CFFPP

Brief of Center for Family Policy and Practice as Amicus Curiae to the US Supreme Court in Support of Petitioner

Date: January 11, 2011
Author(s): Tonya Brito

SUMMARY OF ARGUMENT

Petitioner Michael Turner’s experience is not an anomaly. Across the United States, destitute, noncustodial parents are incarcerated for failing to meet child support obligations they have no means to pay. This is despite the fact that child support law and policy is targeted elsewhere—at so-called “deadbeat dads” who have the ability to pay but choose not to do so.

Whatever their effectiveness in securing payments from noncustodial parents with the means to pay, the inflexible application of child support collection and enforcement measures has resulted in a disproportionate and destructive impact on low and no-income noncustodial parents and their families. These measures are designed to ensure that child support payments are “automatic and inescapable”—no matter the circumstance. However, the vast majority of child support owed in the United States is owed by noncustodial parents who live in poverty. These parents lack the means to pay their child support debt, yet they are subject to the full panoply of enforcement measures, including “civil” incarceration for nonpayment of support.

Low-income noncustodial parents who lack the ability to pay their child support debts in full are more likely to face incarceration than are noncustodial parents who have the means to pay child support and refuse to do so. This is because more conventional and less severe enforcement measures (such as wage garnishment) are effective in securing support from those with the means to pay.

The end result is that jails across the United States house large numbers of low- and no-income parents who have been incarcerated (largely through civil contempt processes) for nonpayment of child support. For example, in South Carolina, where Michael Turner was incarcerated, surveys suggest that thirteen to sixteen percent of the county jail population in South Carolina is made up of child support obligors. Recognition of a right to counsel in these circumstances would at least enable many low income and no-income child support obligors to effectively assert their defense, such as an inability to comply, in order to avoid incarceration.

Finally, recognizing a right to counsel for indigent noncustodial parents in civil contempt proceedings that could result in incarceration will not undermine the child support enforcement system. The appointment of counsel in such circumstances appropriately recognizes the punitive nature of incarceration when the defendant lacks the ability to pay his or her full support obligations. There is also growing recognition that counsel in such cases can help prevent unjustified incarcerations that actually undermine the goals of the child support system by preventing noncustodial parents from earning income immediately as well as damaging their long-term employment prospects upon release.