Prison for Indigent Parents Owing Child Support to Be Heard by the Supreme Court

The realities of child support in a bottomed-out economy are finally becoming news.  Some of that is due to the lawsuit out of South Carolina that’s currently before the U.S. Supreme Court.  Oral arguments are set for March in the Turner case that raises the issues of an indigent parent’s right to an attorney in contempt cases and the state’s power to jail someone for debt who hasn’t the financial resources to pay it.

This article is the latest to explore those issues (Atlanta Journal Constitution, 1/24/11).  It’s worth noting that no one in the Georgia child support bureaucracy, no judge, no attorney challenges the assertion that Georgia jails non-custodial parents who are unable to pay their child support.  And one, former Chief Justice of the Georgia Supreme Court, Leah Ward Sears affirmatively admits that it does.

But it is illegal to incarcerate someone who has no ability to pay, she added. “We don’t believe in debtor’s prisons in this country, and that’s what we’re doing here in some cases.”

Indeed, the entire concept that a parent with the money to pay a child support debt would choose to go to jail rather than pay strains credulity.  But time and again, those defending the current system cite parents who, when faced with jail, came up with the money required to pay off their debt.

True, there are those who require the threat of jail before they’ll pay what they owe.  But the 500 + parents in Georgia jails for child support arrearages obviously aren’t those people.  I’ll say it again.  In New Jersey, the latest sweep of parents behind on child support grossed the state less than two cents on the dollar, strongly suggesting that these people can’t pay.

If a person is capable of supporting his or her children and is willfully choosing to be irresponsible, I don’t have a problem with him or her being punished, including jail, if necessary.  But the system, as it’s currently set up, makes it entirely too difficult for parents to prove that they can’t pay.  Worse, it makes it next to impossible for them to prove a change in circumstances sufficient to warrant a downward modification of support.

From the book and public statements of a long-term employee of the Michigan child support enforcement bureaucracy, we’ve seen how the system is aimed at avoiding downward modifications whenever possible.  That’s in part because states receive federal money for every dollar of arrearages collected.  So why make it easy to decrease the amount owed?

The insider in the Michigan bureaucracy pointed out that money – i.e. the higher the support level the better regardless of ability to pay – is what the system is all about.  That brings in the federal largesse.  So it’s no surprise to hear Georgia state officials complaining that providing attorney’s to indigent parents with child support arrearages could drain the state’s treasury.

Seth Harp, who chairs the Georgia Child Support Guidelines Commission, said a U.S. Supreme Court ruling requiring lawyers for indigent parents “could devastate our system.”

That smells of patent nonsense.  The majority of states do provide indigent parents attorneys at state expense.  The article linked to says that North Carolina paid out a total of $3 million last year for that reason.  So I don’t believe for an instant that providing attorney’s would break the bank in Georgia or South Carolina.

But if it would, maybe the state could choose some easy ways of dispensing with attorneys in the whole process.  If state officials can’t figure those things out, they can ask me.  Or they can read this blog.

For a long time now I’ve been arguing for summary processes for modifying support orders based on changed circumstances.  I’ve said those should consist of special masters who handle only that type of case.  There should be easy-to-understand procedures so parents could represent themselves.  Courts should publish information about what evidence the special master needs to see in order to grant a modification.

But if providing attorneys to indigent parents is so onerous to the state, there’s a still easier and cheaper way to deal with the problem – stop jailing them.  After all, it’s only the threat of jail that necessitates provision of a lawyer in the first place.  If Georgia law were changed to remove jail as punishment for parents who are unable to pay, the whole problem would go away.  What a concept.

Into the bargain, I’d encourage states to establish just what indigency means.  The article again mentions war veteran Randy Miller who supported his child very nicely for several years, but then lost his job.  He continued to put his child first and made his payments until he literally ran out of money.  He now has no assets of any kind including a bank account with 39 cents in it.

The state’s response to his nightmare?  It made it worse by incarcerating him while making his child’s life not a whit better.

The point is that no parent should have to do what Randy Miller had to do – exhaust all of his resources because a court couldn’t manage to modify his support level to reflect the reality of his earnings.  In short, non-custodial parents should be allowed some minimal level of security, dignity and wellbeing below which they would not be required to sink due to child support obligations.

Do children want their fathers or mothers living on the street and eating out of dumpsters?  I doubt it.  And if they don’t, why does the State of Georgia?

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