In planning PFS, one of the most frequently mentioned frustrations of CSE — for agency staff and judges — is the inability to be certain whether NCPs brought into a review for nonpayment present a support enforcement problem (they have the means but will not pay) or are there because of limited employment opportunities (unemployed or underemployed because of their inability to get and keep a job). With traditional enforcement tools (sanctions or seek-work orders), the judge or agency is forced to choose which type of error to risk: letting NCPs presenting an enforcement problem off the hook or subjecting those with few employment opportunities to sanctions. Judges and agencies traditionally had to resolve this dilemma based on local and state laws and procedures, political pressures, and their own implicit theories about the characteristics and behavior of NCPs.
PFS offers a way for judges and agency staff to avoid this dilemma: assume an NCP’s problem is one of limited opportunity and refer him to the PFS program; if, in fact, he has a job or the ability to get a job easily, the program participation mandate can smoke out this fact. NCPs who are employed will face a decision: report their job to the system and begin paying support or fail to comply with the PFS service participation mandate (because they are busy with work) and be referred back to regular CSE where staff will now have evidence that this case presents an enforcement problem. In essence, the PFS program staff become a monitoring arm of the court, a capacity that court staff have previously not had. Judges and hearing officers value the assurance they receive that someone (the PFS staff) is following up to track the NCPs and prod them into working to meet their support obligation.
While PFS does lessen the complexity and uncertainty of the review, the PFS sites still faced many issues in conducting reviews. This section presents an overview of how the sites assessed the circumstances of NCPs appearing for hearings and describes how staff resolved various problems that arose in conducting the hearings. It then summarizes what local staff discovered about the circumstances of these NCPs.
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A. Review Setting and Procedures
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Typically, the reviews were held in a clean, reasonably well-maintained building, in a courtroom setting. In some buildings, there were metal detectors, armed bailiffs, and other trappings of the justice system reminiscent of criminal hearings. Usually, an area was set aside (either within the courtroom or in a nearby area) for prehearing interviews. In most sites, the reviews were held in an area also used for other types of hearings (most commonly other family law cases) so there were often crowds of people in the building and parents with young children.
Generally, NCPs called to a review were told to appear at the beginning of the morning or afternoon hearing docket. Often many NCPs (and in some cases CPs) would arrive at one time, so there was a sense of frantic activity to prepare the cases for their appearance before the hearing officer (or sometimes a judge). When NCPs arrived, they were logged in and told to fill out information forms about their current residence, employment, and resources. Usually, individuals were then interviewed by a CSE staff member and — if they appeared to be potential PFS referrals — a PFS staff member would seek to learn whether they were eligible for the program.
In most reviews, the judge or hearing officer was willing to allow cases to be heard as staff were ready to present them and did not insist on their appearing in the order listed on the court docket. This allowed CSE and PFS staff time to determine the appropriateness of NCPs for PFS and, in the context of the demonstration, conduct random assignment. (If the PFS research procedures were not part of intake, this potential for a bottleneck would not exist.) One approach was to hear non-public-assistance-related cases first or to give staff the discretion to hold the cases of NCPs who looked appropriate until a final determination was made. Given the usual scarcity of courtroom time and the busy schedule (and status) of hearing officers and judges, staff were aware that PFS procedures would be overridden if they did become a bottleneck. To avoid this, reserve staff were usually available and in some sites the number of staff committed to the intake process was set to be able to cover peak flows of cases. This led to an appearance of overstaffing during other times of the day.
As individual cases were ready for a hearing, they were brought before the hearing officer. Each hearing usually lasted 5 to 15 minutes and the NCP was not represented by counsel. Normally, the hearing began with the hearing officer asking the representative of CSE (either an attorney or other staff person) the facts of the case. This short recitation usually focused on the amount of the order, payments, and arrearages. The hearing officer would then ask the NCP whether this was correct, and in most cases the NCP would not dispute the CSE records.The hearing officer would then ask the NCP about his financial and employment circumstances. At this point, the NCP might inform the court of employment, plead unemployment or insufficient funds to pay support (which do not override his obligation to pay support), or present information about inability to work (disability, medical conditions, recent incarceration).
Typically, the court and CSE staff did not have the means to independently verify information received from NCPs during a hearing. Administrative records on employment (the unemployment insurance wage reporting) were often several months old (though recent reforms requiring reporting of new hires will make them more current), and normal court routines did not allow for confirmation calls to employers.
In certain circumstances, there were reasons why an NCP might falsely report a job when he in fact was not working or not working at the job reported. If the court’s response to a report of employment is to order the CSE agency to issue a wage-withholding order and the court does not require a purge payment and/or jail, then an NCP who wishes to evade child support could fabricate a job and be released with an admonition to keep the CSE agency informed of future job changes, and the CSE staff would be left holding the bag when the job turned out to be invented. Further, if an NCP wished to avoid being referred to PFS because of its participation requirements, he might similarly invent a job to appear ineligible for the program.
In all sites, if a job was reported, court and CSE staff tried to get enough specific information from the NCP on the employer (name, address, phone, supervisor) so they would later be able to issue a wage-withholding order. After recognizing the problem of false reporting, in at least one site staff changed their usual practice and would put a case on hold briefly while they telephoned the reported employer to verify the job.
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B. Circumstances of NCPs Who Appear for Reviews
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Exhibit 8 presents information on a sample of NCPs who were tracked by sites from the point at which they were identified as potential PFS referrals. (The same sample was used in Exhibit 7.) The "percent eligible and appropriate for PFS" represents those tracked in each site who were identified as appropriate for PFS and went through random assignment for selection for referral to the program or to a control group. The NCPs identified as appropriate were linked to a public-assistance case; not currently living with the child for whom support is owed; behind or unable to pay support payments; able to work but without a job; and within any of the age, language, or geographic restrictions that the local program imposed.
As Exhibit 8 shows, the percentage of those appearing who were judged appropriate for PFS varied widely, from over 70 percent in Kent County to about 12 percent in Duval County. Overall, slightly more than one-third of the NCPs who appeared at a review were deemed appropriate for the program.
The remainder of Exhibit 8 shows the reasons why other NCPs were deemed inappropriate by local staff for the PFS program.
Exhibit 8 Disposition of NCPs Who Appeared at Review Hearing, Percent by Site Percent Duval Countya Kent County Los Angeles County Mercer Countyb Montgomery County Early Cohortc Montgomery County Later Cohortd Shelby County Total Eligible and appropriate for referral to PFS 12.4 72.2 41.5 13.6 40.6 43.9 17.3 33.7 Not appropriate for referral to PFS 81.0 27.8 58.5 86.4 59.4 56.1 82.7 65.4 Reasons not appropriateb Employed 36.9 5.6 31.8 31.9 33.3 35.4 48.8 33.5 Purge payment amount set 6.5 5.6 0.1 0.0 0.0 5.1 14.2 1.9 Currently unable to work Disability 6.5 0.0 5.6 5.2 5.5 1.7 1.2 5.2 In jail/prison 4.6 0.0 0.0 2.7 0.0 4.2 0.0 1.2 Living with CP 4.4 0.0 3.8 2.2 0.0 0.0 0.0 2.9 Ineligible for PFS Demonstration under local rules Living outside jurisdiction 7.6 0.0 0.7 19.0 0.0 0.8 0.0 3.5 Too young or too old 1.0 0.0 0.1 7.4 0.0 0.0 0.0 1.0 No required link to AFDC 0.0 0.0 8.4 18.8 0.0 0.0 0.0 6.6 Does not speak English 0.0 0.0 2.0 3.5 0.0 0.0 0.0 1.5 No legal right to work (LA) 0.0 0.0 1.8 0.0 0.0 0.0 0.0 1.0 In pilot phase 15.0 0.0 0.0 0.0 8.7 8.1 0.0 2.9 Othere 4.2 16.7 4.2 41.7 11.0 25.1 2.5 9.0 Missing Information 6.7 0.0 0.0 0.0 0.9 8.1 16.0 0.8 Sample size 526 18 2142 405 345 237 162 3835 SOURCE: MDRC calculations from child support tracking logs.
NOTES : Data for Hampden County are not available due to the way in which PFS intake works there. Most referrals were from paternity hearings, which made it difficult to track potential referrals prior to the hearing.
a In Duval County potential referral logs were collected from January to March 1996. More than one reason may have been recorded in Duval County for not randomly assigning an NCP.
b More than one reason may have been recorded in New Jersey for not randomly assigning an NCP.
c Early cohort data were collected from January to June 1995.
d Late cohort data were collected from January to May 1996.
e As of September 10, 1994, Mercer County is only randomly assigning cases in which the custodial parent is no longer on AFDC, but there is both a state debt and a current child support obligation.
Employment. About one-third of those appearing provided previously unreported information on employment. This ranged from a low of about 6 percent in Kent County (the jurisdiction in PFS that other evidence suggests has the most stringent existing level of CSE) to 49 percent in Shelby County. In Shelby County, a large percentage of the cases called for hearings were those in which the CPs filed a complaint with the CSE agency requesting enforcement action. In these CP-generated cases, the chance that previously unreported employment existed could well be quite high; in fact, it might be what stimulated the CPs to lodge the complaint. The remaining four sites fell within the range of 32 to 37 percent smokeout.
While these reports of employment do not automatically translate into child support payments for the reasons cited above, analysis of payments generated by these NCPs has convinced staff that there is a payoff in increased support from these cases. But these early indications suggest strongly a potential for increased child support payments through the case review process that a PFS-like program stimulates.
Purge payment made at review. About 2 percent of those NCPs appearing at a review made purge payments at the time of the hearing. But these payments occurred primarily in two of the sites (Duval and Shelby counties), where about 7 and 14 percent (respectively) of those appearing made purge payments. Such payments would typically occur only in a formal civil contempt hearing, when the judge or hearing officer had found an NCP in contempt of the court order and sentenced him to jail. Most contempt actions for failure to pay child support are civil contempt. In these procedures, the goal is to force compliance with the court’s order rather than to punish for failure to comply, as would be the case in a criminal contempt action. Thus, in civil contempt actions an NCP has the option of paying a specified amount and being released, and the judge or hearing officer is required to set the purge payment at a level the NCP is capable of paying. In the folklore of the law, the defendant must have "the keys to his cell."
In the remaining sites, purge payments were basically not imposed as part of the hearing process leading to referral to PFS. In several sites (Los Angeles, Montgomery, and Kent counties), a finding of contempt and imposition of purge payments was not within the powers of the staff conducting the initial review of most NCPs considered for PFS because of the form of the review. Consequently, the low overall level of purge payments is not a real indication of how prevalent they might be if a jurisdiction had chosen to hear the cases of potential referrals to PFS in a forum with the power to find NCPs in contempt.
Current inability to work. About 5 percent of those NCPs tracked were disabled to the extent they could not be expected to work and another 1 percent were incarcerated. For both categories, there was thus evidence that the support order should be adjusted downward. The PFS review process typically provided the information needed to make this possible, but such a modification was often not possible with the review.
Living with the custodial parent. At the time of the review, staff learned that about 3 percent of the NCPs appearing were currently living with the CP and the child for whom the order had been issued. This illustrates the dynamism in the family situations of NCPs and CPs, as would be the case in a sample not restricted to low-income households. In these cases, the NCPs should have their order adjusted to reflect these newly discovered living circumstances.
Ineligible for PFS under local program rules. About 15–20 percent of NCPs who appeared at reviews fell outside specific local PFS rules. Especially important were local rules on the required link to a public-assistance case; during part of the demonstration, some sites did not serve NCPs in PFS if there was not a current AFDC case for the CP. Other sites required NCPs to be older than a specified age cutoff, living within reasonable commuting distance of the program service providers, legally able to work in the United States (that is, was a citizen or had the proper immigration status), or able to converse in English to be included in the program.
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