Suit claims that indigent parents who could be jailed for not paying child support should get state-funded lawyers
Lawyers with the Southern Center for Human Rights on Tuesday sued state officials on behalf of indigent parents who fall behind on child support payments and are jailed without the benefit of an attorney.
The potential class action asserted that Georgia's use of civil contempt proceedings in child support cases has essentially created a new system of "debtor's prisons" in which hundreds of parents are, unconstitutionally, incarcerated indefinitely each year.
The suit, filed in Fulton County Superior Court, seeks the immediate halt of the practice until the state provides attorneys for individuals who cannot pay for their own. It also asks for an order mandating "appropriate further systemwide remedial relief to ensure defendants' future compliance with their legal and constitutional obligations."
The named defendants include Gov. Nathan Deal; Clyde Reese III, the commissioner of the Georgia Department of Human Services; Keith Horton, director of the Division of Child Support Services; and the directors of the Rome, Alapaha, Middle Swainsboro and Alcovy Monroe child support offices.
Lauren Kane, a spokeswoman for Attorney General Sam Olens, said the Law Department had not yet been served with the suit and would have no comment.
"Parents should support their children, and they've got an obligation to do that," said Sarah E. Geraghty, who filed the suit along with fellow Southern Center attorneys Gerald R. Weber Jr. and Atteeyah E. Hollie.
"But we also need to ensure fairness in cases in which a person is at risk of losing his liberty," she said.
Randall M. Kessler, the chair-elect of the American Bar Association's Family Law Section, said the case reflects "the age-old dilemma."
"Somebody doesn't have enough money to pay child support, and they also don't have enough money to pay for a lawyer, so they go to jail."
"I'm glad to see this, because it ties in with the ABA's support of 'civil Gideon,'" Kessler added, referring to the ABA's House of Delegates' adoption last year of a resolution calling for the appointment of a lawyer for low-income people when basic human rights are at stake.
"There was a big debate about that in the Family Law section, and whether it should apply to custody cases, parental rights," said Kessler.
"In a perfect world, everybody would have a lawyer—a good lawyer," said Kessler. "The flip side is that, sometimes people just won't pay their child support," he said. "I've told people, 'You can't pay my client's child support? Bring your toothbrush to court.'"
Karlise Y. Grier, who has been a part-time hearing officer with the Fulton County Superior Court's Family Division, said she saw many of those cases.
"A court must find that a person is in 'willful' contempt of the court's order," she said. "If the person simply cannot afford to pay, the court has the discretion to find that the person's non-payment is not willful, and therefore not a contempt of court.
"There were times, however, in my personal experience in which a person claimed they did not have the money to pay, but they were somehow able to access the money when faced with possible incarceration," noted Grier.
"As an advocate on access to justice issues," she said, "I have encouraged judges and attorneys to consider whether the law needs to change so that in some limited civil cases, a party should be entitled to court-appointed counsel, if the party is unable to afford counsel."
The Southern Center complaint noted that in the U.S. Supreme Court's 1981 decision in Lassiter v. Department of Social Services, 452 U.S. 18, "fundamental fairness" provides that "the right to counsel presumptively applies in any proceeding, civil or criminal, that could lead to incarceration."
The complaint said that 22 appellate courts at the federal level and in other states have held that an indigent defendant has a constitutional right to counsel in civil proceedings that could result in incarceration. And, it said, the Georgia Court of Appeals in 2003's Merritt v. State, 583 S.E. 2d 283, "has similarly held that the right to counsel 'applies to a contempt hearing that … results in a sentence of incarceration.'"
The use of civil contempt in child support actions is "nominally coercive effort to coerce payment" from noncustodial parents, not to punish them, said Geraghty. "But these cases are contrary to the purpose of civil contempt, since that coercive effort cannot be served when a parent has no money."
According to figures from the federal Office of Child Support Enforcement cited in the suit, 70 percent of child support debt in the United States is owed by non-custodial parents with no quarterly income or with less than $10,000 in annual income.
Geraghty said that jailing someone who has no money to pay back child support only exacerbates the problem for all concerned, since the incarcerated parent is not only unable to work, but other children, parents or family members may also suffer.
The suit also notes that under federal welfare law, custodial parents receiving Temporary Assistance for Needy Families benefits must sign over their right to collect child support to the state.
"In many jurisdictions, the state goes after those TANF benefits immediately, so they're essentially using the child support system to recoup welfare debt from non-custodial parents, so not all of the child support they collect even goes to the children," she said.
According to the complaint, nearly half of all U.S. child support debt is owed "not to custodial parents, but to the government. The goal of recovering welfare costs incentivizes the state to aggressively pursue collections from the poorest parents, rather than from middle and upper income parents who do not rely on welfare."
In July 2010, the center requested information from Georgia's sheriffs as to the number of inmates held on civil contempt charges. Out of 159 counties, 135 responded; in what Geraghty terms a "one-day snapshot," 526 inmates were incarcerated on civil child support contempt charges.
Geraghty also raised the issue of paying for the contempt actions. In addition to the cost of keeping the parents in jail, the state also spends millions on specially appointed attorneys general—private attorneys paid by the state—to prosecute the cases.
In response to a query from the Daily Report for figures relating to child support prosecutions, the office of the attorney general provided figures showing that, for fiscal year 2010, the state paid more than $13.7 million to SAAGs working for the Division of Family and Children Services.
A spokeswoman for the Georgia Department of Human Resources said that the child support division collected and distributed $650 million in fiscal year 2009 and $675 million in fiscal year 2010.
Today the U.S. Supreme Court is slated to hear arguments on similar issues in a South Carolina case.
The case involves a South Carolina man, Michael Turner, who was found in contempt and sent to jail after he became nearly $6,000 behind on court-ordered payments of $60 a week, his fourth such incarceration.
Turner's pro bono lawyer filed an appeal arguing that the jailing violated Turner's Sixth Amendment and the due process clause rights to appointed counsel. The South Carolina Supreme Court affirmed the lower court's order that Turner's civil contempt jailing was "a classic civil contempt sanction" and did not violate his rights.
The Southern Center suit acknowledged the pending case, noting that "[w]hile Turner may resolve some of the federal constitutional issues raised in this complaint, questions of construction of the state constitution are strictly matters for the highest court of this state."
"In the meantime," it said, "the state continues to incarcerate, on a daily basis, hundreds of destitute parents without affording them the right to counsel."

The case is Miller v. Deal, No. 2011cv198121.