On any given day, hundreds of Georgians are in jail for failing to pay child support.
Family law attorneys say many of these "deadbeats" are right where they belong. They have been found in willful contempt of court for repeatedly refusing to pay their child support, failing to try to find work or hiding their income and assets.
But many parents are being jailed even though they have no ability to pay, creating modern-day debtor's prisons, according to motions being filed in Georgia courts. The state should provide lawyers to indigent parents for their civil-contempt hearings to ensure due process, the filings say.
Leah Ward Sears, former chief justice of the Georgia Supreme Court, spells out the complexity of the issue.
"There are a lot of kids out there with parents who just don't pay, and for every dollar they're not paying someone else has to pay," Sears said. "Too often it's the taxpayer. They're taxing the court systems that have to process them and taxing the jails that have to house them. They tax the welfare rolls. It also forces extended families — grandmothers and grandfathers — to pay."
But it is illegal to incarcerate someone who has no ability to pay, she added. "We don't believe in debtor's prisons in this country, and that's what we're doing here in some cases."
The U.S. Supreme Court will consider the issue in March, when it hears an appeal from a South Carolina man who was jailed for a year for failing to pay child support. South Carolina, like Georgia, is one of a few states nationwide that do not provide lawyers to indigent parents facing contempt hearings for failure to pay support.
The high court's ruling could change the way Georgia's courts handle child-support contempt cases and hit the state's budget.
North Carolina, for example, has been providing attorneys in child-support cases since a 1993 court ruling required the state to do so. Last year, North Carolina paid more than $3 million to appointed lawyers in child-support cases, Wendy Sotolongo, the state's parent representative coordinator, said.
Emotions run extraordinarily high in cases involving custody and support; angry ex-spouses often are all too happy to see the other parent jailed, and judges, weary of excuses from deadbeats, often oblige them.
In Georgia, after finding a parent in contempt, judges set a "purge fee," which is typically below the amount of child support that is owed. If the parent can pay the purge fee, he or she can avoid being sent to jail.
Over the past decade, 3,612 people — each serving an average of 127 days — were incarcerated in Gwinnett County for failing to pay child support, according to jail records.
"We've seen some who've been jailed come up with $15,000 to $20,000 in a couple of days," Sheriff Butch Conway said. "Some will languish for months and not be able to come up with $100 to $200. Some can't pay it but, sadly, I think some do have the money but just don't want to pay."
Randy Miller, a war veteran from Marietta, sits in a Floyd County jail facing a $3,000 purge fee he can't pay, he said in a statement provided to The Atlanta Journal-Constitution by his lawyers.
When Miller, 39, lost his job as an AT&T service technician in 2009, he struggled to keep up with his $452-a-month child support payments for his 16-year-old daughter. He eventually saw his home go into foreclosure and wound up with only 39 cents in the bank, according to court records. In November, he was jailed for four months for failing to pay an estimated $4,400 in child support.
"My biggest concern right now is finding some work," Miller said, noting his child-support bills are growing because of his incarceration.
Miller said he may try to re-enlist in the military when he gets out of jail as a way to secure a more consistent income, but worries he might be too old.
His lawyer, Sarah Geraghty of the Southern Center for Human Rights in Atlanta, said everyone agrees that parents must support their children. "But we can't go around locking up indigent parents because they are too poor to pay the full amount owed."
Doug Slade, an attorney who represents the state Office of Child Support Services and asked Miller be found in contempt, has said Miller is incarcerated for failing to comply with a court order.
"Our job is to seek to take care of the best interests of the child," he said. "It seems people are often more concerned about the parent who has the ability to work but is not and consequently is not taking care of the child."
Last year, the Southern Center filed Open Records Act requests with county sheriffs to find out how many parents were jailed statewide for failing to pay court-ordered child support. The center, which heard back from 135 of the state's 159 counties, found that 526 parents were incarcerated statewide.
"The people we see in jail are not wealthy ‘deadbeat' dads," Geraghty said. "They are often working people who have lost jobs and become totally indigent."
In 2009, Geraghty obtained the release of Frank Hatley, a South Georgia man who had been jailed for more than a year for being too poor to pay child support — even though the judge and the state attorney who brought the contempt charge knew Hatley was not the boy's father. Hatley should have been provided counsel at his initial contempt hearing, Geraghty said.
On March 23, the U.S. Supreme Court will hear the case involving Michael Turner, who was jailed for a year after being found in contempt for not paying more than $5,700 in his child-support for his daughter. Turner told the judge he had been addicted to drugs, and he broke his back when he finally got a job. "Now I'm off the dope and everything," he said. "I just hope that you give me a chance. … I know I done wrong."
In its ruling last year, the South Carolina Supreme Court distinguished between civil contempt child-support jailings, whose purpose is to coerce compliance with court orders, and criminal contempt sanctions, which are punishment for disobedience and disrespect. A parent such as Turner "hold[s] the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do," the court said.
Turner, now represented pro bono by the a number of lawyers, including former U.S. Solicitor General Seth Waxman, wants the U.S. Supreme Court to overturn the South Carolina court's ruling.
When a parent lacks the ability to pay, jailing the parent is merely punitive — and illegal — Turner's lawyers said in court filings. The state has no interest in maintaining "a de facto debtors' prison for [parents] who genuinely cannot pay. … As a matter of fundamental fairness, Turner should have been afforded the assistance of counsel to show that he could not [pay]."
This month, the U.S. Justice Department disagreed, telling the high court that Turner did not have a categorical right to counsel. But the agency's brief said the South Carolina decision should be overturned because parents need to be given a more meaningful opportunity to show they can't pay. Such procedures could include requiring parents to complete an understandable form disclosing their personal finances, the Justice Department said.
Seth Harp, who chairs the Georgia Child Support Guidelines Commission, said a U.S. Supreme Court ruling requiring lawyers for indigent parents "could devastate our system."
"We don't pay enough now for the defense of our criminals," said Harp, a former state legislator. "If there's no money for lawyers in child-support cases, then the possible result could be the end of the threat of jail time. And there are many people who deserve to go to jail."
Harp acknowledged that the recession has resulted in increased numbers of parents being hauled into court facing contempt. "I recognize many have lost their jobs, literally exhausted all their efforts to find work, exhausted their employment benefits," he said. "And I also know courts will often err heavily against the parent who's being brought into court. The philosophy is, ‘We've got to take care of the children.'"