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January 8th, 2012 by Robert Franklin, Esq.
A Georgia court has approved class action status to a lawsuit seeking to force the state to provide attorneys for indigent parents in child support cases.  Prior to the ruling, there were five plaintiffs; Judge Jerry Baxter’s order opens the door for thousands of other indigent parents to join the case.  Read about it here (Atlanta Journal Constitution, 1/3/12).

The lawsuit was brought by Sarah Geraghty of the Southern Center for Human Rights, which specializes in cases involving incarcerated people.   It comes in the wake of a United States Supreme Court decision last year holding that an indigent South Carolina man didn’t have the right to an attorney in his hearing for failure to pay child support, even though he was unable to pay.

In that case, Justice Stephen Breyer’s majority opinion held that the Due Process Clause of the Fourteenth Amendment doesn’t require states to appoint counsel for indigent parents in such cases. The Atlanta Journal Constitution explains:

In June, the U.S. Supreme Court ruled that a South Carolina man jailed for failing to pay child support was not entitled to have a lawyer appointed to represent him. In that case, the child’s mother was not represented by a state attorney and the state’s social services agency was not a party in the case. The high court noted it was not deciding whether counsel should be provided when state social services agencies are involved and represented by lawyers.

The State of Georgia has indicated it will appeal Judge Baxter’s ruling on class certification to the state Supreme Court.

As of October, Baxter noted, about 845 parents were incarcerated in Georgia for child-support debt in cases filed by lawyers on behalf of the state Department of Human Services. More than 3,500 parents have been jailed, without legal representation, since the beginning of last year, the order said…

The Supreme Court also said that 70 percent of child-support delinquency cases nationwide involve parents with either no reported income or income of less than $10,000 a year.

Baxter’s ruling cited an affidavit from Oswaldo Vicente, a Gordon County man who is a native of Guatemala with limited understanding of the English language. After losing his job at a carpet mill, Vicente said, he was jailed twice last year after attending hearings in which he was provided neither an interpreter nor a lawyer to represent him and where the state was represented by counsel.

Georgia is one of only six states in the nation that doesn’t provide legal counsel to indigent parents facing prison for contempt of court for failure to pay child support.  The Supreme Court’s South Carolina decision clearly opened the door to more to put budgetary considerations ahead of the due process rights of its citizens.  To date, none has followed the “lead” of states like Georgia and South Carolina.

The notion that states would prefer to jail parents who truly have no resources to pay rather than allowing them the freedom to seek and possibly find gainful employment is nonsensical.  It can’t help children get the support they need and, as the ACLU argued in its brief to the Supreme Court, and serves no coherent public policy.  Still, six states deny counsel to indigent child support obligors, and the U.S. Supreme Court has encouraged others to do the same.

Likewise, the idea that the Fourteenth Amendment that says in so many words that no person shall be deprived of liberty without due process of law, in some way permits states to deny counsel to the poor when they seek to imprison them defies belief, logic and the dictionary definition of words.

As things stand, however, it’s the law of the land.  Perhaps in time, if Sarah Geraghty is successful, it won’t be the law of the State of Georgia.

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