Earlier this week, we began a discussion of the court cases against parents for their failure to pay child support. Because these are civil matters, there is no constitutional requirement that defendants be provided an attorney for their hearings, as there is for criminal cases. However, the hearings often result in a jail sentence or other negative consequences for indigent defendants who are unable to make their child support payments, which advocates claim is unfair and possibly even unconstitutional.
Federal law requires that defendants must have “willfully” violated a court order in order to be sentenced to jail. However, for the majority of defendants who are incarcerated for their failure to pay child support, the violation of their child support order was in no way willful. For many, unemployment or poverty has rendered them unable to make child support payments, despite their desire to do so.
Five states – Georgia, Florida, South Carolina, Ohio and Maine – do not provide indigent defendants with an attorney, despite the potential consequence of jail time. This, the lawsuit claims, is unfair and exceedingly harmful. “Languishing in jail for weeks, months, and sometimes over a year,” the suit states, “these parents share one trait besides their poverty: they went to jail without ever talking to an attorney.”
Recently, the American Bar Association approved a resolution urging all state and local governments to “provide legal counsel as a matter of right at public expense to low-income persons in adversarial proceedings where basic human needs are at stake,” such as child support. However, because family law is primarily a product of state law, each state government must enact laws to this effect.
What do you think? Should low-income parents be provided an attorney before being sentenced to jail for failure to pay child support?
Source: MSNBC, “Unable to pay child support, poor parents land behind bars,” Mike Brunker, Sept. 12, 2011