
to seek a modification of the child support order if their financial circumstances
change because of a loss of a job, illness/disability, jail or prison sentence, or
additional dependents. They can represent such persons in the modification hearing.
They can advocate on their client’s behalf to get driver’s licenses, professional
licenses, or passports reinstated. They can advise noncustodial parents of their rights
regarding child custody and visitation. They can petition the court for custody or
visitation rights on the noncustodial parent’s behalf. They can refer noncustodial
parents to appropriate resources to help them meet their emotional and financial
responsibilities to their children. They can help noncustodial parents get arrest or
conviction records expunged.
The LSC has invested about $3 million over the last couple of years from its
information technology budget to provide that every state has a comprehensive legal
services internet website where clients can access important legal materials. Other

²³ Legal Services Corporation, Fact Sheet. See [http://www.lsc.gov/pressr/pr_fact.htm]
²⁴ Legal Services Corporation, 2003-2004 Annual Report, p. 8. See [http://www.lsc.gov/
annualreport/04120101.pdf]

information technology grants have supported the creation of websites specifically
designed to assist self-represented litigants by offering downloadable self-help
materials, referrals to legal and social services providers, and other useful links.²⁵
Recent efforts on the part of legal services programs to coordinate and improve
client outreach and community legal education provide one way for noncustodial
parents to gain assistance in resolving many of their child support issues. Just as
divorce, paternity issues, child custody, visitation, eviction, etc., are important issues
for mothers who historically have received help from legal services, they also are
pivotal for fathers as well.

²⁵ Ibid., p. 10.