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Should Poor Child Support Non-Payers Have Lawyers Before Jail?

The U.S. Supreme Court has agreed to hear the case of a South Carolina father who argues that, since people held in contempt for non-payment of child support may risk jail time, the poorest should have the right to government-paid attorney. South Carolina and Georgia are two of only five states in the U.S. that don't provide indigent people with free lawyers in child support contempt hearings.

The case was brought by Michael D. Turner, a man who says his disabilities make it difficult to keep up with his child support but was jailed three times for failure to pay it, including a one-year sentence in 2008 for $5,728.76 in unpaid child support.

According to the U.S. Office of Child Support Enforcement, nationwide, non-custodial parents owe more than $70 billion in unpaid child support. Much of that debt is owed in the form of reimbursement for welfare the federal government paid to parents who were owed back child support. In reimbursement cases, 70 percent of the support is owed by people who make less than $10,000 a year.

On any given day in South Carolina, about 1,500 people are in jail for non-payment of child support, according to Libba Patterson, former director of the S.C. Department of Social Services, who filed a brief in support of Turner.

"Ironically, low-income noncustodial parents who lack the ability to pay their child support debts are more likely to face incarceration than are noncustodial parents who have the means to pay child support and refuse to do so," she said in the brief.

"We're putting people in jail, and by the time they get out, they're twice as much in debt," says Derek Enderlin, one of Turner's appellate attorneys.

Arguments For and Against Providing Lawyers for Poor Child Support Defendants

The Sixth Amendment of the U.S. Constitution gives poor criminal defendants the right to a government-paid attorney but, because a child support enforcement hearing is a civil court process, it is not clear that defendants have the same right.

It is worth noting that people having trouble paying because of a change in circumstances, such as a job loss or a new disability, can ask for help in the form of a child support modification or temporary hardship relief. However, it is unclear how many people would know how to do that without an attorney's advice.

The State of South Carolina argues that paying for poor defendants' lawyers is too expensive. Also, it wouldn't be fair, because most of those seeking enforcement also don't have lawyers.

South Carolina also argues that, when a deadbeat parent is jailed for non-payment, he "hold[s] the keys to his cell" -- to get out, all he has to do is pay up.

Turner's supporters say jailing people for non-payment of child support amounts to a modern-day debtors' prison, because judges are more likely to jail poor, unrepresented defendants.

The poorest defendants are the ones most likely to be behind on their payments because they simply can't afford them, Turner's supporters say, and putting them in jail only exacerbates the problem.

The Supreme Court will hear arguments on the case next year, and a ruling is likely to be handed down by the end of June.

Source: The Nerve, "Supreme Court to Hear S.C. Indigent Parent Case," Rick Brundrett, November 16, 2010

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