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September 14, 2016
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Meanwhile, the Department of Justice (DOJ) and the Office of Child Support Enforcement (OCSE) have teamed up to try to convince states to provide indigent child support defendants the meager due process rights provided them by the U.S. Supreme Court in Turner v. Rogers. Turner of course ruled that, when taken to court by a custodial parent for child support arrears an indigent non-custodial parent has no right to a state-appointed attorney.

But the justices also ruled that due process requires a hearing to determine whether the failure to pay was intentional or the result of inability to pay. Such is the tissue-thin screen separating regular jails from debtors’ prisons. The reality of child support hearings, as related to us by lawyers representing poor non-custodial parents, is that those “hearings” usually last from two to five minutes, that the judge transparently acts as an advocate for the custodial parent/state, that the burden of proof is on the debtor to demonstrate inability to pay, that debtors are usually poor, uneducated and unable to understand what is required to prove an inability to pay and that in most cases, the result - i.e. jail - is a foregone conclusion.

Needless to say, the justices of the Supreme Court know none of those everyday facts about child support enforcement courts. So their cheerful belief in judges’ ability to process huge caseloads in short amounts of time while also conducting detailed fact-finding hearings is, as a practical matter, at odds with reality.

Still, the DOJ sent out a “Dear Colleague” letter reiterating the requirements of Turner and the OCSE duly encouraged state enforcement officials to comply with its dictates. Here’s part of the OCSE’s communication to states:

“One purpose of the DOJ letter is to address “some of the most common practices that run afoul of the United States Constitution and other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully.”…

The letter states that courts may not incarcerate a person for nonpayment of fees and fines without first conducting an indigency determination and establishing that the failure to pay was willful. In addition, courts must consider alternatives to incarceration for indigent defendants who are unable to pay. 

The letter provides that courts also must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees, and must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections…

The DOJ’s letter pointed out that failure to comply with Turner could subject state officials to liability for civil rights violations under 42 U.S.C. §1983. That’s all well and good, but for the life of me I can’t see who there is to sue. A child support debtor who’s been denied his rights can’t sue the judge who did so due to the judge-made doctrine of judicial immunity. And he can’t sue the state office in charge of enforcing child support judgments because it has no authority to set the terms of whatever hearing decided his fate. Only the judge can do that.

All that said, it’s good to see the DOJ and the OCSE taking Turner seriously. Perhaps fewer dead-broke dads will be jailed.

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