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Practice of Jailing Parents Who Owe Child Support Raises Questions, Concerns
Statistics from fiscal year 2009-2010 indicate that parents living in the San Antonio, Texas area who fail to pay child support run a greater risk – five times greater – of being jailed than deadbeat parents in other large Texas counties. The same statistics show that this practice does not significantly increase the amount of child support arrears collected by the courts.
Bexar County has a system for collecting overdue child support that consists of two special child support courts run by associate judges who are hired by elected district court judges. Associate Judge James Rausch admits to having a strict approach to enforcing child support, and blames the increasing number of parents failing to pay their child support obligations on society in general.
“The intact family is disappearing,” he said. “There are good fathers out there, but the numbers are going in the wrong direction. This court takes a very firm, tough approach to fathers and mothers who don’t pay child support. I feel very comfortable and confident we’re handling it the right way.” Rausch serves on the National Judicial Child Support Task Force.
But the “right way” is exacerbating already serious overcrowding in Bexar County’s jail system and costing county taxpayers around $2.7 million a year – the cost of imprisoning deadbeat parents, calculated at $60 per day of incarceration.
According to data compiled by the Texas Attorney General’s Office, Bexar County had 107,360 open cases involving overdue child support in 2009. The county locked up 1,013 of those deadbeat parents – more than the number incarcerated by Dallas, Tarrant, Harris and Travis counties combined – and collected $262 million in child support owed.
By contrast, Dallas County had 111,628 open cases, jailed 160 deadbeat parents and collected $264 million in overdue child support. Harris County had 181,628 open cases, jailed 161 deadbeat parents and collected $470 million in child support arrears.
So why does Bexar County spend millions of tax dollars to lock up parents delinquent on child support when other counties are just as successful without such excessive incarceration?
“We’re tough – very tough,” said Rausch. “My bedrock philosophy is, if you’re going to bring a child into the world, you have to support that child. The court system is the only entity that can enforce that. If you place significance on a parent’s obligation to support the child, I don’t see where there can be any other approach.”
But other Texas counties approach incarcerating deadbeat parents differently, without relying on so much jail time.
“I guess it’s a carrot-stick approach,” stated Dallas County child support court judge George Collins. “When you can’t seem to encourage them anymore, [then] you lock them up.”
Lisa Dossmann worked for the Texas Attorney General’s child support office in Dallas County before moving to Bexar County a decade ago and eventually going into private practice. She was initially shocked at the willingness of Bexar County judges to jail deadbeat parents.
“I was stunned,” said Dossmann. “In Dallas, they gave them a lot more time to come up with the money.” Nonetheless, she supports Bexar County’s system.
“I think it’s a fair approach,” Dossmann stated. “If the client comes up with some kind of lump sum, even if it’s a low amount, the judge isn’t going to incarcerate them.”
Of course this ignores the fact that, especially in difficult economic times, many people are struggling to support themselves and may simply be unable to pay child support. In those cases, jailing the parent may coerce other family members into paying the child support owed, but is that really the proper approach to getting a parent to act responsibly? And in addition to fueling the overcrowding problem in the county’s jail system, what effect does incarceration have on the parent?
“It doesn’t add up,” said Bexar County Judge Nelson Wolff, pointing out that a jailed deadbeat parent is unable to work or seek employment. “It’s counterproductive to me, and it just doesn’t make a lot of sense. Obviously, all of the other counties have come to the same conclusion except for us.... You’re putting them in with the criminal element.... Jail should be for the protection of the public.”
But district judges, not the county judge, hire the child support court judges, so Wolff cannot change the practice. Senior state district judge David Peeples oversees the child support courts in Bexar County, and believes the prospect of going to jail is a positive influence.
“You need the possibility of going to jail hanging in the background” to get parents to pay child support, especially in light of Bexar County’s large, low-income population, according to Peeples. He admitted that he knew Bexar County incarcerated a larger percentage of its deadbeat parents, but didn’t realize to what extent.
Bexar County child support court judge Delia Carian challenged whether the Attorney General’s statistics were correct. “I’ve got to believe they’re just counting it different,” said Carian, saying she knew that she and Judge Rausch were tough, but didn’t believe that such a tough approach was unusual.
The Texas Attorney General’s Office said it found no discrepancies in the reporting methods of the various counties in regard to child support cases.
Rausch noted that most deadbeat parents only stay in jail a few days and that the most hopeless cases are released after a few weeks at most. Then they are brought back to court a few months later to see if the jail stay changed their attitude. However, during two days in June 2010, Rausch released 48 parents who had been in jail for failing to pay child support. Only five had paid the amount demanded by the court.
Can a 10% success rate justify incarcerating so many child support debtors? Or is this just another case of being tough instead of smart in the use of incarceration? Those are questions that other jurisdictions may want to consider, too. Such as Georgia.
“In this country, we don’t put people in jail just because they’re poor,” said Sarah Geraghty, an attorney with the Atlanta-based Southern Center for Human Rights, in reference to hundreds of parents serving jail time in Georgia for failure to pay child support. More accurately, she meant that we shouldn’t put people in jail just because they’re poor – including those unable to pay child support – but we do. [See, e.g.: PLN, May 2010, p.40; April 2010, p. 8, see also p. 26 of this issue].
“There are a lot of kids out there with parents who just don’t pay, and for every dollar they’re not paying someone else has to pay,” said former Georgia Supreme Court chief justice Leah Ward Sears. She echoed Geraghty’s concerns, though, noting that “We don’t believe in debtor’s prisons in this country, and that’s what we’re doing here in some cases.”
While some parents can – and do – pay their court-ordered child support to avoid jail time, others can’t – and therefore don’t – and end up serving time as a result. “The people we see in jail are not wealthy ‘deadbeat’ dads,” Geraghty observed. “They are often working people who have lost jobs and become totally indigent.”
The issue of jailing deadbeat parents recently reached the U.S. Supreme Court, which heard oral arguments in Turner v. Rogers, Docket No. 10-10, on March 23, 2011. One of the questions before the Court is whether an indigent defendant has a right to appointed counsel during a civil contempt hearing that can result in imprisonment. The Supreme Court will consider whether civil contempt, which uses incarceration to enforce compliance with court orders, is equivalent to the punitive incarceration imposed for criminal contempt.
In Turner v. Rogers, a South Carolina court found Michael D. Turner in civil contempt for failure to pay about $6,000 in back child support. He appeared at a show cause hearing but was not represented by an attorney; he said he could not pay his child support due to unemployment, incarceration, substance abuse and a back injury. The trial court found him in contempt and he spent a year in jail.
South Carolina’s Supreme Court affirmed on appeal, finding that Turner was not entitled to counsel in a civil contempt case, and rejecting his Sixth Amendment and due process challenges. Five states, including South Carolina and Georgia, do not provide representation to defendants in child support cases who may face jail time.
A decision by the U.S. Supreme Court is pending. If the Court finds that parents must be afforded counsel when they face civil contempt that may result in incarceration, the additional expense of providing attorneys to deadbeat parents may make trial-level courts reconsider routinely jailing child support debtors.
Regardless of the Supreme Court’s decision, changes are needed to ensure that people who can’t pay their child support obligations are not incarcerated simply because they’re poor. After all, how can parents work, find a job or otherwise generate income to pay the child support they owe if they are sitting in a jail cell?
Sources: San Antonio Express-News, Atlanta Journal-Constitution, www.fentonslaw.com, National Child Support Enforcement Association, Rome News-Tribune
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