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Facing jail time, deadbeat parents seek out lawyers

Posted March 22, 2011, at 8:50 p.m.
Last modified March 22, 2011, at 9:08 p.m.

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Should parents delinquent on child support payments be entitled to a lawyer at the state’s expense?

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COLUMBIA, S.C. — A South Carolina father who was jailed repeatedly after insisting he couldn’t make child support payments of about $50 a week is asking the U.S. Supreme Court to end five states’ practice of locking up delinquent parents without providing them with a lawyer.

In a case that will be argued before the high court Wednesday, Michael Turner contends that poor people who are facing time behind bars for missing payments have a constitutional right to an attorney at taxpayer expense. Florida, Maine, New Hampshire and Ohio are the other states where deadbeat parents are not automatically given a lawyer in such cases.

By at least one estimate, hundreds of people a year in those states do time for not paying child support — a practice some advocates say penalizes both parent and child.

“It’s a heinous situation. Jail just becomes a revolving door. We’re locking up the poor,” said Michael McCormick, executive director for the American Coalition for Fathers and Children. “Child support lockups are debtors’ prisons.”

In Maine, jailing a parent for not paying child support is rare, according to Jerry Joy, director of the Department of Health and Human Services’ Division of Support Enforcement and Recovery. He said only a handful of parents are jailed each year on civil contempt charges arising from nonpayment of court-ordered child support.

“It really is a last resort,” said Joy, whose division collected about $108 million in outstanding child support payments last year. “Someone would almost have to flaunt their disregard for child support obligations before the judge would decide they have no other choice but to lock them up.”

Instead, indigent parents most often are ordered to find work so they can begin earning money — and paying their debt, Joy said.

As is the case in South Carolina, failing to pay child support in Maine is an act of civil contempt, not a criminal charge for which the state would have to provide legal representation to a defendant.

In its ruling against Tucker, the South Carolina Supreme Court noted that the civil nature of the offense did not require that state to provide counsel. The court also ruled that a delinquent dad also holds “the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time” by paying at least some of what is owed.

Opponents say that providing lawyers would prove costly and would clog up an already cumbersome legal process and that deadbeats already control their own destinies: If they pay, they go free.

Turner, who has worked various jobs in auto repair and construction, claims chronic unemployment prevented him from making payments, landing him in jail three times over the past two years — once for a year, another time for 90 days. The 34-year-old father said he believes he could have brokered a compromise if he had had an attorney.

The American Civil Liberties Union and other advocacy groups are backing him.

“Without a lawyer, the rest of your rights are almost meaningless,” said attorney Derek Enderlin, who encountered Turner in jail while meeting with a client. “You don’t know how to challenge the procedures, you don’t know how to present evidence, you don’t know how to show the court what’s actually happened.”

Zachary Heiden, an attorney with the Maine Civil Liberties Union, has also been following the case. He said he doesn’t buy the argument that the state is absolved from providing legal counsel just because the charge is categorized as civil and not criminal.

“Regardless of the label that the court stuck on a proceeding, if somebody’s facing imprisonment they should have legal representation,” said Heiden, noting that the few cases that result in incarceration each year shouldn’t prove a financial burden to the state. “If the state is obligated, we’re not talking about a lot of lawyers here.”

Heiden said, depending on the outcome of the South Carolina case, there could be a move to change Maine law to provide defense counsel to parents facing civil contempt charges.

Thirteen states have a filed a brief asking the high court to side with South Carolina. They argue that the Constitution’s Sixth Amendment right to counsel applies only to criminal cases, and that a ruling in Turner’s favor quickly could expand to require lawyers for poor people in a number of other civil proceedings, such as child custody hearings — a costly prospect at a time of big budget deficits.

Judges often use jail as a last resort in child-support cases. A survey by a University of South Carolina law professor found nearly 1,100 of the 8,200 inmates in 21 county jails in South Carolina on one day in 2009 were locked up for not paying child support. Sometimes jail time amounts to only a few hours until a relative or friend can provide enough money to satisfy a judge.

The total amount owed in child support in the U.S. in fiscal year 2009 rose more than $2 billion from the year before to $108 billion, while the amount actually collected fell for the first time since 1975, according to the federal Office of Child Support Enforcement. Some advocates attribute those trends to the recession.

Delinquent parents get little sympathy from Tammy McArthur. The 43-year-old single mother from Newport News, Va., received only about two years of $60-a-week payments while raising her two children. She said the youngsters’ father never faced jail time because authorities struggled to find him. She said she wouldn’t have minded if he had ended up behind bars.

“I would like to be the one to close the door,” McArthur said.

James McLaren, a family law attorney in South Carolina and vice president of the American Academy of Matrimonial Lawyers, said judges hear hundreds, if not thousands, of child-support cases a year, and “if you were to involve lawyers in that process, you would basically shut down the legal system.”

That hasn’t been the case in New York. For decades, the state has offered lawyers to poor people facing jail for not paying child support. In New York, 39 percent of parents who owe back child support paid nothing in fiscal year 2009, compared with nearly 47 percent in South Carolina. The national average is 37 percent, according to the Office of Child Support Enforcement.

BDN staff writer Jeff Tuttle contributed to this report.

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