Tuesday, March 22, 2011

Supreme court hears case on jailing dads

The US supreme court is hearing oral argument on Turner v. Rogers tomorrow. It concerns whether a dad has any due process protections if he is going to be jailed for allegedly failing to pay support to the mom.

The case has attracted a dozen amicus briefs, including a couple of anti-father opinions from supposedly conservative politicians.

Texas AG Greg Abbott argues that lawyers will not help dads because they are being jail on such sloppy evidence and procedures anyway:
There are several notable aspects of the rules of procedure in South Carolina’s family courts.10 First, the rules not only permit, but require, courts to admit certain unauthenticated documents and statements into evidence. ... empirical evidence confirms that the child-support civil-contempt proceedings in South Carolina family court differ from the formal, adversarial criminal trials that require appointed counsel. Litigants do not question or cross-examine witnesses; judges handle all the questioning. ...

In the rare cases where lawyers appeared, they performed only tasks that pro se litigants would be equally capable of doing. There is no need for a right to appointed counsel in such simple proceedings.
Senators Demint, Graham, Johanns and Rubio argue just the opposite. They say that lawyers will help the dads so much that the dads will get an unfair advantage:
Indeed, disputes over child support payments perfectly illustrate the danger of extending the right to state-paid counsel to civil contempt proceedings. Inserting the right to counsel into child support disputes on behalf of delinquent parents would put their children and the custodial parents at an extreme disadvantage.
The brief argues that jailing dads has been very effective at squeezing money out of them, so nothing should interfere with that.

The argument is really an argument against any defendant having any rights. The authorities would have any easier time putting drug dealers and murderers in jail also, if they could use unauthenticated documents, disallow cross-examination, and throw suspects in jail without lawyers speaking in their behalf.

Abbott's brief makes this admission about his own state of Texas:
Many States, including Texas, appoint counsel for indigent defendants in civil-contempt proceedings. They have done so either as a matter of legislative grace or as a matter of state constitutional law.
So Texas is arguing that S. Carolina dads should not have rights that Texas dads have.

I am appalled that these politicians can gain votes by coming out in favor of jailing dads without having due process in the family court.


Anonymous said...

I am curious how would you propose encouraging a father to pay child support, if he goes to great lengths to avoid it and his children suffer as a result of his endeavors?

I know of cases where the father abandons his kids, moves away, starts over with a new honey, and amasses thousands of dollars in child support arrearages - and refuses to provide for the children HE fathered with his ex wife. Kids are on welfare while their sperm donor takes trips to the Bahamas and lives like a king. This is shameful!

What about the children's rights?

Anonymous said...

To state that the custodial parent is acting pro se is a falsehood. In 2009 child support enforcement authorities in the state of Florida filed over 59,000 motions for contempt against non-custodial parent who were in arrears. (Amici App. 4a). A custodial parent is not acting on its own if there enforcement agencies are filing motions on their behalf. The true balancing test would come if a determination was made on how many of the contemnors were able to file a motion on their own. It is doubtful that these indigent and often uneducated individuals understand what a motion is and the purpose that they are used for, but the counsel that they are provided with would know these functions.

Zachary Cloud said...

I've been following Turner v. Rogers because of my dedication to protecting indigents' rights and I can totally see the frustration with the double standard Texas seems to suggest—

Yet I completely understand why they argue as they do. And also, why they'll likely persuade the Justices. For Texas and the other states acting as amici, this is all about keeping federal control of how states run their child support systems to a minimum. They want to preserve wide latitude in how they administer programs. And, in truth, that's precisely what the Court is looking to hear these days.

Sad but true, it looks bad for Mr. Turner and indigent defendants in the states that refuse council.