November 1, 2013 by Robert Franklin, Esq.
The issue is child support and how states enforce payment, or attempt to. The writers, unlike in most of the mainstream news media, are just everyday folks expressing their thoughts on the subject. Interestingly, they hit closer to the mark than most people, including, I would argue, the United States Supreme Court. Here’s their discussion (The Chattanoogan, 10/30/13).
Both writers, Brenda Manghane-Washington and Andrew Peker, grasp something that few others do. It’s a point that never appeared in the Supreme Court’s 2011 opinion in Turner v. Rogers that held that indigent defendants in child support cases aren’t entitled to be represented by a state-paid lawyer if their opponent is the child’s mother and not the state. The well-heeled majority in Turner, lawyers who’ve never seen the inside of a courtroom dedicated to jailing non-custodial parents, engaged in the fantasy that, even without a lawyer, an indigent defendant can still get his day in court as long as “other procedural safeguards” are in effect. What are the “safeguards” the majority imagines?
These include (1) notice to the defendant that his "ability to pay' is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.
Now, the sceptical among us immediately ask, “What is it about those that makes them ‘safeguards?’” In the first place, most defendants who can’t pay know that the ability to pay is what they need to prove. Second, the hearing is his “opportunity… to respond to statements and questions about his financial status. That is, he already gets a hearing, so if that protected him, we wouldn’t have the problem of states incarcerating fathers who can’t pay. Third, it is likely that the form used to “elicit relevant financial information” will provide no more information than he already can without it. It’ll ask what assets he has and maybe where he’s tried to find work lately. The “express finding by the court that the defendant has the ability to pay” will come in the form of a perfunctory statement to that effect.
The learned justices don’t get it. These “hearings” last less than five minutes in most cases. The courts aren’t interested in letting fathers who don’t pay go free. They believe, and sometimes rightly, that, if the man sits in a jail cell, money will appear. What’s often the reality is that, if the money appears, it’s because his friends and relatives don’t want him to sit behind bars, so they scrape the money together themselves. I scarcely need to point out that those people shouldn’t be responsible for supporting a child who’s not theirs, but often enough they are.
So the Court put together a nice list of things states must do to satisfy the requirement of due process of law to non-custodial parents behind on their payments, but curiously, the majority never explained how the items on the list would assist in any way men who don’t have money for a lawyer and are, often as not, uneducated and unable to assist in proving to the court what must be proven in order to keep them on the streets.
The writers in The Chattanoogan bring up an equally important point.
As [child support laws] stand, there is no distinction between a parent who can't pay and a parent who refuses to pay child support.
Good point, although the Supreme Court would dispute it. The Court believes that it’s provided sufficient safeguards for indigent parents unable to pay what they owe. But what it never acknowledged, and what I mentioned here, is that the justices plainly assumed that the parents claiming an inability to pay in fact had the money to do so (NPO, 6/22/11). That’s made clear by the fact that one of their objections to requiring states to provide lawyers to these parents is that doing so would “unduly slow payment.” It’s painfully obvious that, if a man doesn’t have the money to pay, supplying him a lawyer would do no such thing.
And would it be too much to ask of the majority that they take notice of their own assumptions? After all, the whole argument that providing an attorney would "unduly slow payment" of child support assumes that the father is not indigent and therefore must pay. It is astonishing to say the least that the learned justices apparently can't grasp the possibility of a man's being actually indigent, unable to pay and thus not ordered to pay.
Treating fathers who are unable to pay the same as those who have the money but refuse to send it, is precisely what courts do now and what the Supreme Court said is A-OK. It brings to mind the old Anatole France remark that “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.” In the case of non-custodial parents, the law affords the wealthy as well as the poor one the same “safeguards,” which of course are no safeguards at all. Meanwhile the father who can pay hires a lawyer; the one who can’t goes to jail. ‘Twas ever thus.
The Chattanoogan writers get it. That’s all the more noteworthy because Manghane-Washington is a single mother who recounts her struggles when the father of her children was unable to meet his child support obligations. When even a person in her position understands the scandal of the child support system, you know it’s in need of change.
As she points out, incarcerating a non-custodial father, even if he can pay, is far from a sensible solution. That’s because he can’t very well earn money while sitting in a jail cell, but there’s more to it than just that.
By incarcerating non-custodial parents who do not have the means to pay nothing is accomplished, the children still go without. Struggling communities continue to deteriorate, and now there's an added burden of having a parent with a criminal record that can possibly later affect the child or children even more so in a negative way later in life. Upon release, the non-custodial parent is still without a job and now, with a criminal record, it will be even more difficult to find one that pays a livable wage.
That’s something that’s often overlooked. It’s not just the time the dad spends in jail, but the lasting effects that has on his ability to find a job once he gets out.
In fact, Manghane-Washington knows a fair amount about the realities of child support courts that the learned justices of the Supreme Court obviously don’t.
Child support laws, as they presently operate, have become a modern day debtor's prison. As the non-custodial parent in many states aren't offered the benefit of legal representation, and without the benefit of looking at each case individually and evaluating the persons ability to pay.
In a case in Floyd County Georgia in 2011, Miller (along with five other plaintiffs) filed a class action lawsuit which in part stated: "Plaintiffs are indigent parents who have been jailed without counsel for being too poor to fulfill their court-ordered child support obligations. Some of the Plaintiffs have serious physical disabilities. Others have spent months looking for work, only to find none. All are destitute, but all have been or will likely be incarcerated." Pursuant to civil contempt orders that condition their release on payment of enormous “purge fees.” Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait in common besides their poverty: they went to jail without ever talking to an attorney. Not one plaintiff had an appointed attorney to explain to a court that, through no fault of his own, he had no ability to pay. Not one had an appointed attorney.
Randy Miller, a 39-year-old Iraqi war vet, who was originally sentenced to three months in prison for violating a court order to pay child support, is one of six individuals who filed the lawsuit. The judge who presided over the original case the sent him to prison for three months didn't bother to take into account Miller's financial situation, or the fact he'd fallen behind in support payments due having been out of work, nor the fact that he'd only recently gone back to work (similar case here in Chattanooga recently).
That’s the reality of child support hearings for indigent fathers. They last a few minutes and judges don’t want to hear that he can’t pay, that he’s disabled, that he’s been evicted from his residence, that he’s looked unsuccessfully for work. When non-custodial parents pay child support, the federal government pays the state. When they don’t, it doesn’t. That’s the impetus for the draconian laws that imprison penniless fathers. It’s another thing the justices never mentioned in their learned disquisition on child support enforcement. Their precious “safeguards” won’t change that one bit.
Meanwhile, Andrew Peker, a former police officer, has some ideas I’ve expressed before.
I also have another issue with child support. I wish there was some regulation on how child support money is spent. I can't tell you how many times I see a kid in week old, unwashed pajama pants while mom is dressed to kill with a $300 hair cut. I love the WIC program. It's money that can only be spent on certain things (milk, juice, eggs, cheese etc.). I think a mother should be held responsible for how she spends her incoming child support money. Maybe some sort of coupon system, or debit card that is only good for clothes, school products, etc.
It’s one of the main complaints non-custodial fathers have. He’s under threat of incarceration every minute he’s behind on his payments, which supposedly is because “the money is for the child.” But of course the money doesn’t go to the child, it goes to the mother. It goes straight into her bank account and can be used for anything she wants. If it’s another pair of $400 shoes for her, so be it, and there’s not a state agency on the planet that will tell her “no.” So, as Officer Peker and countless others have suggested, why not make child support in the form of a debit card that can be used for certain purchases and not others? As he points out, it’s done with other governmental programs involving mothers and children, why not this one?
The assumption behind all the crazy rules regarding child support is that fathers who don’t pay are just “deadbeats” who really have the money but just don’t care about their kids. Of course there are such fathers, but the great majority aren’t, as countless studies of the matter show. So it’s no surprise that treating all fathers like the small minority of the worst fathers yields results that are at once horrifyingly harsh and mostly ineffective.
Don’t believe me? The Office of Child Support Enforcement reported that, as of the end of 2011, total child support arrearages came to over $111 billion.
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