By Eamonn Keenan
The Office of the Cook County State’s Attorney is one of the largest prosecutorial offices in the country, boasting over 700 attorneys and 1,100 employees. While the bulk of their resources are invested into the Criminal Prosecutions Bureau, which handles the majority of both felony and misdemeanor cases in the county, the office also invests resources into handling non-criminal matters, as it is highly incentivized to do so.
Child support cases, one of the office’s primary non-criminal interests, are managed by the office’s Child Support Enforcement Division. The tasks of the attorneys in this unit include helping parents establish paternity, obtain child support payments, and enforce support orders. It is imperative to note, however, that while these services are directed to assist parents through the judicial process, the state’s attorneys do not provide direct representation for the parents in these cases. Instead, the attorneys represent the Illinois Department of Healthcare and Family Services (HFS).
HFS is an administrative agency with two main functions: providing medical assistance to those who qualify for Medicaid, and making certain that children are being financially supported by both parents. The latter goal is accomplished through HFS’s IV-D program – the namesake being Title IV, Part D of the Social Security Act, which grants states federal dollars to enforce child support orders.
The range of HFS’s services is incredibly vast. They can establish support orders, which legally mandates the distribution of a certain amount of child support payments, even if the non-custodial parent (the one without custody of the child) lives out of state; and enforce orders through a variety of mechanisms. This means that if a parent doesn’t pay child support, HFS can legally impose sanctions – such as suspending one’s driver’s license, or placing a lien on one’s bank account – in an attempt to induce compliance with the support order. If these punishments still fail to generate cooperation with support payments, the parent could face incarceration. All of these services are provided without any cost to the parent enrolled in the IV-D program.
However, because HFS is an administrative entity, there is a fundamental difference between child support orders entered by a judge and those by HFS themselves – the former being referred to as “judicial orders,” and the latter being “administrative orders.” It is not as though one type of support order is better than the other – the only difference between the two orders is the agency that creates them – but since HFS’s services are both effective and free, administrative orders might prove easier for parents to obtain.
Because establishing and enforcing judicial orders occurs outside the administrative process, the scope of HFS’s services is more limited within the judicial system. This is where the State’s Attorney’s Office comes into play. If a parent with an ongoing judicial support case enrolls in the HFS IV-D program, or if HFS decides to refer an administrative support case to the judicial system, HFS can appoint a state’s attorney to work the case. These attorneys can effectively provide the same services as the IV-D program, and similarly do so for free.
With the abundance of resources provided to them by the state and federal government – and their financial accessibility – HFS can be of unprecedented value to custodial parents seeking child support enforcement services. Especially when considering their effectiveness, HFS’s highly accessible model is incredibly unique for a governmental agency, begging the question: Why would they provide all these services for free?
This question can be more easily entertained when considering an additional component. For every support order established where the custodial parent receives certain forms of public aid – like Temporary Assistance to Need Families (TANF) or Medicaid – HFS is entitled to collect a portion of the child support distributions.
For reference, the amount of child support that has been collected and still owed in Illinois is massive. $790 million was collected for child support in 2018; and on top of that, more than $4 billion is currently owed. Interest on past-due support, or arrearage, accrues at a rate of 9% annually, meaning it’s safe to assume HFS is sitting on a plethora of small fortunes.
Although their services are not exclusively made available to custodial parents, the interests of HFS are often aligned with those of the custodial parent in support cases, since both parties share an opportunity for financial gain. In the same vein, when state’s attorneys are selected to work judicial child support cases, they do not directly represent the custodial parent but rather HFS itself.
The resources of the State’s Attorney’s Office combined with the structure of the courtrooms within the Domestic Relations Division of the Cook County Circuit Court, where child support cases are heard, allow state’s attorneys to be incredibly effective in advancing HFS’s interests. Since child support is a civil-law matter, there are no public defenders provided to those who cannot afford an attorney. Because of this, non-custodial parents often represent themselves in these courts pro se (meaning to act as their own attorney in court), and must advocate for themselves in opposition to a much more knowledgeable and resourceful state’s attorney.
Whatever adjustment they seek in their support case, be it a modification of child support payments or contesting an acknowledgement of paternity, pro se litigants must file all motions themselves. Doing so requires a strong understanding of legal language and judicial processes – to be expected of a legal professional, but not of the average non-custodial parent.
In the absence of private attorneys, the presence of state’s attorneys in domestic relations courtrooms radically shifts the nature of the judicial proceedings. The incentives driving the HFS’s interests in these support cases facilitate a drastic imbalance in the capacity of both parties to effectively advocate for themselves. These contentious courtrooms operate on principles that are diametrically opposed to a fair and impartial judicial system; not for protecting children and families, but rather in the interest of protecting the state’s dollar.
*Please contact the law magazine for citations as footnotes could not be added to the blog format.