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Trump Leaves Obama's Last-Minute Child Support Rule Alone

The new regulation requires states to help parents in poverty avoid debt and incarceration.

Trump Inauguration
President Donald Trump, right, waves as former President Barack Obama, left, applauds during the Inauguration.
(AP/Carolyn Kaster)
In his final month in office, Barack Obama issued more than 600 so-called "midnight" regulations. President Donald Trump ordered the delay and review for many of them, but at least one is so far unaffected by the new administration: a change in how states collect child support payments from poor and incarcerated parents. 

The new rule, which took effect Jan. 19, calls on states to set realistic child support amounts so that noncustodial parents don't accumulate debt they can't afford and get stuck in a cycle of incarceration.

According to the U.S. Department of Health and Human Services (HHS), states were increasingly imposing payment obligations without regard to parents' financial situations. This trend was contributing to the cycle of incarceration that can plague people in poverty. When parents go to jail -- in many cases, because of their inability to pay child support -- they accumulate debt that awaits them. Once they're released, it may not be long before they're back behind bars if they continue to miss child support payments.

The U.S. Supreme Court has ruled that finding parents in civil contempt and jailing them for nonpayment can be a violation of due process rights if the courts don't inquire first about parents' ability to pay child support.

Despite that, more than a dozen states don't let parents apply for reduced payments while they're locked up. The new rule will change that. States can no longer consider incarceration as voluntary unemployment and must create guidelines for assessing parents' actual ability to pay based on earnings, income and other circumstantial evidence. 

With the new regulation, HHS tried to strike a balance between holding noncustodial parents accountable and recognizing that many parents miss payments because they don't have enough money. According to a 2006 federal study of nine states, 70 percent of late child support payments are owed by parents who make $10,000 or less a year. For these parents, the average child support obligation equals about 83 percent of their reported income, according to the Urban Institute.

Whether the rule will be revoked by the Trump administration or Congress is unclear. Since the U.S. Senate has not confirmed a health and human services secretary, many of the political appointees who might take a position on the rule haven't joined the administration yet. For the time being, the department is moving forward with its implementation.

An earlier draft of the rule did, however, have an influential opponent. House Speaker Paul Ryan introduced legislation to block the rule before it was published, complaining that Obama was using the regulatory process to usurp Congress' policymaking role. But the legislation died in committee, and Ryan's office didn't comment on the final rule.

The National Child Support Enforcement Association issued a statement in support of the rule, describing it as "a culmination of ideas from a diverse and bi-partisan group" and noted that many of its comments on an earlier draft rule "were weighed carefully and addressed." The Obama administration took more than two years from announcing its proposed rule to publishing the final version in December. 

"I think there was a broad awareness that the child support enforcement system was broken," said Rebecca Vallas, a poverty researcher at the left-leaning Center for American Progress. "It made no sense from a family policy standpoint or from a criminal justice system standpoint to be locking up noncustodial parents for their poverty." 

According to the most recent data, the Child Support Program collects more than $32 billion a year on behalf of roughly 16 million children. In 2015, about 65 percent of child support collections were made on time, and about two-thirds of late payments were eventually collected. While the program serves families of all economic backgrounds, it's an especially important source of income for custodial parents in poverty: In 2013, child support payments comprised more than 40 percent of poor custodial parents' total average incomes. 

J.B. Wogan is a Governing staff writer.
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