This issue is currently before the U.S. Supreme Court. The case of Turner v. Price and the South Carolina Department of Social Services
is scheduled for oral argument on March 24th and it involves imprisonment for debt, specifically that arising from child support obligations.
In a nutshell, the issue is whether a state judge can incarcerate someone who can't pay his child support obligation.
There's no doubt that a family court judge can order incarceration for the purpose of enforcing his order of support. That is, short periods of confinement can be ordered to enforce a civil contempt ruling.
The question arises though when a non-custodial parent can't pay. In that case, incarceration plainly is not being used to make him pay, because he can't; it's strictly punitive and supposedly in this country, we don't use prison as punishment for failing to pay a debt. If we did, all those mortgage foreclosures would find the debtors in prison to boot.
obviously isn't before the Supreme Court (Hartford Courant
, 3/15/11). Unfortunately it's before judge Harris Lifshitz of Hartford, Connecticut, and Lifshitz looks so be no friend of fathers. Apparently he's no friend of reason and fair play either.
The case involves one Gerald Frazee, once a highly-paid executive who's since been put out of his job. In fact, he hasn't been employed for about three years. But for years, he paid his child support in full and apparently a California court has ruled that he owes no more.
But Magistrate Lifshitz disagrees, saying that Frazee owes some $167,000 in back child support for his son who has already turned 18. How Lifshitz determined that is anyone's guess, but there it is.
For his part, Frazee would pay whatever he legitimately owes if he could, but he can't. As I said, he's been out of a job for years and swears he's broke. His tax lawyer agrees as does his family lawyer, but Magistrate Lifshitz, seemingly based on no evidence, has ruled that he can pay. And since Frazee doggedly maintains that he can't, Lifshitz jailed him last December.
And there he stayed, not for a couple of weeks or a month, but through February. During that time, a company in Philadelphia wanted to interview him about an executive's position that would have allowed Frazee to pay what Lifshitz says he owes. But of course he was in jail and therefore lost the opportunity. As is so often the case, jail serves no purpose and can
serve no purpose, when the non-custodial dad doesn't have the funds to pay.
Sure enough, Lifshitz's incarceration of Frazee produced no payments, strongly suggesting that the dad is telling the truth. So what did Lifshitz accomplish by jailing Frazee? As far as I can see, nothing except the expenditure of significant public money to keep a man in jail who had no business being there. That, and allowing Lifshitz to feel himself to be a tough guy who doesn't take any guff from a "deadbeat dad."
That of course raises an issue that the U.S. Supreme Court may or may not deal with. As Frazee put it,
"This is such a frustrating thing. The problem is how do you prove you don't have something?''
Good question. It's next to impossible. After all, you can bring in all your bank records only to have the judge ask you where the other accounts are. Tell him you don't have any and he can believe you or not. And if the judge is like Lifshitz, whose decisions on child support incarceration have been ruled "clearly erroneous" before, the chances are he'll choose not to believe you.
And off Dad goes to jail irrespective of his ability to pay.
"The magistrate believes Mr. Frazee is hiding assets,'' Frazee's tax attorney, Richard Convicer, wrote state Rep. Linda Schofield, D-Simsbury, recently. "While such a conclusion is possible, I know of no evidence supporting it.''
"The fact that a citizen can be locked up for nearly two months based on an unsupported suspicion lacking any factual basis is deeply disturbing and a situation which our judicial system should not tolerate," Convicer wrote.
That's true, but "our judicial system" tolerates it all too well. Before a person is put in jail for failure to make child support payments, the court should have and recite evidence that he is able to pay. It's hard for me to grasp that in 2011 I have to write that sentence, but Gerald Frazee's case makes it clear that I do.
Face it, the most abject homeless person may have millions squirreled away in an offshore bank account. However unlikely, that's always a possibility, but how many of them do? Judges like Lifshitz must be required by law to show some evidence of an ability to pay before jailing someone for failing to do so.
Lifshitz's attitude toward Gerald Frazee has a lot to do with a culture in thrall to the misandric notion that noncustodial fathers are "deadbeats," and essentially nothing to do with evidence, fairness, justice or common sense. As long as we insist on the demonstrably false construction of fathers as willfully uncaring about their children, we need laws and courtroom procedures to protect the innocent from rogue judges like this one.
Let's hope the Supreme Court takes its opportunity to give us both.
Thanks to Susan for the heads-up.