Deadbeats and Turnips

March 23, 2011 6:28 AM

Even if you can't afford child support, a lawyer will not be provided for you. The South Carolina Supreme Court has ruled that parents who are behind on child support can be jailed for up to year without ever having had legal representation, on the basis that violating court orders is a civil offense rather than a criminal one.
posted by Leta (188 comments total)

Yep. That sounds like South Carolina.
posted by T.D. Strange at 6:34 AM on March 23, 2011 [8 favorites]

I have no idea-- in what other instances can you be jailed for a civil offense? I'm guessing I had a tacit assumption that jail time was reserved for, you know, crimes.
posted by kimota at 6:37 AM on March 23, 2011 [4 favorites]

Debtor's prison.
posted by Pogo_Fuzzybutt at 6:38 AM on March 23, 2011 [47 favorites]

They point to statistics showing that, in South Carolina, 13 percent of the county jail population consists of non-paying parents held in civil contempt, and 98 percent of them did not have lawyers.

Throwing someone in jail is a sure fire way for them to get that high-paying job.
posted by a robot made out of meat at 6:40 AM on March 23, 2011 [29 favorites]

And if you're jailed for a year does the child support debt grow? Because last time I checked prisoners don't earn much...
posted by PenDevil at 6:40 AM on March 23, 2011 [9 favorites]

More War on the Poor. Minnesota's GOP is trying to pass a provision that makes it illegal for people to withdraw more than twenty dollars from their TANF allotment, and would effectively make it illegal to carry cash at all. I'm all for busting child support shirkers, but you don't get to throw due process and Constitutional protections because it makes you feel righteous.
posted by Emperor SnooKloze at 6:41 AM on March 23, 2011 [9 favorites]

I think there are a lot of rotten people out there who deliberately deprive their kids of support--to punish the other parent, to keep money for themselves, whatever. That's a horrible thing.

That's still not enough to throw people in jail without letting them consult with someone who actually knows how the law works. Some people are scum. Some people are just poor. Some people are scum *and* poor. Rotten people still deserve to be treated like human beings.
posted by gracedissolved at 6:52 AM on March 23, 2011 [8 favorites]

How about they don't jail the deadbeat parent and give half of the money they save to the non-deadbeat?
posted by unSane at 6:55 AM on March 23, 2011 [59 favorites]

Notice that even NPR, the supposed liberal journalistic bastion, frames this as "deadbeat dads are putting kids on the streets" which I'm sure the legislation does too. If South Carolina really wanted to help these kids, they could, you know, feed them and clothe them and home them (while obviously also pursuing legal recourse against the dads....and possibly helping them as well, depending on the situation).
posted by DU at 6:55 AM on March 23, 2011 [6 favorites]

I hate this garbage. We also take peoples' property away for committing crimes and call it civil, too. Those people don't get lawyers either.
posted by 1adam12 at 6:55 AM on March 23, 2011

Is the reason I'm so angered by this because they're forcing me to sympathize with parents who don't provide for their children? Or because all these people who claim to bleed red, white, and blue have no concerns about pissing on the Constitution? Guess what - I've got enough to go around.

Anyone more knowledgeable than me care to inform us what might happen if this was taken to the US Supreme Court?
posted by MCMikeNamara at 6:59 AM on March 23, 2011 [7 favorites]

for people to withdraw more than twenty dollars from their TANF allotment, and would effectively make it illegal to carry cash at all.

I think that's kind of a stretch, but I haven't actually read about this. Is there more to this than simply limiting the amount ATMs will allow people to withdraw as cash?
posted by floam at 7:01 AM on March 23, 2011

If South Carolina really wanted to help these kids, they could, you know, feed them and clothe them and home them

That would require the evil socialist state taking action to improve a poor person's life. The only legitimate use of state power is to punish criminals or kill terrorists. If a poor person doesn't pay child support, he must be a criminal, and must be punished.
posted by T.D. Strange at 7:02 AM on March 23, 2011 [6 favorites]

How about they don't jail the deadbeat parent and give half of the money they save to the non-deadbeat?

That would be socialism!
posted by Thoughtcrime at 7:04 AM on March 23, 2011 [1 favorite]

How about they don't jail the deadbeat parent and give half of the money they save to the non-deadbeat?

Republicans don't give a shit about your baby once it's born. In fact, they only want it born so their buddies who own private prisons will have an unobstructed revenue stream of profitable government subsidies to build more in 15-20 years. Poor kids on the streets are as bankable as municipal bonds.
posted by any major dude at 7:05 AM on March 23, 2011 [37 favorites]

It's a good thing that putting all these people in jail is free, because I hear that the country is broke.
posted by Slothrup at 7:06 AM on March 23, 2011 [12 favorites]

I think that's kind of a stretch, but I haven't actually read about this. Is there more to this than simply limiting the amount ATMs will allow people to withdraw as cash?

People would get a debit card instead of cash aid. It's what happens in WI, it is kind of a pain in the ass to use, but works pretty well otherwise.
posted by Pogo_Fuzzybutt at 7:07 AM on March 23, 2011

...municipal bonds? er, those are not quite as bankable as you think these days.
posted by nj_subgenius at 7:07 AM on March 23, 2011

(If I make no sense, my understanding of your comment was that they're limiting the currency that can be withdrawn from TANF accounts only, nothing to do with purchases, and that the second point you made was saying that this in effect (maybe with some sort of weird enforcement?) makes holding cash scary/illegal. But maybe that was a completely separate bit of legistation that somehow targets people holding lots of cash? I know I've heard of crazy people advocating that if poor people can't prove where they earned their money, it must be drug money, or whatever. I can't find anything about this on Google News.)
posted by floam at 7:08 AM on March 23, 2011

This is consistent with United States Supreme Court jurisprudence on the subject, jurisprudence which dates back almost a century. The federal courts have pretty much always held that the right to counsel provided by the Sixth Amendment does not apply in civil cases. The Supreme Court has consistently refused to hear cases appealing such decisions, effectively affirming the doctrine that the right to counsel only obtains in the criminal context.

The question here is whether being imprisoned for failure to comply with a civil order activates that right. Thus far, the answer is "No," and while some states, e.g. New Jersey, have decided that it does, that is still a minority position.

The first problem is that by suddenly guaranteeing that defendants have representation, plaintiffs are going to have a much, much harder time in a lot of these cases. As it is, it's pretty difficult for people owed child support to get it, and guaranteeing that the defense has counsel will make it that much harder. We're talking about situations where in the vast majority of cases, the defendant really does owe the money. There aren't facts for a jury to weigh, and the law is pretty simple: if it's your kid, and the kid isn't living with you, you owe child support the vast majority of the time. So if you haven't paid, you owe. End of story. Adding lawyers just makes it more expensive for everyone.

But this isn't really an issue in the wider civil litigation contexts, because plaintiffs' attorneys don't go around suing people where there isn't any potential chance of recovery. I'm currently defending a case--pro bono--where my client has no assets, no extra income, and no insurance. Plaintiff's counsel will probably drop the case, despite the fact that she could potentially win at trial, because if that happened, I'd have my client file for bankruptcy before the ink had dried on the order. Everyone knows this, so there isn't a real burning problem generally speaking.

The second problem here is that if the Supreme Court were to recognize such a right, it would immediately fall on the states to pay for this, which would impose a potentially significant burden on a system which is already almost bankrupt. The states have barely enough money to pay for their public defender programs. How are we going to force them to come up with the money for civil defender programs? It would be a huge boon to the legal profession, as there would suddenly be money to fight cases which would otherwise default or go straight to a verdict.

The defendant here is, in fact, a deadbeat, if by that term we mean "someone who owes but does not pay child support." The facts suggest that this is involuntary, but this doesn't really matter. The best he can hope for is a judicial order lowering his child support payments.

Look, the situation sucks, but I'm not at all convinced that providing counsel for these people is the right solution. That would cause enough other problems that I don't see this going much of anywhere. The real solution might be to stop throwing people in jail for civil offenses, but actual deliberate deadbeats are a big enough problem that I'm not sure we want to do that either. I see clients every week whose ex-spouses or ex-paramours have jobs and refuse to pay their court-ordered child support. I've now seen one person for whom support was ordered for when it shouldn't have been. The plural of anecdote is not data, but the bigger problem really does seem to be people who simply don't want to pay rather than people who legitimately can't.
posted by valkyryn at 7:09 AM on March 23, 2011 [33 favorites]

People would get a debit card instead of cash aid. It's what happens in WI, it is kind of a pain in the ass to use, but works pretty well otherwise.

So that's the only change? They currently do not use EBT for TANF? Here in Oregon they use EBT cards and they can be used in ATM machines to get cash out. Not sure if there's a cash limit but it seems to work fine, people can buy stuff.
posted by floam at 7:10 AM on March 23, 2011

I have no idea-- in what other instances can you be jailed for a civil offense? I'm guessing I had a tacit assumption that jail time was reserved for, you know, crimes.

None that come to mind. This is a kind of civil contempt of court, and it's been long established that courts can order people imprisoned for violating a court order. What's more, they can be imprisoned for as long as the violation continues, which can be indefinite. The Chadwick case is a famous recent example.

Anyone more knowledgeable than me care to inform us what might happen if this was taken to the US Supreme Court?

Nothing, probably. That is, the Court wouldn't hear it, and if it did it would probably affirm, at least in general. Here's what the Court said in the Bagwell case that the South Carolina court was evidently citing:

The paradigmatic coercive, civil contempt sanction, as set forth in Gompers, involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance. Imprisonment for a fixed term similarly is coercive when the contemnor is given the option of earlier release if he complies. In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus carries the keys of his prison in his own pocket.

Of course, this all depends on the alleged deadbeat actually having the resources to pay the child support. I think the real issue here is that the contempt power is being used indiscriminately without a fair hearing as to the defendant's assets and income. Maybe giving such defendants access to counsel would improve their ability to argue that contempt would not be coercive but rather punitive (and thus a criminal sanction). But courts are given pretty wide latitude with the contempt power, and I think the Supreme Court would be unlikely to fashion a special-purpose exception to the usual rule that there is no right to counsel in civil cases.
posted by jedicus at 7:11 AM on March 23, 2011 [3 favorites]

So that's the only change? They currently do not use EBT for TANF? Here in Oregon they use EBT cards and they can be used in ATM machines to get cash out. Not sure if there's a cash limit but it seems to work fine, people can buy stuff.

Admittedly, it's been 6-7 years since I used it, but as I recall, you could not use the cards to get cash. I never tried it, maybe it worked and I just didn't know how. My understanding was that they would not work, though.

I didn't find it particularly onerous.
posted by Pogo_Fuzzybutt at 7:21 AM on March 23, 2011

A public defender office where I've worked does represent people in child support contempt hearings, and I feel like it was a useful service, even if every attorney in the office hated it. Mainly, it was useful as a way of helping clients understand what was happening. The worst thing is to go to jail, and not understand why. Court is an incredibly difficult thing to understand and attorneys help that. I think we at least owe people that before we lock them up.Completely ignoring that incarceration is a terrible way to get poor people to have money.
posted by Bulgaroktonos at 7:23 AM on March 23, 2011 [7 favorites]

California just recently established a right to counsel in civil matters (the "civil Gideon") for certain types of cases, such as in child custody and eviction. It will be interesting to see how that plays out.
posted by Sticherbeast at 7:25 AM on March 23, 2011 [3 favorites]

As a divorced mother who got nothing from my ex-, I'm no fan of deadbeats, but legal representation for someone who may end up in jail for months or more seems only fair. It must cost a lot more to jail someone that to give benefits, but jail sure seems to be popular these days.
posted by theora55 at 7:31 AM on March 23, 2011 [1 favorite]

What's more, they can be imprisoned for as long as the violation continues, which can be indefinite.

And, since a man who's in jail can't earn money to pay child support, he could theoretically stay locked up for life; so his kids would never get any support. What a wonderful system we've designed.
posted by steambadger at 7:32 AM on March 23, 2011 [13 favorites]

My understanding was that they would not work, though.

Obviously, it may vary state-to-state and over time, but it does look like at least here the ATM thing does work and it wasn't a figment of my imagination as I began to worry. Obviously not with food EBT benefits. Looks like there's no limit, but a small fee.

"Some clients choose to use ATMs to access their cash benefits. There is an 85-cent deduction from the client's TANF account for each ATM transaction, plus any bank surcharge."

But, it looks like they don't work as generic ATM cards through the regular networks. It goes on to say that you need to find a machine with a special logo on it and lists participating machines.

Anyways, this seems totally great to me. It's free money and not much less convenient than anyone else buying stuff with plastic. I really can't think of many good reasons that people should be even able to take out their allotment as cash at all, and a $20 limit seems fair enough. The thing is that the money is supposed to be used on necessities, which EBT cards can enforce. You can use the cash on Netflix or pot or a tanning salon. Doesn't seem that it follows that carrying cash is now illegal at all.

Anyhow, this is kinda straying away from the subject of child support...
posted by floam at 7:37 AM on March 23, 2011

Debtor's prison.
And if you're jailed for a year does the child support debt grow? Because last time I checked prisoners don't earn much...

This sounds pretty bad. I doubt it's this bad:

And, since a man who's in jail can't earn money to pay child support, he could theoretically stay locked up for life; so his kids would never get any support. What a wonderful system we've designed.

Still, it does kind of seem like we are creating a society where people will break laws on a daily basis and have little recourse. Much as I disagree with the Heritage Foundation, they do have some provocative data.
posted by willhopkins at 7:39 AM on March 23, 2011

And, since a man who's in jail can't earn money to pay child support, he could theoretically stay locked up for life; so his kids would never get any support. What a wonderful system we've designed.

Well, no. As I mentioned, civil contempt can be indefinite but it must also be coercive. If the contemnor has no assets or income, then obviously he no longer "hold the keys of his prison in his own pocket" and the contempt ceases to be coercive and becomes punitive. At that point it's criminal contempt and lots of things change (e.g. access to counsel, the reasonable doubt standard, etc).

The difficulty in these cases is that many alleged deadbeats may be so poor that contempt would not be coercive, but without an attorney it may be difficult or impossible for them to effectively argue their case.
posted by jedicus at 7:41 AM on March 23, 2011 [5 favorites]

> Still, it does kind of seem like we are creating a society where people will break laws on a daily basis and have little recourse. Much as I disagree with the Heritage Foundation, they do have some provocative data.

Isn't that a point routinely hammered home in the various "don't talk to the police" links mefi has every year or so ? That everyone, EVERYONE, is guilty of something.
posted by k5.user at 7:46 AM on March 23, 2011

Is there more to this than simply limiting the amount ATMs will allow people to withdraw as cash?

No, there's no more to it. The stated goal is to prevent people from withdrawing cash from their TANF account and using it for liquor and cigarettes. If they acquire cash through other legal means, it's not illegal to carry that on their person, at least not due to this legislation. I'm as liberal and distrustful of Republicans as they come, but it's still disgusting how people have willfully misrepresented this bill. Hey liberals: we don't need to make shit up to prove our point. Stop it.
posted by desjardins at 7:56 AM on March 23, 2011 [4 favorites]

The first problem is that by suddenly guaranteeing that defendants have representation, plaintiffs are going to have a much, much harder time in a lot of these cases.

This seems like an argument for improving the laws rather than creating a system where low income people are not able to effectively defend themselves. Or if it's okay for poor people to not have lawyers, why not ban lawyers for the defense altogether, so that the deadbeat dad who makes six figures doesn't have one either? I know personally I'm not going to step foot in a courtroom without at least talking to a lawyer even if it's about a minor issue, let alone something that could possibly put me in jail longer than being convicted most non-felony crimes.

The states have barely enough money to pay for their public defender programs. How are we going to force them to come up with the money for civil defender programs?

Add a new tax on attorney fees and use that money to pay for public defender programs?
posted by burnmp3s at 7:56 AM on March 23, 2011

If you can go to jail for it, it's a criminal offense. I don't really see how anyone can conclude otherwise without being disingenuous.
posted by dortmunder at 8:01 AM on March 23, 2011 [2 favorites]

steambadger: "What's more, they can be imprisoned for as long as the violation continues, which can be indefinite.

And, since a man who's in jail can't earn money to pay child support, he could theoretically stay locked up for life; so his kids would never get any support. What a wonderful system we've designed"

Well, no...in the case in front of the Supremes, what happens is that the father doesn't pay child support, the children and mother went on Public Assistance. To get PA, the mother signs over the right to collect child support to the state...then the state is responsible for collecting the child support.

So, in other words, the mother of the children didn't sue the father, the state did, because the state is providing for his children because the father isn't...it's the state trying to recoup some of the costs of the PA.

That said; it does seem a lot like debtor's prison. But considering how much easier my childhood would have been if my biological father had been faced with the hoosegow and public humiliation...I dunno. Someone on NPR this morning was talking about the difference between "deadbeats" and "turnips"; some people just didn't pay their child support, even though they had the means...those are deadbeats. Some people, they have no resources, suing them is like squeezing blood from a turnip. It's just not gonna happen.

Imprisoning the deadbeats seems ok to me. Imprisoning the turnips seems unfair. But how does an overburdened court system sort everyone out?
posted by dejah420 at 8:04 AM on March 23, 2011

I think there are a lot of rotten people out there who deliberately deprive their kids of support--to punish the other parent, to keep money for themselves, whatever. That's a horrible thing.

Well, here's the thing: in the situation typical of 95%-plus of divorces where kids are involved (at least where I live) is there is a custodial and a non-custodial parent. The court obliges the the non-custodial parent to pay support and the custodial parent to provide access. The non-custodial parent is most commonly the father and the custodial, the mother.

When a non-custodial father is a day late or a dollar short, the media applies the pejorative label "deadbeat dad." When the custodial mother denies access to the children, what does the media call her?

You cannot think of the name because there isn't one. There is a massive double standard that is accepted with a shrug in family law. I have personally known non-custodial fathers who paid their support promptly and fully for years on end while the mothers kept them from communicating with their children. Attempts to enforce access are frequently unsuccessful in family law courts. When this fails, I am sure many non-custodial parents at least give some thought to attempting to force the issue with the only means they see: stopping the flow of money. At which point, they become an easily-characterized villain.

I am astonished that a progressive place like MetaFilter seems to have people who casually endorse this double standard.
posted by ricochet biscuit at 8:06 AM on March 23, 2011 [31 favorites]

Well the idea is that the court system *already did* sort this out when it made the initial determination of support.

If then you don't comply with the court order, and don't pay what the court already decided was fair, then what do you think is going to happen? Or, from another point of view, what should the court be able to do if it makes a monetary judgement for one party, and the other just ignores it?

Does everyone who loses a civil judgement have a right to a lawyer after the fact, because they can simply refuse to pay, which would then trigger the right to a lawyer? That would make a complete mess of things.
posted by cotterpin at 8:10 AM on March 23, 2011 [1 favorite]

Ricochet, I suspect that the dads you describe are not very numerous. Do you have any statistics? I do know that some of them have been very vocal, but one very vocal person does not necessarily speak for thousands.
posted by mareli at 8:11 AM on March 23, 2011 [2 favorites]

California just recently established a right to counsel in civil matters (the "civil Gideon") for certain types of cases, such as in child custody and eviction. It will be interesting to see how that plays out.

Canadian courts have enshrined the right to counsel in certain custody disputes, specifically where the government is attempting to remove a person's children. wikipedia, actual case.

Fundamentally, the argument upheld was that you cannot have a fair hearing when you've got a parent, under serious emotional stress, perhaps unable (intellectually/lack of training) needing to make their case in a complex and adversarial matter. This, tied with the fact that lack of representation does not put the best interests of a child at the forefront (as is required to by Canadian law, and quite possibly treaty obligations), means that government-funded lawyers are required, at a last resort.

Now that's not the same as this situation, but it's an interesting parallel.
posted by Lemurrhea at 8:15 AM on March 23, 2011 [2 favorites]

Still, it does kind of seem like we are creating have created a society where people will break laws on a daily basis and have little recourse.

FTFY. It's been brought up on the blue before that there are literally over 10,000 different laws in the USC alone, which does not include any state, county, or municipal laws in the various localities of the United States and territories. I can say with 99.99% certainty that you have broken the law in one fashion or another today. I know so far that I've probably broken 4 or 5 laws today alone without actually trying or thinking about it. Odds are I've broken 10 more that I wasn't even aware of.
posted by Mister Fabulous at 8:16 AM on March 23, 2011 [2 favorites]

And then there are the laws that you're not allowed to know about.
posted by kimota at 8:18 AM on March 23, 2011

The first problem is that by suddenly guaranteeing that defendants have representation, plaintiffs are going to have a much, much harder time in a lot of these cases.

The same can be said for criminal cases. Prosecutors would have a much easier job if criminal defendants didn't have representation too, but that's not really a good argument for dismantling the PD's office.

The defendant here is, in fact, a deadbeat, if by that term we mean "someone who owes but does not pay child support." The facts suggest that this is involuntary, but this doesn't really matter. The best he can hope for is a judicial order lowering his child support payments.

But how can he effectively get that order without counsel? If someone is dragged into court for simply not paying child support out of spite, he should be forced to pay up or go to jail, but what if circumstances have changed and he can no longer afford the prior support award? I'm some some defendants can do it on their own, but doesn't everyone have a better chance of a positive outcome if the defendant can say: "here's my income; here are my expenses. Here's how they have changed since the initial determination of support was established. Let me set up this payment plan and I'll continue to pay something instead of going to jail for not paying money I don't have?" How does he get a reasonable chance at making that request without a lawyer?

If you can go to jail for it, it's a criminal offense. I don't really see how anyone can conclude otherwise without being disingenuous.

For what it's worth, the civil offense–no right to a lawyer standard is what we use at the federal level to put people in immigration detention and deport them without providing them with a free lawyer.
posted by zachlipton at 8:19 AM on March 23, 2011

Heh. The comments in the South Dakota abortion thread were all "I bet South Dakota has weak child support laws because they hate women so much over there." Damned if you do, damned if you don't, I guess.
posted by nasreddin at 8:27 AM on March 23, 2011

This seems like an argument for improving the laws rather than creating a system where low income people are not able to effectively defend themselves.

Which was kind of my point. I don't think introducing a right to counsel is really what we need here. Rather, I'd be in favor of forcing the courts to reach some kind of finding about the defendant's ability to pay before carting him off to jail. Right now they don't have to do that, and in the absence of such a requirement, judges just won't do it. This wouldn't be the sort of thing one would need an attorney to fight--though it would probably help--and it would give truly impecunious defendants a chance to escape jail.
posted by valkyryn at 8:32 AM on March 23, 2011 [5 favorites]

South Dakota != South Carolina

Maybe South Dakota should just start jailing any woman who seeks out an abortion in that state until she gives birth.

This really isn't a strong child support law they've created in South Carolina. It does nothing to actually support the child. It's all about punishing someone, not about the children. And it's a stupid punishment anyway, because it removes the possibility of achieving the goal that it seeks to further, i.e. takes someone who isn't paying child support and puts them out of a job and therefore without income.
posted by hippybear at 8:40 AM on March 23, 2011 [5 favorites]

Nothing, probably. That is, the Court wouldn't hear it,

The link says they're hearing it today. Nina will probably comment on the hearing tonight or tomorrow.
posted by rtha at 8:40 AM on March 23, 2011 [1 favorite]

OK, I can't get behind incarceration without representation. But I find deadbeat dad status to be intolerable (as is unfair estrangement from the dad's kids). So here's an idea, pulled straight out of my hat, with zero legal vetting. Can't they be put under house arrest, given a Martha Stuart anklet, and allowed to work and go home and nothing else until the balance becomes current? Inconvenience might work wonders - it is probably expensive to enforce though, but maybe less so than jail time.

I haven't read all this thoroughly, but it has to be possible that the non-turnip deadbeat dads have second families to support, so cutting off all income-generating activity is cruel to the children of the second family too.
posted by drowsy at 8:43 AM on March 23, 2011 [3 favorites]

Ricochet, I suspect that the dads you describe are not very numerous. Do you have any statistics? I do know that some of them have been very vocal, but one very vocal person does not necessarily speak for thousands.

I could not tell you about the numbers, because by the very nature of the situation, these things are not newsworthy. However, a moment's Googling suggested that the US Dept. of Health and Human Services found this had happened in some 60% of cases.
posted by ricochet biscuit at 8:47 AM on March 23, 2011

Ricochet, I suspect that the dads you describe are not very numerous. Do you have any statistics? I do know that some of them have been very vocal, but one very vocal person does not necessarily speak for thousands.

I'm going to say that you are quite wrong in that regard. Society views fatherhood as largely optional, and the rights of fathers haven't gotten quite as much attention as their obligations have. There are some good and bad reasons for it, and there it is.

I've met countless men who just gave up trying to deal with the mother - they just pay their support and walk away. If I were the type of person that liked people, I could try to build an organization to help change that. Because it's a big problem.

I've ridden this hobbyhorse around this site for a while. And, truth told, things are much better now than when I had my first experience in Family court 15 years ago.

That said, family law in this country is pretty seriously fucked up in a lot of ways.
posted by Pogo_Fuzzybutt at 8:48 AM on March 23, 2011 [2 favorites]

(On family courts turning a blind eye when a custodial parent refuses a non-custodial parent court-ordered visitations):

I am astonished that a progressive place like MetaFilter seems to have people who casually endorse this double standard.

It's not a double standard, it's a two-wrongs-don't-make-a-right standard. No one here is saying that is fair, only that it does not justify withholding child support when it happens.
posted by DevilsAdvocate at 8:52 AM on March 23, 2011

Interestingly, since I've moved to Washington state, I've encountered several men who are the custodial parent who are having problems getting child support from the mother and who work to withhold visitation rights from her.

It's certainly not something I'd ever encountered before. But it's interesting to see that these problems are more based on the roles the separated parent pair end up playing and not really based on gender.
posted by hippybear at 8:54 AM on March 23, 2011 [2 favorites]

Interestingly, since I've moved to Washington state, I've encountered several men who are the custodial parent who are having problems getting child support from the mother and who work to withhold visitation rights from her.

I think it's more to do with that in order for the dad to get majority placement, the mother is usually a pretty messed up individual to begin with.

Cutting the father out of the child's life is still the base expectation in a break up.
posted by Pogo_Fuzzybutt at 9:06 AM on March 23, 2011 [1 favorite]

I'm going to start here - I am disabled to the point where I cannot earn a living. I meet this definition according to the SSA rules, in that I cannot engage in substantial gainful activity. Period. Means I can't take care of myself.

I am in the middle of this big time. I was homeless and living in a camper when I got my divorce. This followed nearly seven years of having custody of my son with an undiagnosed mental disorder, struggling to keep any kind of job at all, and a roof over our heads. His mom wasn't really interested in him, or having him. She didn't even want to baby sit for him - it was too much of an imposition on her life to do things like pick him up from day care when I couldn't. I gave up my son to his mother (who despite all her faults, is steadily employed, if emotionally distant) with a heavy heart after trying and failing one too many times to succeed in supporting us.

That was nearly 10 years ago. I tried to keep in contact with my son, but the hostility I got from my ex would make me symptomatic for long after the visits, and I had to stop for my own health. I could not call, either, since she always answered the phone, and would proceed to belittle me and dispute the fact that there was anything wrong with me at all. I left the area to escape the ghosts of my failure.

I haven't made a decent living in a long time. I bring in about 250.00 a month doing personal care for others like me, I get a full allotment of food stamps, housing assistance, and OHP (health care). Quite a few people in my circumstances don't get those things. Right now I owe nearly $40,000 in arrears to my ex. She reports her income as being $4,800.00 per month. I usually lose about 60-70 dollars out of each months pay, given to her. That is money I could use for things like food for my service animal, TP, and clothing. I am being constantly badgered to pay up; I have lost my driving privileges, and can't even get a fishing license. I live in a rural area, and so can't get around as most people take for granted. Laws in the state I used to live in make exceptions for people like me, but their enforcement people refuse to follow them, and I cannot afford an attorney to face them down and make them do this. Legal aid there refuses to take cases of anyone in my situation.

If my son was with me, they would probably be helping me now that I have been properly diagnosed. Instead they sanction me to tears, and call me "deadbeat", tell me I don't care whether my son gets what he needs or not. They don't know how I live. They don't care what I've been through, or what I'm going through right now.

This case is about people like me. It's not about people who won't pay, it's about people who can't. Here is a link to an article (warning, PDF) by Elizabeth Patterson, a professor at University of South Carolina School of Law, who was director of that state's department of Social Services. Some of you upthread, especially those beseeching us all to "think about the children", might want to read it. I think about my child every day (he's getting pretty big now, I hear). Every day I have to think about my failure. I see people with their kids, and I remember the first day of school, the parent teacher conferences, the bike rides, the tickle fights. I also remember the day I handed him over to his mom. Makes me sick just thinking about it. At least I have pictures, otherwise it might just seem like I never knew him at all.

Valkyryn, you appear to be a lawyer of some sort. Sounds like you make a little money off this sort of thing. You have what appear to be well thought out arguments why all this seems just fine, and the system should get tough on people like me. But those arguments avoid the question of whether the law was followed by the government, in threatening a disabled person with jail because he can't earn a living and support his son. Or whether indefinite jail does any good for anyone involved, except as a stark example of what can happen if you can't pay and your ex decides you need a comeuppance. They also avoid the question of whether, in jailing said person, the government should have to provide him with an attorney, so that maybe his side of things can be heard, too.

If I'd had an attorney at some point in all this to present my side, it seems pretty clear I wouldn't be facing what I am now. And my son might be with me.
posted by cybrcamper at 9:15 AM on March 23, 2011 [44 favorites]

Dads who refuse to pay support should be punished, but punishments that impede their ability to find or retain a job are counterproductive. In Ontario you can loose your driver's license and have your car impounded:

He finally landed a good job, one that would allow him to make his payments and also included medical benefits. But then the courts caught up with him and, since he’d fallen behind in his payments, stripped him of his license. A valid driver’s license was a condition of his new job, which he then lost. He then fell further behind, and was jailed. The courts told him he could get out once he had a job. He couldn’t get a job until he restored his ability to drive … and he couldn’t do that from jail.

posted by Kabanos at 9:41 AM on March 23, 2011 [4 favorites]

Can't they be put under house arrest, given a Martha Stuart anklet, and allowed to work and go home and nothing else until the balance becomes current?

if the guy was working, they'd be taking money out of his paycheck, so i don't understand why the anklet would be necessary
posted by pyramid termite at 9:43 AM on March 23, 2011

Oh, for pete's sake, some people are talking as though the police come and take you away in the middle of the night and throw you in jail. If you are a deadbeat--even if you are FALSELY accused of being a deadbeat, there's plenty of notice in the system. You have an opportunity to petition the court to lower your support if you are out of work or your hours are cut or your pay is less. If custody changes, you have the opportunity to change support amounts at the same time, too. As for cybrcamper, sounds like you have a very unique case that is in dire need of good legal representation. Perhaps someone on this thread can help you.

But for most folks: It's not brain surgery to figure out that you owe money if your kids don't live with you, even for the poor, uneducated and disenfranchised divorced parents.

If you are a divorced parent, it is up to YOU to keep yourself informed with the ramifications of not paying. Even clerical errors on the part of the court system can be dealt with (because I'm sure your ex will have been screaming at you for non payment long before you are arrested).

Yeah, yeah, I know it's not a perfect system. I'm a divorced parent and I've gone through a lot of it. But there are options if you truly can't afford to pay your share of the support anymore, it just seems like most parents take the lazy path and just stop paying and hope nothing becomes of it. Or they assume they can "catch up" later. Guess what? You'd have a fit if your employer or the state aid folks stopped paying you with no notice and told you "I'll catch you up later."
posted by Kokopuff at 9:44 AM on March 23, 2011 [2 favorites]

If only we had let that state go after the Civil War...it could have been a sovereign nation, without all the support it sucks from those who pay their way via taxes from other states. It could hang out all the Civil War stuff it wants to. It could talk endlessly about the good old days. I am unable to forgive Lincoln and the North for bringing them into the fold.
posted by Postroad at 9:45 AM on March 23, 2011 [1 favorite]

Valkyryn, you appear to be a lawyer of some sort. Sounds like you make a little money off this sort of thing.

valkyryn's day job is in a completely different area of law. Any cases he takes involving alleged deadbeats would be done pro bono.

You have what appear to be well thought out arguments why all this seems just fine, and the system should get tough on people like me.

Actually, he said "I'd be in favor of forcing the courts to reach some kind of finding about the defendant's ability to pay before carting him off to jail. ... it would give truly impecunious defendants a chance to escape jail." So he's on your side there.

those arguments avoid the question of ... whether indefinite jail does any good for anyone involved

Again, he said "The real solution might be to stop throwing people in jail for civil offenses, but actual deliberate deadbeats are a big enough problem that I'm not sure we want to do that either." So he addressed that issue, suggested a solution, but recognized that there is a strong countervailing interest.

Ultimately this is a complex, potentially intractable issue. There are so many competing interests that it's hard to know where to draw the lines and how to best shape the rules. There is sometimes a tension between justice and fairness, and this is an example: making the system more fair for defendants may mean that some plaintiffs are unjustly denied compensation. Likewise, giving plaintiffs more leverage to seek just compensation may mean that sometimes that leverage is misused.
posted by jedicus at 9:45 AM on March 23, 2011 [4 favorites]

I'm just a lowly 3L who does PA/FS work in my clinic. Child support issues come up, although they are incidental to what I specifically do. Drawing from my own experience, I'd say that I have no faith in the government to fairly and accurately calculate ability to pay. I see all kinds of bizarre cases, and I am consistently astonished at how often the government is flat-out wrong - not just a little bit wrong, but utterly, utterly wrong - and they won't budge an inch until they see that the recipient has retained an advocate. It is amazing how often the government will simply ignore recipients who have concrete evidence to support their own claims, and it's all the more amazing when you see how quickly the government preemptively withdraws its own claims when it sees that some random law student has a packet of papers. The fact of the matter is that it is extremely, extremely difficult to conduct legal affairs without an advocate.

The issue of whether a citizen's incarceration is a civil, coercive matter or a criminal, punitive matter is exactly the sort of thing that a lawyer should sort out. It is entirely ridiculous that the state of South Carolina has the ability to lock up citizens who cannot afford counsel. At the very least, there needs to be structured fair hearing so that the alleged deadbeat can present his case.
posted by Sticherbeast at 9:55 AM on March 23, 2011 [9 favorites]

So it sounds like it works like this: if you actually cannot comply with the support order, the contempt penalty becomes criminal and thus imposing it without the requisite protections, including those pertaining to representation, is unconstitutional. But (is this where catch 22 comes in?), how's a person who's unrepresented going to go about showing that the contempt penalty is not coervice when he (or she) is unrepresented and this is an area that even the courts admit they themselves have trouble with?
posted by cheburashka at 9:55 AM on March 23, 2011

For those interested in hearing the oral argument, the Supreme Court website generally posts the transcript of the argument on the day it is argued, and posts a recording of the argument within 48-72 hours (I think). I just checked; Turner v. Rogers isn't there yet, but probably will be in the next 4-5 hours. The argument definitely took place this morning. I won't even try to handicap how the Supremes are going to decide on this, but I will note that the petitioner (dad) is represented by Seth Waxman, who has argued before the Court many, many times, including during his tenure as U.S. Solicitor General, and he is really, really good at it.
posted by bakerina at 9:57 AM on March 23, 2011 [3 favorites]

on the basis that violating court orders is a civil offense rather than a criminal one.

And? I don't see where the government is required to hand you a lawyer for a civil case. Haven't seen a precedent. Note that this involves enforcement matters, where there has either been a judgment based on a settlement or a decision on the merits.

Now, how someone is supposed to pay child support when they're in jail is another reason, sounds like debtors prison to me. But a lawyer provided by the state? Why? The issue has been decided, the problem is non-compliance with a court order.

It just seems like one of the worst things about the internet today is the tendency to SOUND THE ALARM without really knowing the facts and without thinking them through. So a shit-ton of people get on and start engage outrage engines Mr. Sulu, outrage factor 8, without really having done any reading more than the article itself.
posted by Ironmouth at 10:00 AM on March 23, 2011 [2 favorites]

No one here is saying that is fair, only that it does not justify withholding child support when it happens.

Hm, why not? I mean, if I've got custody of a child, and I want money from his mother, and the deal is that she gets to see her child every weekend, and I choose not to comply and to rob her of that — why the hell should I continue to be entitled to her hard earned money?

Obviously, it is not OK for someone to protest a perceived violation by skipping the legal process and not making good on their financial obligations. But I'm curious how things work.

Can someone clarify for me: is it actually true that legally, a custodial parent who keeps a child from the other parent does not lose their monthly payments? Or is it that they do but the courts don't seem to enforce the rules equitably?

If it's the latter, isn't it the case that our framework feels such an act does justify withholding child support when it happens? That doesn't seem unfair to me. I'm just trying to piece this all together.
posted by floam at 10:00 AM on March 23, 2011

I work in a legal services office, and we started doing child support work for non-custodial parents a couple of years ago. We started getting calls from men* whose Social Security Disability (SSD) was being garnished to the tune of 65% a month. These were guys with psych disabilities getting around $750/month, pre-garnishment. This sort of garnishment had been legal for who knows how long, but the sudden increase in calls made us suspect that the SSA system and the state child support enforcement system had gotten linked up somehow (yay technology).

These garnishments were devastating. Clients couldn't pay their co-pays for meds, attempted suicide, couldn't buy food, etc. What happens (in NY) is that child support orders can't be changed retroactively (except in extremely limited cases), so these guys would become unable to work, be found disabled, and not know that they had to go back to court to ask for the order to be changed. They're usually not educated or sophisticated, and they're dealing with serious psych issues and their own poverty. So, tens of thousands of dollars of arrears accumulate, and they have no idea it's happening until one day their $750 check is under $300.

When they finally find out what's going on, they have to deal with an inept bureaucracy and an institutionally hostile court system. The support collection unit (city agency) was supposed to stop these garnishments once they learned they put the person below a certain income, but getting them to actually do it required a lot of effort from us--people with advanced degrees and resources! These guys didn't stand a chance on their own. As for court, support magistrates can be some of the biggest assholes I've ever seen. And the best outcome they can usually hope for is to have the garnishment decreased and the ongoing order decreased. The thousands of dollars of arrears will be there forever, accumulating fees and interest. I had one guy who couldn't get a passport and won't be able to see his dying mother because of this. I have no sympathy for real deadbeat dads, but what I've seen here in NY is enormously fucked up and so sad. I absolutely believe these guys should get lawyers, and I haven't even had to deal with any civil contempt cases. What a horror show that would be.

*We've only had one call from a non-custodial mother, so I'm going to use male pronouns.
posted by Mavri at 10:02 AM on March 23, 2011 [13 favorites]

That's still not enough to throw people in jail without letting them consult with someone who actually knows how the law works. Some people are scum. Some people are just poor. Some people are scum *and* poor. Rotten people still deserve to be treated like human beings.

They are still free to consult with an attorney. But the state doesn't have to pay for it. So far there has not been a decision entitling a person to a free lawyer in a civil case. The question is whether or not this is a civil matter or not.

I'm sure Waxman will argue that a liberty interest is involved and it is therefore criminal. We'll see the result.
posted by Ironmouth at 10:04 AM on March 23, 2011 [2 favorites]

Cost of imprisoning someone in the USA: $18,000 to $33,615 a year.
Average cost of child support: $3,432 a year.

Who's the winner here?
posted by Static Vagabond at 10:06 AM on March 23, 2011 [16 favorites]

Who's the winner here?

The guys who run the prison -- same as it ever was...
posted by mikelieman at 10:08 AM on March 23, 2011 [12 favorites]

floam - the money is supposed to be for the child, who shouldn't be punished because his or her parents are acting like dicks. If Custodial Parent denies visitation to Non-Custodial Parent, NCP still owes support to CP because it's for the kid, not to line CP's pockets.
posted by desjardins at 10:09 AM on March 23, 2011 [3 favorites]

Hm, why not? I mean, if I've got custody of a child, and I want money from his mother, and the deal is that she gets to see her child every weekend, and I choose not to comply and to rob her of that — why the hell should I continue to be entitled to her hard earned money?

Because the money is not for you. It's for the child. The child is entitled to that money no matter what kind of an asshole you are. You're the guardian of the child so the money is entrusted to you irrespective of your lack of cooperation with child visitation.

At least that's my understanding.
posted by ODiV at 10:09 AM on March 23, 2011

if the guy was working, they'd be taking money out of his paycheck, so i don't understand why the anklet would be necessary

The first thing I thought of was "Where are garnishments?" but that wasn't on the table. This topic seems to revolve around that idea that this state wants to punish rather than make the other party whole.

This thread has been useful in terms of presenting a lot of scenarios. I could chip in with cases I've been exposed to where the man worked under the table expressly to prevent paying the ex, so garnishment is not always the way to go.

That brings up another question: Are alimony and child-support always separate charges or do they get combined?
posted by drowsy at 10:16 AM on March 23, 2011

Valkyryn, you appear to be a lawyer of some sort. Sounds like you make a little money off this sort of thing.

jedicus is right: this is completely unrelated to the work I do for the firm. The clients I've seen for support issues are related to my volunteer work at a local legal aid clinic.

Which is kind of the point: almost no one is making money off this, because there isn't any money to be made. If a defendant can afford a lawyer, they can also afford to make the payments, which is a lot less hassle for everyone involved.

jedicus also summed up my response to this issue pretty accurately: this is a problem, but the solution is to change the support laws, not to introduce a new and exceptionally problematic civil right where we don't strictly need one.
posted by valkyryn at 10:17 AM on March 23, 2011 [1 favorite]

Are alimony and child-support always separate charges or do they get combined?

They're completely distinct parts of any divorce decree. It's fairly common for a decree to contain a significant child support payment but no alimony, though the reverse almost never happens. Delinquency on child support is treated with far more seriousness than delinquency in alimony. But alimony is generally only awarded when there's a decent amount of money to go around, in which case both sides probably have lawyers anyway.
posted by valkyryn at 10:20 AM on March 23, 2011 [1 favorite]

the solution is to change the support laws, not to introduce a new and exceptionally problematic civil right where we don't strictly need one.

I for one have the utmost confidence that the state of South Carolina will stand up and do the right thing.
posted by T.D. Strange at 10:22 AM on March 23, 2011

this is a problem, but the solution is to change the support laws, not to introduce a new and exceptionally problematic civil right where we don't strictly need one.

Unless your changes to the support laws make it impossible for someone to go to jail for failure to pay child support, I'm not sure you've devised any kind of a solution. The reason we appoint lawyers in criminal cases is, at the end of the day, not about the complexity of the cases, the likelihood that you might be innocent, or anything other than the fact that you can lose your freedom. This proceedings are exactly like that, you can lose your freedom if things go badly. There is no moral justification for appointing a lawyer in one case, but not the other. Other than arguing based on a technical distinction between "criminal" and "civil" law, there's no difference between a possession of marijuana case where you're looking at jail time and a child support contempt case where you're looking at jail time.

I also think you're dramatically overestimated the problems with enforcing this a civil right. Like I said earlier, I used to work at a Public Defender's office that did child support contempt proceedings. It amounted to the work of one attorney, one day per week, meaning that each attorney in the office had to do it about once a year. That's it. The number of cases per week, was about half of the number of misdemeanors the office handled per day. People hated it, but it wasn't that much work.
posted by Bulgaroktonos at 10:32 AM on March 23, 2011 [4 favorites]

You'd have a fit if your employer or the state aid folks stopped paying you with no notice and told you "I'll catch you up later."

At least in my state, when state aid stops paying you, completely irrespective of whether or not they send notice, the agency does automatically get a taxpayer-funded advocate at the fair hearing.
posted by Sticherbeast at 10:35 AM on March 23, 2011

Unless your changes to the support laws make it impossible for someone to go to jail for failure to pay child support, I'm not sure you've devised any kind of a solution.

There might not be one. I think that we should be able to send people to jail for failure to pay child support. I think as close as we get is the solution I described above, i.e. require the judge to make a finding that the person is able to pay. Spelling out those sort of things in statutes has a marked effect on judicial behavior, though it isn't one that laymen frequently appreciate.

The reason we appoint lawyers in criminal cases is, at the end of the day, not about the complexity of the cases, the likelihood that you might be innocent, or anything other than the fact that you can lose your freedom. This proceedings are exactly like that, you can lose your freedom if things go badly. There is no moral justification for appointing a lawyer in one case, but not the other.

See, this really isn't true, nor is it the primary justification for the right to counsel.There are two main differences between child support hearings and criminal cases. First, in criminal cases, the charges are being brought by the state, not by a private party. This represents a truly significant power imbalance, and it's one of the things the Framers were primarily concerned about when they drafted the Sixth Amendment. Sure, the prosecutor technically takes the case, but it isn't initiated by the prosecutor: someone has to come to him with a complaint first.

Second, criminal charges can be brought for almost anything, and it really is pretty easy for prosecutors to get the wrong guy. Sometimes this can be for political reasons completely unrelated to the instant defender (e.g. the prosecutor is up for election and needs a big conviction and doesn't much care who it is), or it can be deliberately politically motivated (e.g. what some people think about Julian Assange's legal troubles in Sweden). But child support payments require the existence of a court order requiring said payments. These orders can't be created by a prosecutor or other executive officer, they need to come from the court itself. Sure, judges can theoretically be corrupt, but if you're going to complain about that, then there's no real point in complaining about anything, as the entire system is rigged. No, if we assume that judges are going to more-or-less do their jobs, it's almost impossible for someone to be charged with failure to pay child support unless they're actually delinquent. This is totally not true with criminal prosecutions, which even discounting possible political motivations can easily wind up with the wrong guy in the defendant's box. So requiring the state to provide counsel for criminal defendants really is categorically different than civil cases, even where there's the potential of going to jail.
posted by valkyryn at 10:47 AM on March 23, 2011 [2 favorites]

When a non-custodial father is a day late or a dollar short, the media applies the pejorative label "deadbeat dad." When the custodial mother denies access to the children, what does the media call her?

You cannot think of the name because there isn't one. There is a massive double standard that is accepted with a shrug in family law. I have personally known non-custodial fathers who paid their support promptly and fully for years on end while the mothers kept them from communicating with their children.

Add me as another data point here. My cousin went through exactly this situation and ended up doing jail time for it. He wasn't given access, despite the conditions of custody, and so he withheld financial support because he was concerned the mother wasn't actually using the money as intended (namely, on clothes and food for his child--she had cheated on him and lied about a number of things, so there wasn't any basis for trust there anymore).

There was no legal remedy on his side, and he failed to understand the consequences of trying to negotiate the conflict on his own; as a result, he did a short stint in jail and briefly got labeled a deadbeat dad. He's since gone on to remarry and is supporting a family of five kids of his own (most of them from his new wife's previous marriage), and his previous wife remarried as well. But he still has a jail house tattoo to show for his experience (and another child that, to this day, he's not allowed to see).

My cousin is a solid working class guy who's worked hard all his life to meet his personal obligations and support his family. He was never in any sense a deadbeat, despite the hype around these issues.
posted by saulgoodman at 10:50 AM on March 23, 2011 [1 favorite]

So, whatever happened to wage garnishment? Hasn't that been used in the past to extract child support from unwilling non-custodial parents?

And if someone is working under the table to keep from paying child support through garnishment, then they're obviously not paying taxes on it and at that point it does become a criminal case, doesn't it?

Real questions, not trying to be snarky or funny.
posted by hippybear at 10:53 AM on March 23, 2011 [1 favorite]

the solution is to change the support laws, not to introduce a new and exceptionally problematic civil right where we don't strictly need one.

Changing the law doesn't do much for a person who doesn't have an attorney (or paralegal or other advocate) to ensure it's applied correctly. My experience with the support collection unit is the perfect example. There was already a regulation saying that a person's income wasn't supposed to be garnished below a certain level. The SCU routinely acted as though the regulation didn't exist. NCP's who didn't know about the regulation would ask the SCU if there was anything SCU could do about the garnishment, and the SCU would falsely tell them that SCU couldn't do anything, they had to go to court. When advocates started sending letters citing the regulation, they initially just ignored us, then made various claims that they wouldn't or couldn't stop the garnishments. When we finally got them to comply with requests that came from attorneys, they continued to ignore requests from pro se NCP's. Now take a situation like that, and add the possibility of jail time.
posted by Mavri at 10:53 AM on March 23, 2011

Being a loving father of two who admittedly has been behind in his child support in the past I find this to be a great injustice to the rights of fathers in South Carolina and everywhere. There are so many variables in any parenting situation that a blanket law like this is counterproductive to whatever goal they might be attempting to reach. I am not against the idea of accountability, however I believe they go overboard on demonizing fathers in this situation. This punishes those who are unable the same as those who are unwilling, and fundamentally that is where the evil lies. The courts are already not a friendly place for fathers in this situation due to the social stereotypes and stigmas that permeate our culture. As states attempt to pay huge deficits legislation like this will become the norm. Don't think for one second that it will magically be limited to the fringes of society either. Someone explain to me why social welfare for our country is not worth investing in while corporate welfare is. Wall street can rob us right in front of our face without consequence while a struggling single mom or dad trying to get a little help in a recession results in one of them being incarcerated without representation. I for one am outraged.
posted by Kale Slayer at 10:54 AM on March 23, 2011 [3 favorites]

Hey liberals: we don't need to make shit up to prove our point. Stop it.

Telling the truth doesn't seem to be working any more.
posted by scrowdid at 10:55 AM on March 23, 2011

People where I live are allowed to get a lawyer appointed to them by the court when they are accused of being in contempt of the court by not paying their child support. I am on that list, and I have and continue to represent a lot of people who are in this situation.

I would address the general problem the following way:

1. I would give the man the ability to opt out of paying child support during the first trimester of the woman's pregnancy. She would have a duty to notify him of the pregnancy if she wanted to preserve her right to child support. Just as she has the ability to opt out of being a parent at all during the first trimester, so, too, would the man be able to opt out during this time. She would not lose her child support rights if she made a good faith effort to contact the man but was unable to. This would eliminate some child support cases. People who are married would not be able to opt out.

2. In a custody case where both parents are found to be quite appropriate to have custody, either parent should have the opportunity to accept full custody and give up the right to child support. If either parent does this, then neither parent can receive child support. This doesn't mean that the parent with the most money would get the child. This means only that if both parents are found to be appropriate to have custody and one has volunteered to waive child support, then the parent who gets custody could not receive child support. It would not affect who gets custody. This would likely result in a lot of compromises between the two parties where the two would agree on an amount of child support. One parent might say, "I can do it without child support, but the other parent is in a better position to have the child." Those two could work something out.

3. When people are found to be in contempt for not paying their child support, they should not be required to serve more than two days per week in jail. This will provide them with the opportunity to earn money and catch up on their obligation. Sitting in jail all week only allows them to find someone to give them a ridiculously high interest loan to get out of jail. If they do not report for their two days per week, then they can be locked up for thirty days straight before returning back to weekends.

4. In my state there is a minimum of about $250 per month for child support. That is not a realistic amount for people who have disabilities or are unemployable to pay. The monthly minimum should be reduced for people who are not able to pay it. It is ridiculous to order someone to pay 250 per month and bring them into court every six months for fifteen years because they are never able to keep up. Give them an amount they might be able to keep up with, and maybe they won't have to come to court.

5. Well over ninety percent of the cases I see in contempt in child support court are for defendants who have no money. Almost no one even has a job. It is difficult to call their non-payment "willful." In the rare case where there is someone who has plenty of money and just chose not to pay child support, that person is allowed to simply pay the amount owed and not go to jail at all. That should change. When it can be proven that the non-payment was willful, the person should be ordered to do a weekend or two in jail for being in contempt.
posted by flarbuse at 11:01 AM on March 23, 2011 [1 favorite]

I think that we should be able to send people to jail for failure to pay child support.

If you think the court should be allowed to deprive someone of their liberty, then they deserve a lawyer to represent them.

Personally I don't believe judges should be allowed to send people to jail for failure to pay child support.
posted by Civil_Disobedient at 11:07 AM on March 23, 2011 [4 favorites]

Because the money is not for you. It's for the child.

OK, that is a good point that I was not truly taking into consideration. I agree now.

I think probably the reason I was looking at it like that was, in my few experiences with people getting paid child support, it really didn't seem the work that way. Warning, these are just anecdotes about the two families I know/knew best with child support happening. In one of them, the checks started coming in and the family moved into a bigger house and mom got a newer car. The previous house was just fine and in a nice neighborhood. Aside from that, the quality of life of the kid didn't change compared to before. In the other, the mother has lots of financial problems. Her kids are fed with food stamps and free school lunch, treated at free clinics, etc. Not much investment is made in her or her future. The money coming in pays for whatever could use some paying for. In both these cases it really doesn't feel like the money was helping the kids so much as it was their parents (who sure, had a tougher time financially having to raise the kids.)

I realize I know nothing about child support and this is n=2. And undoubtedly, kids have operating costs and they certainly would be worse off without their parent getting the check. But I think this is not very efficient and not very effective at actually supporting the child.

Are there any kind of guidelines saying how money is to be allocated? (Any way to audit it?) I don't know how you'd do it without too much bureaucracy, but I would be more pleased if there was some kind of system ensuring that from this income the children are being clothed, fed, seeing a dentist, taken to museums, etc. It should be truly for the kid, benefiting the kid directly even if mom has a whole bunch of credit card debt and pressing financial obligations of her own. Maybe there already is and my experiences were just a couple unfortunate failures of the system. I envision an arrangement where the custodial parent receives a smaller monthly stipend as a check, with the remainder going into some type of managed account for education, medical expenses, school clothes, etc.
posted by floam at 11:09 AM on March 23, 2011

Hm, why not? I mean, if I've got custody of a child, and I want money from his mother, and the deal is that she gets to see her child every weekend, and I choose not to comply and to rob her of that — why the hell should I continue to be entitled to her hard earned money?

Visitation is a right of the child to see the parent, and not the other way around.

Child support is an obligation that exists independently of any visitation or placement.

All parties to an order have an obligation to follow the terms of the order regardless of the behavior and choices of the other parties.


Are there any kind of guidelines saying how [Child support] money is to be allocated?

No.
posted by Pogo_Fuzzybutt at 11:13 AM on March 23, 2011 [1 favorite]

So, whatever happened to wage garnishment? Hasn't that been used in the past to extract child support from unwilling non-custodial parents?

Sometimes. There are some problems with that though.

First, as Mavri points out, there are limits on how much the court is properly allowed to garnish, but in the absence of some requirement that the court actually investigate the person's ability to pay--or a lawyer to ask them to do so--agencies frequently ignore said regulations entirely. This can lead to a paycheck being garnished to way below poverty level.

Second, getting garnishment implemented can be something of a trick. They could be working under the table, which is actually not that uncommon for people in these types of situations. They could be working for tips, leaving nothing in the actual paycheck to garnish after taxes. They could have changed employers a couple of times--again, not that uncommon--making it difficult for the agency to determine exactly whom to give the order. If you're down on your luck enough to the point where garnishment is a real possibility, you're pretty likely to change jobs with some frequency, so this is a real issue.

So yes, garnishment does exist and is still used, but it's far from a panacea.
posted by valkyryn at 11:25 AM on March 23, 2011

First, in criminal cases, the charges are being brought by the state, not by a private party. This represents a truly significant power imbalance, and it's one of the things the Framers were primarily concerned about when they drafted the Sixth Amendment.

This is wrong in two respects. Firstly, child support enforcement actions are frequently brought by the state through child support enforcement offices. The case might be captioned as a family law matter between the two parents, but the state pays for lawyers to prosecute the action for the custodial parent. Secondly, what the founders meant by the right to counsel is pretty irrelevant after the modern reinterpretation of the Sixth Amendment in cases like Gideon. Those cases pretty clearly lay out that it is the potential consequences of a criminal prosecution (jail time) that are the driving reason for reinterpreting the right.

Second, criminal charges can be brought for almost anything, and it really is pretty easy for prosecutors to get the wrong guy.

There is no intellectually consistent justification for the right to counsel that hinges on the possibility of getting the wrong person. We give lawyers to the clearly guilty, we give them to people who intend to plead guilty. After they plea, they still are entitled to a lawyer for sentencing. After the court had decided that they are guilty, and thus there is no issue of the wrong person being charged, you still get a lawyer, even if you plead guilty without one. That's a case that's more open and shut than any child support hearing, because the person has already admitted that they're guilty. In criminal cases, we recognize that the seriousness of the consequences justify paying for a lawyer even when a clearly guilty person is charged.
posted by Bulgaroktonos at 11:26 AM on March 23, 2011 [2 favorites]

I think this is not very efficient and not very effective at actually supporting the child.

It's also basically the only way it can be done without setting up a government run program which doles out specific resources in specific amounts at specific intervals. All of which would be an absolutely bureaucratic nightmare which no one is really interested in running, charges of socialism aside.
posted by valkyryn at 11:27 AM on March 23, 2011

Visitation is a right of the child to see the parent, and not the other way around.

While this is an interesting take, I'm not sure it's that simple. Custody rights and visitation rights are awarded to parents, not to children--granted, in principle, the child should have a say in that, but legally I don't think this way of looking at is correct, and I can imagine (have to a lesser extent seen) all sorts of scenarios where the hard feelings of one parent against the other can unfairly damage the regard the child has for the other parent in their absence. People are emotional, spiteful nasty little critters sometimes. Law is supposed to be one mechanism for helping to mediate the harmful impacts of those tendencies in people. If the law is fair and impartial, it will give equal benefit of the doubt, in the abstract case, to both sides, as well as equal protection, regardless of ephemeral cultural prejudices.

And in my cousin's case, the child wasn't even a year old at the time of the divorce, so I don't think it was her idea never to see her daddy again.
posted by saulgoodman at 11:30 AM on March 23, 2011

Firstly, child support enforcement actions are frequently brought by the state through child support enforcement offices. The case might be captioned as a family law matter between the two parents, but the state pays for lawyers to prosecute the action for the custodial parent.

I know that, but that's not what I was getting at.

The state may be the one paying the prosecutor, but the prosecutor isn't the one who decides, more or less on his own initiative, to bring the case. It is brought to him by the custodial parent, much as any other plaintiff might bring a case to a private attorney. In criminal cases, the state decides to go after someone for the state's reasons, which raises the prospect of political motivation on a number of different levels. In child support cases, the state agrees to prosecute what is essentially a case between two private parties. The possibility of singling someone out for political reasons is basically non-existent.

In criminal cases, we recognize that the seriousness of the consequences justify paying for a lawyer even when a clearly guilty person is charged.

But there is a constitutional presumption of innocence. Which entirely undermines your point.
posted by valkyryn at 11:30 AM on March 23, 2011

I agree with valkyryn that we should be able to send people to jail for willful failure to pay child support, but I can't see how doing so without counsel is remotely fair.

I think as close as we get is the solution I described above, i.e. require the judge to make a finding that the person is able to pay. Spelling out those sort of things in statutes has a marked effect on judicial behavior, though it isn't one that laymen frequently appreciate.

This solution wouldn't hurt, and it's a reasonable political compromise, but it's not due process. When you haul a guy into court and ask the judge to make a finding that the person is able to pay, you're creating a situation where the judge evaluates evidence to decide whether someone should go to jail or not. Most people who wind up in this situation, whether they are deadbeats or those who simply cannot pay as ordered, aren't exactly able to present a compelling case as to the state of their finances and their ability to pay. It's not as if child support formulas and welfare benefits are that simple or judges are going to take the time to wade through alleged deadbeat's financial records on their own.

There are two main differences between child support hearings and criminal cases. First, in criminal cases, the charges are being brought by the state, not by a private party. This represents a truly significant power imbalance, and it's one of the things the Framers were primarily concerned about when they drafted the Sixth Amendment. Sure, the prosecutor technically takes the case, but it isn't initiated by the prosecutor: someone has to come to him with a complaint first.

But that's not really how virtually all these child support cases work. We're not talking about a single mom with four kids in tow dragging her deadbeat ex into court all by herself so she can put food on her table. We're usually talking about the state bringing an action to collect child support as reimbursement toward public benefits paid to the custodial parent. Most criminal cases aren't initiated by the prosecutor either: I make a complaint that John Smith stole my flat-screen, and if there's enough evidence and the prosecutor decides to pursue the case, she files criminal charges. Any alleged deadbeat brought up on contempt charges would feel that the proceedings were the state vs. them and that a tremendous power imbalance exists.

No, if we assume that judges are going to more-or-less do their jobs, it's almost impossible for someone to be charged with failure to pay child support unless they're actually delinquent. This is totally not true with criminal prosecutions, which even discounting possible political motivations can easily wind up with the wrong guy in the defendant's box. So requiring the state to provide counsel for criminal defendants really is categorically different than civil cases, even where there's the potential of going to jail.

"Almost impossible" is a strong bar when we're talking about the accuracy and record-keeping practices of a state child support agency and the potential for manipulative and vindictive exes, but I'll grant that most people charged with failure to pay child support are, in fact, delinquent and most judges aren't corrupt. The problem is that being "delinquent" covers a huge continuum of circumstances, and most of those circumstances aren't helped by jail. You're concerned with the case where someone has the ability to pay, the knowledge that they are supposed to be paying, and they willfully choose not to do so. I'm concerned with the numerous cases where someone has an order to pay, say, $300/month, but they only make $500/month, or any of the other sordid tales in this thread. Yes that person is technically delinquent because they violated a court order, but it was an order they cannot reasonably comply with. If they ever could comply, they can't anymore because their circumstances have changed. You're basically saying that if they are in the courtroom they must be guilty, and I'm saying that there's more to it than just whether the check cleared or not.
posted by zachlipton at 11:33 AM on March 23, 2011 [1 favorite]

The takeaway message here is to be careful who you have babies with.
posted by electroboy at 11:34 AM on March 23, 2011 [5 favorites]

Look people: family law sucks in just about every imaginable way. The current system represents the culmination of a century of attempting to deal with the legalization of divorce, and the real answer is that there are no perfect solutions. There can't be. We're talking about the rupture of the most fundamental relationships people can have. There isn't any possible way of doing that neatly.

Furthermore, we're talking about imposing formal legal requirements on what is a significantly informal and virtue-based system. The families that work well do so not on the basis of rule enforcement but on cooperation, self-sacrifice, and love. The legal system is not and can not be a substitute for that. It is, at best, a ham-fisted solution which can roughly approximate a less than awful solution a decent amount of the time. We aren't talking about optimal outcomes here, we're talking about avoiding the worst outcomes.

The rules that exist do so because they were perceived to be answers to really bad problems, mostly of fathers just abandoning their wives and children with no viable means of support. I would hope that we could all agree that this is far, far more problematic on a much larger scale than the problems we're talking about in this thread, i.e. non-custodial parents getting in to trouble because they can't afford their child support payments. The legalization of divorce itself was felt to be the answer to a set of really important problems at the time, though it happened so quickly that people are starting to wonder whether the unintended consequences (i.e. basically all of family law) were worth the societal cost. I'm kind of agnostic on that point, but I'm sensitive to the idea that decisions made by people in the past tend to be made for what said people considered to be good reasons.

I'm not trying to argue that this is a good situation. But I am trying to argue that a lot of the alternatives are a lot worse than this one.
posted by valkyryn at 11:40 AM on March 23, 2011 [2 favorites]

I would give the man the ability to opt out of paying child support during the first trimester of the woman's pregnancy

What? Why? Yes, the woman can opt out of being a parent by getting an abortion, but then there's no kid to support. If the father opts out but the woman does not, there's still a child that has to be supported, and now she's stuck with 100% of the cost. He made his choice to "opt-in" when he chose to have sex.
posted by desjardins at 11:41 AM on March 23, 2011 [4 favorites]

The problem is that being "delinquent" covers a huge continuum of circumstances, and most of those circumstances aren't helped by jail. You're concerned with the case where someone has the ability to pay, the knowledge that they are supposed to be paying, and they willfully choose not to do so.

It's like the legal equivalent of making someone repeatedly punch themselves in the face and then demanding they explain why they keep punching themselves in the face. It's law applied as a self-gratifying punishment mechanism, rather than as a practical remedy. Even granting that abandonment is a serious problem, and one the legal system has to address, the current state of law seems pretty ill-suited to the task.
posted by saulgoodman at 11:42 AM on March 23, 2011 [2 favorites]

As a stepfather, I have spent well over 500 thousand dollars raising one stepchild, two biological children and supporting my wife over the past 12 years. The biological father is useless for just about anything, but his dad is the DA of this town so we are pretty much screwed. I would love to see him go to jail for a year, he is pretty much a loser, riding on his daddy's dime and reputation to avoid supporting his biological child. But after 40 thousand combined dollars have been spent on legal fees (far more than we will ever get in child support), the issue is still unresolved and will probably always be. It is a hard thing for me to accept, and I wish this South Carolina law applied to him. I am pissed to the core of my being at the whole situation, it is a rotten stink in my soul that I can't forgive or let go of.

Whatever the answer is, I don't know. But I do know how easy it is to decide that you are too messed up in the head, refusing to grow up, or have enabling parents that all adds up to in the end as a justification for you to abandon supporting or seeing your own child. It happens. The people who do that type of thing should suffer. Massively, as far as I am concerned.

People who say"the money is for the child" are naive. It is for the household. The money has already been spent, and I would argue is most cases the child support is merely paying for things after the fact. In my case I would argue that any arrears he ever pays should go directly me. I have paid for, and raised his child for him, I took on that responsibility for him because he was too much of a baby to stand up and do the right thing.

And for anyone who feels the urge to complain about how Child Support money is spent:

Who cares if momma bought herself an iPod with the money, there were a million little things she bought at Target and Old Navy for the child that you never considered before levying that comment that sounds a wee-bit close to the old Welfare Queen argument.

That's just my extremely personal, highly charged and emotional experience with this issue. It's probably best to just let my comment lie if you disagree with it as I'm not much in a mood to politely discuss the rarified legal airs of this issue.
posted by roboton666 at 11:43 AM on March 23, 2011 [1 favorite]

He made his choice to "opt-in" when he chose to have sex.

Well, in general I agree, but not necessarily. It does occasionally happen that a woman claims to be infertile or on birth control as an inducement for a man to have unprotected sex with her when they are not.
posted by saulgoodman at 11:44 AM on March 23, 2011 [2 favorites]

And absolutely none of that could or should dissolve the father's responsibility to his child, saulgoodman.
posted by ODiV at 11:47 AM on March 23, 2011 [1 favorite]

I might be in the minority, but I think this is a great discussion on this issue and has changed the way I think about it. Child support is such a complicated and personal issue that the "edge" cases are much more frequent than we initially might think.

I have a close friend who's been wrapped up in a child support issue for over a year and the process is very frustrating. The non-custodial is an adult, but does not work and is given money by his parents whenever he needs it. He's also rarely home and lives in a semi-rural area, so it's difficult to serve him to further the collection process. She doesn't want jailtime anyway, just what the court says she's owed. It seems impossible to collect her owed support and I'm not sure if any law would really help.

tl;dr tough, personal issue+1
posted by ejoey at 11:47 AM on March 23, 2011

It is a hard thing for me to accept, and I wish this South Carolina law applied to him. I am pissed to the core of my being at the whole situation, it is a rotten stink in my soul that I can't forgive or let go of.

If his dad is the DA, what on earth makes you think the SC law would be applied to him if it applied? No amount of law-making can counter the effects of official corruption. Even the most basic laws can be fudged when there's a well-connected enough person in court, in my personal experience.
posted by saulgoodman at 11:48 AM on March 23, 2011

And absolutely none of that could or should dissolve the father's responsibility to his child, saulgoodman.

I didn't say it did; the point was narrowly addressing the claim that all fathers knowingly choose to become fathers by having sex. That's not true; I'm not claiming anything more or less than that.
posted by saulgoodman at 11:50 AM on March 23, 2011

But there is a constitutional presumption of innocence. Which entirely undermines your point.

Did you not notice my point about the right to counsel at sentencing hearings? At a sentencing hearing, you've waived your presumption of innocence; the court has found you guilty. Now, if you enter you guilty plea without a lawyer(but without waiving your right to counsel) you still have a right to counsel at your sentencing hearing. At this point the right has NOTHING to do with a presumption of innocence, it only has to do with the punishment the court is about to inflict on you. Note this line from Johnson v. Zerbst, "The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." The emphasis is clearly on the fact that the individual criminal defendant can be deprived of life and liberty. The deprivation of liberty is exactly the same in a child support case.

I'm not trying to argue that this is a good situation. But I am trying to argue that a lot of the alternatives are a lot worse than this one.

Let's be clear, the most obvious alternative in this situation is one in which a person charged with contempt for failure to pay child support is provided with a lawyer. The negative consequences you've identified are 1)cost and 2)some custodial parents might have trouble collecting their money. I have serious doubts that the costs would be that great, especially compared to the cost of running a public defender's service, but let's accept that it would cost something. You've identified two problems that are equally true of having a public defender's office, but we accept that because it would be an injustice not to. This is exactly the same.
posted by Bulgaroktonos at 11:51 AM on March 23, 2011 [2 favorites]

But there is a constitutional presumption of innocence. Which entirely undermines your point.

There's no constitutional presumption of innocence in a sentencing hearing, but you get a court-appointed lawyer for that too if you can't afford your own.

The state may be the one paying the prosecutor, but the prosecutor isn't the one who decides, more or less on his own initiative, to bring the case. It is brought to him by the custodial parent, much as any other plaintiff might bring a case to a private attorney. In criminal cases, the state decides to go after someone for the state's reasons, which raises the prospect of political motivation on a number of different levels. In child support cases, the state agrees to prosecute what is essentially a case between two private parties. The possibility of singling someone out for political reasons is basically non-existent.

The possibility of singling someone out for political reasons is not why we give criminal defendants lawyers. Lots of criminal cases are brought to the police and prosecutor just as a civil plaintiff might bring a case to a private attorney: by someone making a complaint. The case where someone steals my TV is essentially a case between two private parties. Heck, you could say a rape case is just a case between the victim and the alleged rapist, but that's not how we do things.

But all this isn't even the point. In many child support cases, the prosecutor is not acting as a free government-paid lawyer for the custodial parent, they are acting as a prosecutor to punish someone for failure to pay funds to the state (in exchange for welfare benefits given to the children). A child support action is fundamentally different from a civil lawsuit between two private parties.
posted by zachlipton at 11:51 AM on March 23, 2011 [2 favorites]

So, in other words, the mother of the children didn't sue the father, the state did, because the state is providing for his children because the father isn't...it's the state trying to recoup some of the costs of the PA.

Yes, I got that. But, unless the state suspects the father has a box full of money buried in is backyard, jailing him seems a bad way to recoup anything. The father isn't able to earn money while he's in jail, and the state is taking on the additional expense of imprisoning him.
posted by steambadger at 11:54 AM on March 23, 2011

the point was narrowly addressing the claim that all fathers knowingly choose to become fathers by having sex.

No birth control method is 100% reliable, and people aren't 100% honest, so every time a person has sex they're taking a risk.
posted by desjardins at 11:57 AM on March 23, 2011 [1 favorite]

It's also basically the only way it can be done without setting up a government run program which doles out specific resources in specific amounts at specific intervals. All of which would be an absolutely bureaucratic nightmare which no one is really interested in running, charges of socialism aside.

Hm, I was imagining something a bit simpler. Most basically, with an agreement as to how funds are to be spent, there would be some type of government-defined spending account, implemented by private banks, sort of like FSAs are. Charges would be transparent to all involved parties and uncle sam. No government-guaranteed money or anything.
posted by floam at 11:58 AM on March 23, 2011

What unSane said: "How about they don't jail the deadbeat parent and give half of the money they save to the non-deadbeat?"

Damn straight. Spend money to incarcerate without due process? "Hell yeah!" Spend money to help the indigent single parent? "Smacks of communist welfare. That welfare queen needs to go get herself a job."

It's not just the priorities that are messed up - it's the methodologies.
posted by hank_14 at 11:59 AM on March 23, 2011 [1 favorite]

People who say"the money is for the child" are naive. It is for the household. The money has already been spent, and I would argue is most cases the child support is merely paying for things after the fact.

I'm not naive. I'm not saying that all of the exact money from the paying parent goes directly to pay for expenses for the child. Of course it's used to pay household expenses, for credit card bills, etc. And if you try to track where the money goes to, of course some of it will seem to go to things that aren't for the child (luxury items, alcohol, etc), but that's totally okay because expecting a parent to keep some sort of divided accounting system is ridiculous (Okay, now once we subtract your rent and diaper changing service, we still have $50 to spend on food for you this week...).

What I mean by "the money is for the child" is that the money is owed to the child and is paid to the guardian, irrespective of the financial situation or relative dickishness of that guardian.

In my case I would argue that any arrears he ever pays should go directly me. I have paid for, and raised his child for him

Totally disagree. If you were no longer with the parent of this child then the money owed should still go to the parent, not you.

saulgoodman: Yeah, sorry I shouldn't have put your name on the end there. I was continuing the conversation about allowing the father-to-be to "opt out" during the first trimester. As a man, having sex with a woman is opting in to to be the father of any child that results.
posted by ODiV at 12:00 PM on March 23, 2011

The reason we appoint lawyers in criminal cases is, at the end of the day, not about the complexity of the cases, the likelihood that you might be innocent, or anything other than the fact that you can lose your freedom.

The reason we appoint lawyers in criminal cases is that the Sixth Amendment of the U.S. Constitution guarantees due process of law in criminal cases. No such constitutional precedent exists for civil defendants. Where does this purported right stem from? This is most definitely not a criminal case. The party involved is in civil contempt of a court order in a support case. There has been no criminal matter. So there is no Sixth Amendment right.

So where does the entitlement come from? I cannot see where a constitutional right of that sort would spring from. If somebody has an amendment they'd like to point out, I'd like to see it. Not every liberty interest issue arrives out of a criminal case.
posted by Ironmouth at 12:04 PM on March 23, 2011 [1 favorite]

NP, ODiV.

Desjardin: I agree in general, but there's an asymmetric power relationship here, and while I know that's a really nasty, thorny subject, it can't just be ignored. Legally, a woman has the right to opt-out of the responsibility for being a parent after the fact of having sex. A man doesn't. I know this fact gets dredged up all the time as a rationalization for all sorts of horrible attitudes and atrocious behaviors, but at a certain level, it's just a fact of the circumstances. The law isn't supposed to grant/protect rights unequally though. Maybe it's a flaw in the theoretical foundations of law, but there it is.
posted by saulgoodman at 12:07 PM on March 23, 2011

But, unless the state suspects the father has a box full of money buried in is backyard, jailing him seems a bad way to recoup anything. The father isn't able to earn money while he's in jail, and the state is taking on the additional expense of imprisoning him.

I agree that imprisonment in these cases seems like it wouldn't work. But if it is a serious deadbeat, then it may convince the party to start paying.

But to bring up an analogous situation, Barry Bonds' best friend was escorted to the stand yesterday, where he refused to testify against Bonds. He is in civil contempt of court for refusal to testify and is in jail for the duration of the trial. Should the state pay for his lawyer?

I say no. It is the exact same situation from a legal standpoint.
posted by Ironmouth at 12:07 PM on March 23, 2011 [1 favorite]

There are already needs-based tests with regard to who gets a public defender in criminal matters - I don't see how that would be so tough to implement for certain sorts of civil matters. Was Bonds' best buddy indigent?

We could also introduce a civil Gideon through legislative means, on a state-by-state basis, spelling out specifically when the state may be compelled to provide counsel and when not, as was recently done in CA.
posted by Sticherbeast at 12:10 PM on March 23, 2011 [1 favorite]

NP, ODiV.

Desjardin: I agree in general, but there's an asymmetric power relationship here, and while I know that's a really nasty, thorny subject, it can't just be ignored. Legally, a woman has the right to opt-out of the responsibility for being a parent after the fact of having sex. A man doesn't. I know this fact gets dredged up all the time as a rationalization for all sorts of horrible attitudes and atrocious behaviors, but at a certain level, it's just a fact of the circumstances. The law isn't supposed to grant/protect rights unequally though. Maybe it's a flaw in the theoretical foundations of law, but there it is.

You are mistaking biology for law. The law cannot change biology. The fact that a woman can have an abortion has nothing to do with "opting-in" for anything. You are misapplying the fact that the right to privacy means that the state cannot prevent a person from doing what they want with their body to some sort of right to "opt out" of having a child.

Put another way--a man cannot be forced to have sex with a woman by operation of law. And a woman cannot be forced to carry a child to term.
posted by Ironmouth at 12:12 PM on March 23, 2011 [2 favorites]

Well over ninety percent of the cases I see in contempt in child support court are for defendants who have no money. Almost no one even has a job. It is difficult to call their non-payment "willful."

This is pretty much my point. In a fantasy world, every family court proceeding can turn into a great big rendition of Gee, Officer Krupke in which an unemployed alcoholic deadbeat dad with untreated schizophrenia walks into the courtroom, is magically fixed up by social workers, and a healthy investment banker walks out in a three piece suit, but that's not how the real world operates. A court cannot effectively order a parent to clean up his life, get and keep a job, successfully manage his alcoholism and mental health condition, and ensure that he has enough money left over after his salary and basic living expenses to pay a set amount of child support. The legal system, especially a child support case, is pretty unlikely to turn someone's life around and force them to be a "productive member of society," and putting that person in jail only makes that outcome less likely.
posted by zachlipton at 12:14 PM on March 23, 2011

There are already needs-based tests with regard to who gets a public defender in criminal matters - I don't see how that would be so tough to implement for certain sorts of civil matters. Was Bonds' best buddy indigent?

We could also introduce a civil Gideon through legislative means, on a state-by-state basis, spelling out specifically when the state may be compelled to provide counsel and when not, as was recently done in CA.

How tough? There is no basis within the Constitution. Upon which part of the Constitution does this power rely?

States are not "compelled" to provide counsel for anyone, criminal or otherwise. What Gideon says is that a person may not be convicted of crime without the access to counsel. In order to convict poor people, public defenders are created.

The civil Gideon idea is perfectly legal. Under what circumstances would such right attach?
posted by Ironmouth at 12:16 PM on March 23, 2011

The reason we appoint lawyers in criminal cases is that the Sixth Amendment of the U.S. Constitution guarantees due process of law in criminal cases. No such constitutional precedent exists for civil defendants.

You're falling back on definitions without thinking about what they mean. If there's a civil case that ends with you going to jail, what exactly is the distinction between that and a criminal proceeding? The distinction between criminal and civil cases must be grounded in something other than what they're called on the file. I think that the only viable distinction, that protects the interests at stake in the Sixth Amendment is whether or not the case carries jail time. If you'd like to propose a different test that's fine, but saying "nope this is civil says so right here" misses the point entirely.
posted by Bulgaroktonos at 12:18 PM on March 23, 2011

You are mistaking biology for law. The law cannot change biology. The fact that a woman can have an abortion has nothing to do with "opting-in" for anything. You are misapplying the fact that the right to privacy means that the state cannot prevent a person from doing what they want with their body to some sort of right to "opt out" of having a child.

I don't think he was suggesting that men be given a right to "abort" his baby just like a woman could. He was arguing that the law try to mitigate the biological disparity. He doesn't believe men should have the right to opt-out of having a child, just the financial obligations, assuming the female half had enough warning to make an informed decision as to whether or not she wanted to have a baby by herself. In the same way (I think) a sperm or egg donor would be able to.
posted by floam at 12:21 PM on March 23, 2011 [2 favorites]

This is like "how is babby formed?"

Woman gets pregnant. Man does not want babby. Woman has babby anyway. There is now a babby that requires food and shelter. Therefore man must help support babby.

Women gets pregnant. Woman does not want babby. Woman aborts babby. There is no babby. No support is needed.
posted by desjardins at 12:30 PM on March 23, 2011 [1 favorite]

The law cannot change biology. The fact that a woman can have an abortion has nothing to do with "opting-in" for anything. You are misapplying the fact that the right to privacy means that the state cannot prevent a person from doing what they want with their body to some sort of right to "opt out" of having a child.

No, I'm not. I'm just pointing out that if there's some legal principle that should be embodied in the law here (and I assume you would agree there should be some general principles underlying laws), then if as Desjardin characterized it, that principle is that consent to have sex = consent to be responsible for any child that potentially results. If that principle should be embodied in law, as suggested, then how can it be done in a way that applies equally to both men and women given the different biological realities and other circumstances? Believe me, I don't want to get into the anti-choice arguments here. My position on choice is pretty clear, as I've discussed here before. It just seems like a very difficult legal problem to me.
posted by saulgoodman at 12:31 PM on March 23, 2011

I'm not endorsing the idea, although I do find it a bit intriguing. I want to like the idea, I don't consider early abortion a big deal. But I don't dig the result where you've got every dickhead screwing without worry, with the potential for girls who don't feel the same way about ending pregnancies either being coerced into something they're not into or having a baby they can't afford. I do think perhaps a mutal prefornical agreement could be ethical.
posted by floam at 12:31 PM on March 23, 2011

desjardins: I think the sticking point is that woman gets to choose to have babby there knowing there's nobody else to feed and shelter it. What is the variable that changes the circumstances between the egg/sperm donor and an opt-outer and the hypothetical prefornical agreement? I guess I don't really think babby is formed until birth.
posted by floam at 12:43 PM on March 23, 2011

More War on the Poor. Minnesota's GOP is trying to pass a provision that makes it illegal for people to withdraw more than twenty dollars from their TANF allotment, and would effectively make it illegal to carry cash at all.

I'm pretty sure this is bullshit.
posted by I_pity_the_fool at 12:50 PM on March 23, 2011

Ironmouth: Whether the jailing is coercive (because they could pay, or testify) or punitive (because they can't) is a legal and factual question in its own right. Whether the 6th amendment matters depends on the answer to the question. Before that question is answered (or when the person about to be jailed says the facts have changed), shouldn't the 6th apply, which would ensure that people who are being punitively jailed have been represented?
posted by a robot made out of meat at 12:53 PM on March 23, 2011

How tough? There is no basis within the Constitution. Upon which part of the Constitution does this power rely?

I'm not talking about a Supreme Court ruling on the topic, I'm talking specifically about states enacting through legislative means a limited civil Gideon. I don't think the Constitution clearly provides for a civil Gideon in and of itself, although I don't think such a read is impossible, either.

Cases like the present one cry for such a solution. The incarcerated individual winds up in a situation where his incarceration may be a civil, coercive matter or it may be a criminal, punitive matter. This was accurately described upthread as a Catch-22.

States are not "compelled" to provide counsel for anyone, criminal or otherwise. What Gideon says is that a person may not be convicted of crime without the access to counsel. In order to convict poor people, public defenders are created.

Which states have chosen to eliminate their criminal courts rather than incorporate the Sixth Amendment right to counsel?

The civil Gideon idea is perfectly legal. Under what circumstances would such right attach?

Indigent defendants in cases where fundamental rights are concerned. Child custody cases, child support cases where imprisonment may occur, etc. I would take a "wait and see" approach to see how CA deals with their statute, copy what works, change what doesn't, etc.
posted by Sticherbeast at 12:55 PM on March 23, 2011

Also, ending the pregnancy isn't the only choice in those cases: females could also opt-out after the birth with adoption.
posted by floam at 12:56 PM on March 23, 2011

"The plural of anecdote is not data, but the bigger problem really does seem to be people who simply don't want to pay rather than people who legitimately can't."

In Illinois, it was startling how many people who claimed inability to pay support suddenly found themselves able to do so when Illinois stopped giving hunting licenses to parents delinquent on their child support. As I recall they collected an extra $50 million in owed child support the FIRST YEAR the hunting license law was on the books.

So, yes, a buttload of people care a lot more about their ability to shoot at deer than about the welfare of their children.
posted by Eyebrows McGee at 12:59 PM on March 23, 2011 [1 favorite]

Well, regarding the biological disparity. You are missing one thing - birth control is a two way street. Men too have a say in this. A man can use a condom. And if not, a man can opt for a vasectomy - even a reversible one. Presto, no kids. So I don't feel men are in any way disadvantaged by this biological disparity.
posted by VikingSword at 1:03 PM on March 23, 2011

You are missing one thing - birth control is a two way street. Men too have a say in this. A man can use a condom. And if not, a man can opt for a vasectomy - even a reversible one. Presto, no kids.

Except that, as pointed out up-thread, no birth control method is perfect (even vasectomies aren't 100% fool-proof). And adoption, for example, allows a woman to give up financial responsibility for a child after it's already been born, while men have no comparable option (and no, I'm not advocating forced adoptive rights for dad's here either, just sussing out the wrinkles).
posted by saulgoodman at 1:06 PM on March 23, 2011

I'm so glad the prison system isn't "for-profit" where I live.
posted by DreamerFi at 1:16 PM on March 23, 2011

So, yes, a buttload of people care a lot more about their ability to shoot at deer than about the welfare of their children.

Yes. There are some callous bastards out there. There are also well-meaning guys whose problems get unjustly compounded by the system. In my cousin's case, again, his ex-wife came from a relatively wealthy family who helped pay her legal expenses, while coming from a working class family, he barely had the personal resources or know-how to mount a defense (and he wasn't even out of high school when his ex-wife/then girlfrien first became pregnant and he tried to do the honorable thing in marrying her, although she was a couple of years older).
posted by saulgoodman at 1:17 PM on March 23, 2011

the petitioner (dad) is represented by Seth Waxman, who has argued before the Court many, many times, including during his tenure as U.S. Solicitor General, and he is really, really good at it.

Really? Because the transcript is now up, and he seems rather a bumbling oaf to me. The Chief Justice had to snap at him to make him shut up, and he's stammering and interrupting and sentence-fragmenting his way through the whole argument. It reads like he had way too much coffee this morning. I thought Bibas, on behalf of the respondents, did a much better job, and based on the overall response from the Justices, it seems likely to me that the judgment will be affirmed.

(Must we have the same tired "why don't men have the right to opt out" argument again?)
posted by Gator at 1:19 PM on March 23, 2011

The rates for vasectomy failure resulting in pregnancy are extremely low. And most of them result from inappropriate behavior after the procedure (i.e. not waiting long enough before intercourse). Further, even those rare cases can be mitigated by the FDA approved SpermCheck Vasectomy. And if you wish, you can then pile more measures, such as using a condom on top of all that.

In other words, if you are super careful, you can bring cases to pretty much zero. As technology progresses, we'll get ever closer asymptotically to zero. Law is not meant to encompass extremely rare outlier cases, and when laws are built on edge cases, they are usually bad laws.

I think that in 2011, this is close to being a non-issue. If a man got a woman pregnant, he is, as far as I can see, 100% responsible (barring things like being held down and forcibly etc.).

Given the nightmare of unwanted pregnancy and children - and this thread merely adds to that - I can't understand why any man or woman would not take at least some very basic precautions.
posted by VikingSword at 1:19 PM on March 23, 2011 [1 favorite]

Pregnancy and childbirth is not exactly equal towards men and women, and trying to write laws pretending that it is equal, or should be equal, or can be made equal, is doomed to failure. When the woman is pregnant, she has her normal rights to do what she wants with her body. Once the child is born, the child has its normal rights to financial support by both parents and visits with both parents.
posted by jeather at 1:20 PM on March 23, 2011 [1 favorite]

So, yes, a buttload of people care a lot more about their ability to shoot at deer than about the welfare of their children.

There's also people that rely on hunting for a large portion of the food they eat.
posted by electroboy at 1:24 PM on March 23, 2011 [2 favorites]

What is the variable that changes the circumstances between the egg/sperm donor and an opt-outer and the hypothetical prefornical agreement?

The variable is that the recipient of the donated egg/sperm has no expectation that the donor will provide financial support. Those rights and obligations have already been signed away. I assume by "hypothetical prefornical agreement" you mean that a man could sign away his obligations to a potential child before he even has sex. I don't think he should be able to. If he opts out, and she gets pregnant, even if she decides to terminate the pregnancy she still bears all of the cost - financial, emotional and physical.
posted by desjardins at 1:26 PM on March 23, 2011

There's also people that rely on hunting for a large portion of the food they eat.

In Illinois? Come the fuck on.
posted by desjardins at 1:26 PM on March 23, 2011

I assume by "hypothetical prefornical agreement" you mean that a man could sign away his obligations to a potential child before he even has sex.

I meant that a couple could both sign a contract together stating that no baby is wanted by either party, and the other is absolved of any financial responsibility should one occur, before having sex. It is expected but obviously not required that should a pregnancy somehow occur, it would be aborted, adopted out, otherwise the the parent with custody bears all responsibility.

In the most of the US if a mother wants to adopt a child out, I believe the man can stop it and get custody. So if that occurred, the man would care for it by himself with no child support from the mother.
posted by floam at 1:34 PM on March 23, 2011

VikingSword: I understand, but earlier when I pointed out that women do sometimes deceive men into unprotected sex claiming infertility, birth control use, or similar, that point was flatly rejected on the basis that the use of birth control wasn't enough to deflect responsibility. Having sex, period, in the specific comment I was addressing, was taken to imply the acceptance of responsibility for any offspring in the case of men.
posted by saulgoodman at 1:35 PM on March 23, 2011

In Illinois, it was startling how many people who claimed inability to pay support suddenly found themselves able to do so when Illinois stopped giving hunting licenses to parents delinquent on their child support. As I recall they collected an extra $50 million in owed child support the FIRST YEAR the hunting license law was on the books.

The program worked, but they only collected $263,506. Your basic point still stands, though.
posted by Sticherbeast at 1:35 PM on March 23, 2011

Did some back of the envelope calculations. That's around 20 people who got snared that way. I don't have a problem with a solution that works, but it does not suggest that there were hordes of men who were hunting but not paying child support.
posted by Sticherbeast at 1:41 PM on March 23, 2011 [3 favorites]

(Or, I don't see why two consenting adults couldn't have a similar contract where they do have sex with full intent to have a baby, but removing from the father of all rights to the child and responsibility. A cheap, natural sperm donor. The point is, mother has the baby with no expectation that the biological father will provide financial support.)
posted by floam at 1:42 PM on March 23, 2011

Must we have the same tired "why don't men have the right to opt out" argument again?

You're free to opt out of the argument if you find it tedious.
posted by DevilsAdvocate at 1:44 PM on March 23, 2011 [2 favorites]

You're free to opt out of responding to my comments, as well. Everybody wins!
posted by Gator at 1:48 PM on March 23, 2011

I would, if I wanted to.
posted by DevilsAdvocate at 1:51 PM on March 23, 2011

Why don't you two just make a baby already and then go through a lengthy, drawn-out child support case.
posted by Sticherbeast at 1:52 PM on March 23, 2011 [1 favorite]

Oh.

Snap.
posted by Gator at 1:52 PM on March 23, 2011 [3 favorites]

In Illinois? Come the fuck on.

So there's a lot of hunting licenses but nobody hunts? Or only rich people hunt? What's your argument here? I live in a pretty wealthy state and I personally know 3 or 4 people that rely on hunting to make ends meet.
posted by electroboy at 2:00 PM on March 23, 2011

"The program worked, but they only collected $263,506. Your basic point still stands, though."

Suspect my number included loss of drivers' licenses too, then, though I was sure I was remembering the hunting/fishing only. Oh well, getting old. :)

The worst child support deadbeat case I ever saw, which I only relate so I can tell you what the judge said, was a guy who was married, earned a ton of money as a highly-skilled professional, had four kids, divorced his wife while she was pregnant with the fourth, and then decided not to work ever again because he didn't think he should have to pay for them because they were his wife's problem; they were HER kids after all, not his. (Two of them require specialized medical care, too.) So he "retired" and his very wealthy parents buy him shit, like $60,000 cars, and he has "no income" and "can't afford to pay." He went to court to have the support requirement removed completely because he was "disabled."

The judge gave him the stink-eye when he claimed he couldn't afford to pay, and said, "Son, you should have thought of that before you impregnated the same woman four times in a row. Since you can't produce any proof of disability, just terminal laziness, find a way to pay the order or go to jail. Those are your options, and those will be your options for the next 18 years."
posted by Eyebrows McGee at 2:02 PM on March 23, 2011

(Or, I don't see why two consenting adults couldn't have a similar contract where they do have sex with full intent to have a baby, but removing from the father of all rights to the child and responsibility. A cheap, natural sperm donor. The point is, mother has the baby with no expectation that the biological father will provide financial support.)

Lesbians do this all the time.
posted by desjardins at 2:02 PM on March 23, 2011

If he opts out, and she gets pregnant, even if she decides to terminate the pregnancy she still bears all of the cost - financial, emotional and physical.

That's not necessarily so, is it? I've heard of cases where a man agreed to cover medical expenses associated with a termination. That could be defined by contract as well. But good lord, we have to have pre-fornication contracts now, too?
posted by saulgoodman at 2:04 PM on March 23, 2011

I should clarify: if the woman is fine with the guy signing away his obligations, then it's their choice and I feel that privacy laws should apply. I do not think it's in society's best interests, however, since there is still a child that needs support, and two incomes provide more support than one.
posted by desjardins at 2:06 PM on March 23, 2011

I've heard of cases where a man agreed to cover medical expenses associated with a termination.

Sure, and that's noble, but there are physical changes that occur in any pregnancy, some people who choose to terminate their pregnancy experience doubt and fear, and since it's a medical procedure, there's a non-zero risk of complications. Men don't have to deal with any of that. Just look at this very recent askme for what one person went through.
posted by desjardins at 2:13 PM on March 23, 2011

You're falling back on definitions without thinking about what they mean. If there's a civil case that ends with you going to jail, what exactly is the distinction between that and a criminal proceeding? The distinction between criminal and civil cases must be grounded in something other than what they're called on the file. I think that the only viable distinction, that protects the interests at stake in the Sixth Amendment is whether or not the case carries jail time. If you'd like to propose a different test that's fine, but saying "nope this is civil says so right here" misses the point entirely.

On the contrary, I am thinking about what they mean. I am looking at the law, not making up my own test. The test is long decided, counselor. I refer you to 757 of the U.S. Attorney's Criminal Resource Manual:

Because the primary aim of a criminal contempt action is vindication of the authority of the court and punishment for disobedience already accomplished, the general rule is that purging of contempt is not a complete defense in a criminal contempt action. Consequently, a person found guilty of criminal contempt may be sentenced to a fixed and definite term of imprisonment, or be required to pay an unconditional fine. See United States v. Shipp, 203 U.S. 563 (1906); Skinner v. White, 505 F.2d 685, 689 (5th Cir. 1974).
In a civil contempt action, the issue of purging is determined by whether the action is coercive or compensatory in nature. A "coercive civil" contempt action is one wherein the principal object is respondent's compliance with the court decree. This is to be contrasted with a "compensatory civil" contempt action wherein the principal object is the receipt of an award or compensation. The contemnor in a coercive civil contempt action possesses the "keys to his own cell" since he may not be sentenced to a fixed or definite term of imprisonment or subjected to an unconditional fine. See Penfield Co. v. SEC, 330 U.S. 585, 595 (1947); Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441-42 (1911); Duell v. Duell, 178 F.2d 683, 685 (D.C.Cir. 1949); Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946). An unconditional award or fine may, however, be imposed in a compensatory civil contempt action. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); United States v. United Mine Workers of America, 330 U.S. 258, 303-04 (1947); Backo v. Local 281, United Brothers of Carpenters and Joiners, 438 F.2d 176, 182 (2d Cir. 1970), cert. denied, 404 U.S. 858 (1971).

(Emphasis mine).

It is the difference between punishment and compulsion. Punishment is punitive in nature, it removes certain rights, it makes release impossible. Coercion in a civil matter is quite different. It is designed to compel, not punish. It is designed to effect the order in question. Therefore there is no Sixth Amendment issue at stake here, because there is no punitive, fixed punishment, only an attempt to enforce the court's judgment. You and I likely agree that the policy of placing such people is stupid and counter productive, but that does not mean it creates a criminal setting.
posted by Ironmouth at 2:14 PM on March 23, 2011 [1 favorite]

desjardins: sorry, I meant to distinguish the economic costs part of your comment out. I would also argue that women aren't necessarily alone in the emotional costs, though those costs may be different. No argument whatsoever from me about the physical costs.
posted by saulgoodman at 2:16 PM on March 23, 2011

Lesbians do this all the time.

Indeed, but I don't think US law actually prohibits them from going after the guys. Just their not being horrible people.

The variable is that the recipient of the donated egg/sperm has no expectation that the donor will provide financial support.

I think I disagree. If that were the variable, I think all three would be OK. In the contract there's no expectation, someone using a donor has no expectation, and someone having their baby "recalled" by some guy opting-out after the fact with a warning early in pregnancy also doesn't have an expectation that there will be financial support. Hell, they could pass a draconian law saying "men are NEVER responsible!" and make sure all the females hear it and call it good because now there's no expectation.

I think the real thing is "is that expectation fair?", and that's going to end up being a value judgement. There's a smooth progression through anonymous donor, mutual contract, post-hoc-opt-out, NEVER with "totally great" and "horrible" at ends of the spectrum. It's a messy issue.

The only other discrete difference I can work out is if the understanding could be guaranteed to be there before conception, making the first two OK and the last not. So that's where I stand, I think there should be no child support if the two agree ahead of time, but there's no opting out once you find out you've knocked her up.

I'll implement this after my coup d'etat.
posted by floam at 2:16 PM on March 23, 2011

The Chief Justice had to snap at him to make him shut up, and he's stammering and interrupting and sentence-fragmenting his way through the whole argument. It reads like he had way too much coffee this morning. I thought Bibas, on behalf of the respondents, did a much better job, and based on the overall response from the Justices, it seems likely to me that the judgment will be affirmed.

In appellate argument, "Sometimes you eat the bear ... and sometimes the bear eats you." One bad argument does not a bad appellate advocate make.
posted by Ironmouth at 2:17 PM on March 23, 2011

I think the real thing is "is that expectation fair?"

I think the "opt-out" people are really arguing that biology isn't fair and blaming the law on it.
Never, ever, ever, should a man be able to "opt-out" of a pregnancy. You have sex, you pay. Simple as that. Nobody made you do it. The fact that women cannot be forced to carry a baby to term has nothing to do with the male's responsibility for that child. I suspect that if there was an option where the guy could carry the kid instead, this would be more "fair." sans that we are left with the biology we have.
posted by Ironmouth at 2:20 PM on March 23, 2011 [1 favorite]

It is the difference between punishment and compulsion. Punishment is punitive in nature, it removes certain rights, it makes release impossible. Coercion in a civil matter is quite different. It is designed to compel, not punish. It is designed to effect the order in question. Therefore there is no Sixth Amendment issue at stake here, because there is no punitive, fixed punishment, only an attempt to enforce the court's judgment. You and I likely agree that the policy of placing such people is stupid and counter productive, but that does not mean it creates a criminal setting.

The problem is that the application of that rule in child support contempt proceedings is incredibly difficult; incarcerating a person who cannot pay is not coercive because there's no hope of the coercion being effective, even if the court claims the purpose is coercion. This isn't like being found in contempt for refusing to testify, where the incarcerated individual can end the incarceration by testifying. While he was in jail, there was nothing this man could do to get out because he didn't have the money to pay his child support. That's punishment, not coercion.
posted by Bulgaroktonos at 2:31 PM on March 23, 2011 [1 favorite]

"Never, ever, ever, should a man be able to "opt-out" of a pregnancy."

Didn't we as a society experiment with men "opting out" of pregnancy back when children born out of wedlock could not easily have their paternity determined, and basically women got "stuck" with any "illegitimate" children? It didn't really work very well back then.

I hate the word "illegitimate" applied to children even in a historical context, since it's not like the CHILD had any choice in the matter. /digression

Society HAS to provide for children. Currently the "preferred" model (if not necessarily the dominant model) is children supported by married parents. But there HAVE to be ways to provide support for children outside the "preferred" model, whether those are children of divorce or children of ill-considered one-night-stands or what have you. (And different societies through history come up with different models of supporting those children ... or relegating them to second-class citizenship.) This really, really isn't about the father -- and not really even about the mother -- it's about the child and the child's need for support. There are some biological realities, yes, that today mean the mother-to-be can terminate a pregnancy and the father-to-be cannot, but social realities also mean that the mother will end up raising the child alone far more often than the father will. Life isn't fair. But child support isn't about the parents; it's about the CHILD. Who, as a broad social rule, should be responsible for the child? I mean, really, if not the people who created it, who?

And, really, if people don't know that sex makes babies, sex ed in this country is way worse than I suspected. (I mean, really, I thought that's almost all we were teaching anymore: Having sex will get her pregnant, even if you use condoms! And you'll all get STDs from it!)
posted by Eyebrows McGee at 2:41 PM on March 23, 2011

In the transcript, Justice Sotomayor said: "one of the difficulties in this case is that there was really very -- no findings by the judge whatsoever."

Now I'm sure she's talking about it from the perspective of a Supreme Court justice called upon to make a determination (the judge that signed the order was really very lax), but it's a problem on a larger level as well. From what I understand, this is a case where the state wanted its money back from welfare payments. So the state has all of the resources here as far as going after the father and collecting payments. If the state can't get money from him, then they go to the court and the court throws him in jail. So the judge need do nothing other than hear from the state as to whether or not the man complied with the order, i.e. paid all of the child support. Then the judge rubber-stamps it and off he goes to jail. That is a ridiculous imbalance of power.

And just on a social justice level, this reveals yet another fundamental unfairness in the welfare system: fathers (and typically, men in general) are excluded from consideration. In this case, I'm assuming the mother had to receive state aid because she could not afford to provide all of the needs for herself and her children. She was poor. So the state steps in and helps her, which is great.

But then they target the father. Where is he supposed to get money? He is also poor. But he gets no help, only punishment. The state recognizes that both parents have an obligation to provide support for their children, but helps only one.

I think a more just system would help all poor people. If a parent is obligated to provide support for their children but they are too poor to do so, the community should step in. I don't see why it makes a difference if the parent has custody or not, since the child still needs support. As it is, throwing poor men in jail does not help support the child. It hurts the child, and prevents visitation, which is another right of the child.
posted by Danila at 2:47 PM on March 23, 2011 [7 favorites]

incarcerating a person who cannot pay is not coercive because there's no hope of the coercion being effective, even if the court claims the purpose is coercion.

In today's argument, work release programs were mentioned. It's an interesting read, albeit frustrating during Waxman's portion.
posted by Gator at 2:48 PM on March 23, 2011

In today's argument, work release programs were mentioned. It's an interesting read, albeit frustrating during Waxman's portion.

Work release programs can be a good option, but only for someone who has or can get a job. If you can't get a job when you're not locked up, you're not likely to get one when you are.
posted by Bulgaroktonos at 2:57 PM on March 23, 2011

The problem is that the application of that rule in child support contempt proceedings is incredibly difficult; incarcerating a person who cannot pay is not coercive because there's no hope of the coercion being effective, even if the court claims the purpose is coercion. This isn't like being found in contempt for refusing to testify, where the incarcerated individual can end the incarceration by testifying. While he was in jail, there was nothing this man could do to get out because he didn't have the money to pay his child support. That's punishment, not coercion.

Listen, I agree it is stupid, but you can't just act as if there's no difference for civil and criminal contempt, there is a huge difference from the legal standpoint.

More importantly, what does a lawyer do here? Nothing. If it is true he doesn't have the money, he argues what? He doesn't have the money, which is what the party being held in civil contempt is arguing.
posted by Ironmouth at 3:30 PM on March 23, 2011

More importantly, what does a lawyer do here? Nothing. If it is true he doesn't have the money, he argues what? He doesn't have the money, which is what the party being held in civil contempt is arguing.

Huh? A lawyer can argue that the defendant can't afford to pay the child support as ordered and he can present evidence on the the defendant's income, any public assistance benefits received, his necessary and discretionary expenses, employment status and history, any relevant medical and mental health conditions, and anything else that speaks to the defendant's ability to pay in the past, present, and future. He then asks that the judge retroactively set a new child support order at an amount he can afford (probably won't happen, but worth asking for) and offers to pay a set monthly fee that balances the responsibility of his client to pay child support and his client's need to not owe more money than he makes. A lawyer might ask that his client's driver's license be reinstated as long as he keeps up these set payments, so that he can get to work if public transportation is not reasonably available. If nothing else, a lawyer can request alternative sentencing in lieu of jail, including some kind of work release if applicable.

If the defendant admits he is guilty and has simply just been willfully ignoring his obligation to pay, the lawyer can do the same thing he would do in a criminal case: attempt to negotiate a deal for his client and ensure that he is treated fairly.

You're a lawyer (though I don't think in family law). If your brother or a friend called you and said he was being hauled into court in two hours for failure to pay child support and was being threatened with jail, what would you do? Obviously people who can afford them hire lawyers in this situation. Do the lawyers just come to court and say "yeah we give up?"

The reality is that a lot of people lack the ability to file a motion and supporting documentation to change a child support order, and even more people lack the ability to effectively argue that case, especially after being labeled as a "deadbeat" by society. In some areas, the state or county child support office might help request a modification if you come to them early, but that's not going to help with arrears you can't afford. If you can't afford a couple hundred bucks a month for child support, you can't really afford a couple hundred bucks for a lawyer either. Before we throw someone in jail, is it really that hard to give them a lawyer so they can effectively argue whatever, if anything, there is to argue?
posted by zachlipton at 4:18 PM on March 23, 2011 [4 favorites]

Listen, I agree it is stupid, but you can't just act as if there's no difference for civil and criminal contempt, there is a huge difference from the legal standpoint.

More importantly, what does a lawyer do here? Nothing. If it is true he doesn't have the money, he argues what? He doesn't have the money, which is what the party being held in civil contempt is arguing.

Well, many, if not most, states and some Federal courts have found a right to counsel for this proceedings, and the Supreme Court granted cert to this case to decide this issue, so saying "you can't act as if there's no difference" is not just high handed, it's wrong. People smarter than you or I are making that exact argument.

I've never done a child support contempt proceeding(my number didn't get called for that duty until my job ended), but I've done many lawyers who have. They do a lot. They explain what will happen at the proceeding, they advise the client about the likelihood of incarceration, they help the client gather documentation of work status, and they present the client's defense if he has one. Basically, they do exactly what lawyers do in any criminal case. Hearings are fairly rare, but they do happen, and lawyers know how to present evidence and make arguments in ways your average person can't, even when the issues themselves are not complicated legally.

Finally, as I mentioned earlier, a lot of what they do is give the non-custodial parent a feeling of some degree of power in the process. Imagine the situation: you're an unemployed man who owes child support, and has for years, you've probably been without a driver's license for most of those years. On the other side, you've got your ex, who you're probably not on great terms with, and a lawyer in a suit demanding that the judge lock you up. The government attorney is probably throwing around a lot of legal language you don't understand. The judge will ask you some questions, but there's a good chance you won't understand them either. You're alone.

Even if NOTHING changes about the proceeding, giving that person someone to help them understand the process, and to stand up for them at the hearing, is incredibly valuable. That's not an argument for it being a constitutional right, but it is an argument for it being a good public policy. At a minimum, we should want people to understand what's going on before we send them to jail; without a lawyer, huge numbers of people will not understand a contempt proceeding.
posted by Bulgaroktonos at 4:19 PM on March 23, 2011 [3 favorites]

I honestly don't know the answer to the question I'm about to ask: What happens in an intact family where the breadwinner parent loses their job? The whole family suffers financially, belts are tightened etc. Any aid they qualify for they get, without the stipulation that when their situation improves they will need to repay the food stamps, any health care costs etc? If there is aid, they just receive it with no strings, right?

But if the parents are no longer in the same household, the non-custodial parent who loses the ability to pay support is now a criminal? Or will we have to coin a new word; Civilnal?
posted by Jazz Hands at 7:31 PM on March 23, 2011

"but I've done many lawyers who have."

Am I reading this right or is it my mind? The dirt! Good for you!
Sorry ok--- being serious----

Absolutely, support the dads who are struggling financially. I think so far as parents being kicked out of their kids lives--- it's really tragic. Sometimes there is abuse and unfortunately it's very hard to prove what kind of abuse was happening if there are is no physical evidence.

If the mother is locking the 2 year old in the bedroom and leaving them there crying for two hours and feeding them stale milk or whatever--- I mean there are some things that are very hard to prove in court. If the father was stomping around with loaded guns ranting about the people he wants to off, or variously doing scary dangerous things it would be hard to prove in court.

Unfortunately, there is just no way the courts could do the kind of job with such situations they SHOULD hypothetically do. In general, I know that some portion of parents who refuse visitation to the other parents REALLY DO have genuinely good reasons. I also know for sure that some portion of parents that refuse visitation have absolutely no reason and just being hurtful and cruel. I imagine the larger portion of these situations are gray and I think that's why people are less likely to immediately throw strones at a parent withholding visitation--- while the idea that "parents should pay money for the well being of their children" seems a lot less gray.

So the dads who don't pay get a lot more judgement, both for disappearing and for not paying. (Meanwhile some portion of those dads are being blocked from visiting). And I think also there might be a prejudice because a lot of kids saw their dad walk out. Statistically more than saw their mom walk out. Moms can do it too and it's equally shitty.

Look if the dad can't pay it makes no sense to attack him any more than it makes sense to attack the mother for not having enough money for the child. Help the mom out--- then take a small amount of money out of BOTH their checks if they become more financially secure. Maybe?
posted by xarnop at 7:47 PM on March 23, 2011

And if someone is working under the table to keep from paying child support through garnishment, then they're obviously not paying taxes on it and at that point it does become a criminal case, doesn't it?
Try proving it. I used to work for a guy that very effectively reduced his child support payments to near zero by running his own business, paying himself such a low wage that he could justify paying next to nothing due to financial hardship, while funnelling all sorts of bills through the business and skimming cash out of the till. It's as common as dirt. Then fathers who do the right thing by their kids to the best of their ability (often living in poverty due to the crippling effect of the child support payments) get branded as deadbeat dads just the same.

It does occasionally happen that a woman claims to be infertile or on birth control as an inducement for a man to have unprotected sex with her when they are not.
You should assume that every time you have sex with a woman, she may become pregnant. Choosing to believe that someone is infertile for whatever reason is simply a piss-weak attempt at shrugging off your own responsibility. If you know how babies are made, you are responsible for ensuring that you don't accidentally make any. Yes, birth control can fail (even multiple concurrent methods sometimes all fail, as I know only too well) but, if that happens, you are responsible jointly with the other party. Trying to blame a woman for 'tricking you into getting her pregnant' is a complete arsehole act (not saying you personally would do that, but the inference from your comment is that 'women' do that).
posted by dg at 8:31 PM on March 23, 2011 [1 favorite]

Really? Because the transcript is now up, and he seems rather a bumbling oaf to me.

There's a big difference between a seasoned, well-practiced arguer who's having an off day and a bumbling oaf, and as Ironmouth noted, one bad argument does not a bumbling oaf make.

It wouldn't surprise me if Waxman lost his groove and had difficulty getting it back. It wouldn't be the first time, and he wouldn't be the only attorney and/or ex-Solicitor General who had this happen to him. On the current Court alone, at least three of the Justices (Ruth Bader Ginsburg, John Roberts and Elena Kagan), prior to their nominations to the Court, argued dozens of cases before the Court, and not every argument was a prizewinner.

As for bumbling oafitude...it is hard to find a better example than that set by the petitioner's attorney in Drye v. United States. Justice Rehnquist was not amused. Second runner-up would probably be Reno v. Condon, in which our pal Seth Waxman goes toe-to-toe with former South Carolina Attorney General Charlie Condon, who pretty much had his ass handed to him by the Justices. (The money quote is from Breyer, whose question Charlie would not [could not?] answer: "Never mind! I'll just ask Justice Kennedy later.")
posted by bakerina at 10:07 PM on March 23, 2011

What happens in an intact family where the breadwinner parent loses their job?

In that case the co-parents are a team and make decisions jointly for the whole team. THere is a belief in the good-faith effort of both parties to be looking out for the larger team and long-term goal of financial stability together. Basically, they are pulling on the same end of the rope.

Once the co-parents are no longer together there is no team to work for, each parent is then effectively looking out for themselves as there usually not the same level of trust that the other parent will make short-term sacrifices that only positively effect the other parent. In my jurisdiction for example, child support cannot be lowered because the non-custodial parent has decided to go back to school because lowering the immediately due child support does not guarantee that the parent will get a higher paying job and increase their child support. They may decide to become a professional student and avoid paying child support until the child(ren) age out (at which point to arrears are uncollectable).

That being said, I do know some co-parents that do still have good relationships and are flexible about child support deviating from the legal agreement, I also know a few abusive relationships where the custodial parent agreed to little child support or does not report arrears out of fear of violence and a few where the child support was not pursued in hope that the carrot of not expecting financial support would lure the other parent back to the relationship.

Personally, I believe the best system would be one where a government agency would provide the child support to the custodial parent at a fair rate and in a timely manner and collect from the non-custodial parent in a fluctuating manner based on their ability to pay so that neither child nor custodial parent knew the status of payments and that information would not cloud their access or relationship. But as an adult the child should be informed if the NCP did not pay so they can make an informed decision whether to continue the relationship.
posted by saucysault at 10:10 PM on March 23, 2011

It does occasionally happen that a woman claims to be infertile

My neighbour, a happily married woman, had cancer several years ago; desperate to have children saw several doctors who all said it was physically impossible for her to have children. As you can guess, she did conceive naturally and unexpectedly, much to her and her husband's joy. Fertility is NOT an exact science by any means and for each one of the trickster girlfriends out there "trapping" men into unwanted pregnancy there are hundreds, if not thousands of other women that got pregnant exactly when they did not think it was possible.

Seriously, child support is hardly a cash cow for many women since raising the child does actually cost money and limits their own ability to earn money, not to mention it is not necessary a reliable source of income.
posted by saucysault at 10:22 PM on March 23, 2011

I honestly don't know the answer to the question I'm about to ask: What happens in an intact family where the breadwinner parent loses their job? The whole family suffers financially, belts are tightened etc. Any aid they qualify for they get, without the stipulation that when their situation improves they will need to repay the food stamps, any health care costs etc? If there is aid, they just receive it with no strings, right?

But if the parents are no longer in the same household, the non-custodial parent who loses the ability to pay support is now a criminal? Or will we have to coin a new word; Civilnal?

I don't know much about how this all works, but here's my understanding. Correct me if I'm wrong.

The non-custodial parent is subject to a court order to pay a certain amount of support every month. If his circumstances change and he can no longer afford to do so, he promptly brings a motion in the same court that issued the original order to ask for a modification. To do so, he supplies an accounting of his financial situation to establish his inability to pay and to allow the judge to determine how much he can afford. In the ideal situation, the custodial parent comes to an agreement with the non-custodial parent and the judge simply signs off on it, but if they don't agree, the judge settles the matter. States usually have a preset formula, and then judges adjust the figure based on the circumstances. In some states and counties, the local child support agency will help parents with the procedures to request a change. Some states apparently have a minimum child support payment, such as the $250/month flarbuse describes above.

The problem is that judges almost never make changes retroactively. As such, if the non-custodial parent loses his job in January, racks up 10 months worth of debt, and is hauled into court in October, he might be able to get his future obligation reduced, but he's still considered a "deadbeat" for the thousands he is in arrears, regardless of his ability to pay.

The group of people who are most likely to fall behind on child support payments are relatively unlikely to be able to navigate the process of filing of a successful motion to change his child support order and they are even more unlikely to try to do so in a timely fashion. Here's the income and expense declaration (PDF) for California child support. It's clearly written to be as accessible as possible, but it's still a fairly complicated form. Here's the financial declaration form for South Carolina, complete with 20 footnotes. In order to have a fair shot at a modification, the non-custodial parent doesn't just need to complete this form accurately, he must be able to explain the circumstances to the judge and make a concise and clear argument why his various expenses are necessary and how his case should be handled in consideration with the state guidelines.
posted by zachlipton at 10:26 PM on March 23, 2011

one bad argument does not a bumbling oaf make.

Certainly, but it can a loser make. The justices aren't going to be thinking, "Gee, he's usually pretty sharp but he sure was having an off day today, we'd better cut him some slack when making our decision on this case." If you choke before the highest court in the land, that's likely to be the end of the story for your client.

Or will we have to coin a new word; Civilnal?

The word being used in this case is "contemnor" -- person who is in contempt of a court order. See also: "tortfeasor" -- a person who commits a tort (as opposed to a crime).
posted by Gator at 5:31 AM on March 24, 2011

You should assume that every time you have sex with a woman, she may become pregnant. Choosing to believe that someone is infertile for whatever reason is simply a piss-weak attempt at shrugging off your own responsibility.

Not to put too fine a point on it, but I think you are personalizing what was meant to be a point on an abstract principle. (Have we as a culture lost some part of our capacity for abstract reasoning recently or something? It seems to be getting harder and harder to raise or discuss points concerning abstract principles of any kind without getting the rhetorical equivalent of blank stares or one of those awkward, your-fly-is-open moments in response.) What I personally should do or believe is of course irrelevant; I'm happily married, have a family and don't sleep around. You don't need to save my soul here. And I wasn't talking about someone lazily choosing to believe that someone else might be infertile as a lazy rationale to "do the deed"; I have in mind specific cases I've known about in which young women knowingly plotted to seduce guys and conceive a child with them under the false pretense that they were on birth control or infertile with the intent of forcing the guys to marry them after an unexpected pregnancy. That actually does happen in a small number of cases. Young people of both genders are equally capable of being manipulative, selfish and irresponsible.
posted by saulgoodman at 7:33 AM on March 24, 2011 [1 favorite]

Seriously, child support is hardly a cash cow for many women since raising the child does actually cost money and limits their own ability to earn money, not to mention it is not necessary a reliable source of income.

Nobody here that I see is arguing there are hordes of sinister, child-support queens out there driving new Cadillacs due to their adroit manipulations of the family law system. The discussion here is really about specific ways SC family law (and I guess family law in other states more generally) puts fathers at an unfair legal disadvantage and perversely makes it harder for fathers who might be struggling financially to support their non-custodial children. It's also about whether or not it should be acceptable under any part of our legal process to incarcerate individuals indefinitely without the benefit of due process, and to a lesser extent, about how this area of law is complicated by certain hard practical realities of pregnancy and family relationships.

It's really getting scary how cozy people are getting with the idea that any part of the state should have the power to indefinitely incarcerate people without providing them access to due process (these questions are cropping up in other areas of our legal system as well with the whole issue of the indefinite detention of Bush's legal untouchables in Guantanamo). It's worrying to me, because there's also this commensurate, intensive private sector push to privatize prisons and monetize prison populations as an unpaid workforce; but as far as I know, this same dynamic doesn't apply to jails, which unlike prisons, aren't yet being billed as outsourcing's best kept secret.
posted by saulgoodman at 7:51 AM on March 24, 2011 [1 favorite]

I think the best protection against the rare materialization of the "trickster girlfriend" is to repeatedly make it clear to young men and boys in the most direct way possible that a very real outcome of sex is a baby for which they would be responsible. It might come off as harsh or rude, but education is probably the answer here.
posted by ODiV at 7:54 AM on March 24, 2011

This graph indicates the problem.

The correctional-industrial complex is now a vast make-work program (see also BHS) which cannot be dismantled without huge political cost. It's all deficit-financed, of course, and because the money is laundered through the private sector it can't be accused of socialism.

I don't know at what point, if ever, the American public will get a clue that spending unimaginable amounts of cash on prisons, armies, bail-outs, farm subsidies and foreign expeditions is no less 'socialistic' then spending the same money on schools, health and public infrastructure. Just because it passes through private hands doesn't mean the government isn't spending your money.
posted by unSane at 8:07 AM on March 24, 2011 [3 favorites]

This case is about people like me

Wrong, you are universalizing your experience.

When a non-custodial father is a day late or a dollar short, the media applies the pejorative label "deadbeat dad." When the custodial mother denies access to the children, what does the media call her?

If a mother did the same thing, and did not pay the court prescribed child support, she would be a deadbeat mom. If a mom prevented access that court ordered, she would be breaking a legal agreement.

I do not believe there is a pervasive 'double standard' to the extent that you believe. Perhaps that is a result of the media we choose to consume and the people we know and interact with.

I have personally known non-custodial fathers who paid their support promptly and fully for years on end while the mothers kept them from communicating with their children.

I am sure you have, and I am sure this happens. This is a serious issue, but is not the same thing a parent not paying child support.

I am sure many non-custodial parents at least give some thought to attempting to force the issue with the only means they see: stopping the flow of money.

I the term 'force the issue' was used. I have personally known this behavior to occur when one parent is being vindictive against the other. This just what I see, not saying it is true all of the time. How exactly will withholding money create a better relationship with the child?
posted by seesom at 9:57 AM on March 24, 2011 [1 favorite]

How exactly will withholding money create a better relationship with the child?

Well, if for example mom has a serious drug/drinking problem and refuses to let dad see his child out of spite (or to keep him from checking up on how mom is actually spending the money and looking out for the welfare of the child) then temporarily cutting off the flow of cigarette and beer money might seem like a reasonable way to try to bring some leverage to bear on the situation in the interest of the child.

If the father had some affordable legal recourse to get the courts to enforce visitation rights, then this might not be the case, but if it seems to be the only option you've got and you're genuinely worried about the well-being of your child because you don't trust your spouse (correctly or not) to put your child's interests first, I can see pretty easily how withholding money can be seen as a way to improve a non-custodial parents' relationship with their child. This was basically my cousin's situation, and take my word for it or not, I can assure you that this was exactly what motivated him when he got labeled a deadbeat dad and tossed in jail. Others in the family tried to warn him that he didn't understand how the law worked, but he was, as I've said, barely out of high school by this point, and he grew up in White City, Florida, so it's not exactly like he had the most sophisticated grasp of how the family law system works.
posted by saulgoodman at 12:15 PM on March 24, 2011

Oh man I finally have something post on Metafilter where I'm actually an expert and show up too late to even participate in the discussion. Well if anyone has any questions about how this works in CA or statistics on the issues I can answer them. I'm a child support analyst in CA and literally calculate and assit in prosecuting Non-Custodial Parents each and every day. There seems to be a lot of confusion on how the system actually works and perhaps things are different in South Carolina but based on federal regulations they can't be that different.

Couple of things I can clear up first:

Last time I was given the statistics it was around 85% of the cases are father to pay the mother or similar third party and the remiaing 15% are the other way around.

Once a parent goes to jail for failure to pay their ability to earn income drops to zero and therefore their ordered child support also drops to zero so it isn't in anyone's best interest to send people to prison for failure to pay. In every case where they are brought to court for contempt of their court order they are given multiple chances to change their pattern of not paying. I have never participated in nor heard of a single case where someone was sent to court without multiple hearings where people were brought to court and told exactly what they needed to pay in order to prevent themselves from going to jail. Again I can't speak for any other state that CA.

In CA most cases result in 3 days per contempt count with a maximunm of 10 days per contempt count. And you get one count per month that you failed to pay. Which means that in CA (as with most other states) you would need to not pay child support for over 3 years and have it be your third of fourth child support contempt in order to get more than a year in jail. Plus since these are civil hearings nobody serves even a third of their sentences once incarcerated.
posted by trojanhorse at 2:47 PM on March 24, 2011 [2 favorites]

Saulgoodman, what's the distinction between jails and prisons?
posted by Joe in Australia at 3:31 PM on March 24, 2011

I have in mind specific cases I've known about in which young women knowingly plotted to seduce guys and conceive a child with them under the false pretense that they were on birth control or infertile with the intent of forcing the guys to marry them after an unexpected pregnancy. That actually does happen in a small number of cases. Young people of both genders are equally capable of being manipulative, selfish and irresponsible.
I know of specific cases, also. I don't disagree with what you have said, but maintain that it is still equally the responsibility of both partners to avoid unwanted pregnancies and that males shouldn't necessarily assume that it's safe because the other party told them so, in the same way that females shouldn't accept 'don't worry, I'll pull out' as a reliable method of birth control. The best way to avoid unwanted pregnancies is for both parties to take full responsibility

Seriously, child support is hardly a cash cow for many women since raising the child does actually cost money and limits their own ability to earn money, not to mention it is not necessary a reliable source of income.
Well, this I disagree with. For a small sub-set of society (here, anyway), having children on a continual basis (often to several different fathers) is seen as an absolutely reliable source of income for females. We see this particularly in areas where the socio-economic factors are low and, in some of these areas, there are several generations of families who have repeated this pattern, just as there are several generations of families in the same areas where nobody has ever held a job. If you are prepared to accept a lower-than-average standard of living, you can get by comfortably on welfare payments and spacing a number of children out over the right period ensures you a continuing income with little pressure to support yourself. Add to that state-subsidised housing where the rent is tied to income and there isn't much incentive for people to break that cycle.

This may be different in the US but, here in Australia, welfare payments are pretty much seen as a right, whether you are an unemployed male or an unemployed single mother. Attempts to prevent this such as requiring single mothers to be either working or undergoing training for work once their youngest child reaches school-age have had little impact except to encourage people to have another baby once that happens so the entitlement continues for another 5-6 years. In most cases (my perception), the two factors of unemployed single mother and chronically unemployed father/s means that there is little capacity on the part of either parent to support children independent of the state. It's an incredibly viscous cycle and I don't see any real solution without fundamentally changing the way our society views welfare payments, which is a tough thing to do when the only people who can make real change rely on those same people to re-elect them.

Of course, there are many, many single parents who have found themselves in this situation without ever intending it to happen and, unfortunately, they are often branded the same way as those I mentioned above. I know this from my own experience. When a relationship goes bad, it's a nasty experience for those involved. When a relationship goes bad and there are children involved, it's worse by many orders of magnitude and the unfortunate victims are often the kids. However; putting a parent in jail because they can't/won't pay child support is even worse than depriving a child of access to both parents for any reason not related to the parent's inability to be an acceptable parent and simply sets up a scenario where things can only get worse for everyone.
posted by dg at 3:49 PM on March 24, 2011

Saulgoodman, what's the distinction between jails and prisons?

In California, a sentence of less than a year is in served in a jail (usually run by the county). Prison is for longer sentences (run by the state).
posted by rtha at 4:17 PM on March 24, 2011

Also, jails are also where you're held while you're still presumed innocent before your trail is over. Is there no jail/prison distinction in Australia?
posted by floam at 10:34 PM on March 24, 2011

trial
posted by floam at 10:34 PM on March 24, 2011

Floam: I don't know much about the prison system here, but I think that there are "police lockups" for the very short term, but people being held for longer periods are held in the general prison system - perhaps in a different section, but still the same system. Now that you've asked I'm interested, and I'll try to find out.
posted by Joe in Australia at 10:42 PM on March 24, 2011

The police use 'watchouse' facilities for things like locking up people who are arrested for public drunkenness and who are only going to be held for very short periods and for people who have been arrested but are awaiting an appearane in court. They are not veery comfortable places. Um, so I've heard.

As far as I know, there is no separation in terms of terms, but there is a clear separation between degrees of risk that prisoners pose to their own or others' safety and these range from minimum-security facilities which are pretty much voluntary detention (no fences etc) up to maximum security prisons. I'm also interested to see the result of your enquiries because I'm too lazy to look myself.
posted by dg at 6:08 AM on March 25, 2011

What others said up-thread on the difference between jails and prisons. Jails are short term and small-time; prisons are the big time.
posted by saulgoodman at 7:39 AM on March 25, 2011