Its amazing how one court can see an issue so different than anothe court.
Found on www.news-record.com and brought to you by Lawyer Salinas
Friday, March 25, 2011
When someone can be sent to jail indefinitely, without being convicted of committing a crime, he needs a lawyer.Far too many “deadbeat dads,” and a few moms, find themselves in that position. They can be held in contempt of court for failing to pay child support and kept behind bars until they come up with some money — no matter how long it takes.
Nearly two decades ago, the N.C. Supreme Court ruled those delinquent parents are entitled to a lawyer, at state expense if they can’t afford one themselves.
The Supreme Court in South Carolina takes the opposite view. It ruled last year that a man imprisoned for contempt “holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty” because he can go free as soon as he complies with the court order. Therefore, the state has no obligation to provide him with an attorney. The South Carolina case was appealed to the U.S. Supreme Court, which heard arguments Wednesday.
Deadbeat parents aren’t popular. Failing to support their own children not only is irresponsible, it contributes to higher rates of poverty and deprives kids of basic necessities or forces taxpayers to make up the difference. These cases also consume tremendous resources in court.
“I can have as many as 200 cases in a day,” Guilford County District Court Judge Tom Jarrell said. “It’s a grind.”
So the idea of providing attorneys at public expense to spare delinquents the inconvenience of jail time isn’t appealing. But it’s required under the U.S. Constitution’s 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law,” the N.C. Supreme Court said in McBride v. McBride in 1993. Due process includes a lawyer.
To issue a contempt citation, a judge must find that the individual could pay but refuses. Many other tools can be used before that point is reached: The court can garnish wages, unemployment checks, veteran’s benefits or other income; intercept tax refunds; or order sale of assets.
Still, “Contempt is used a lot in North Carolina,” said Wendy Sotolongo, parent representation coordinator for the state’s Office of Indigent Defense Services. “It’s probably the biggest tool used by the courts.”
It’s effective, said Jarrell, when it’s used to coerce compliance rather than to punish. When sending someone to jail for contempt, he said it’s important to set attainable requirements. “I try not to set them up to fail. I try to give them a very real incentive to get on board with child support. More often than not, you end up collecting money.”
A lawyer can help make sure proper procedures are followed and there’s sufficient evidence to show failure to pay is willful, Cheryl Howell said. She’s a professor of public law and government at UNC-Chapel Hill who provides training for judges on child support issues.
When parents simply can’t pay, jail doesn’t help, and it sticks taxpayers with the cost of incarceration. For parents who won’t pay, jail might be the right remedy. Before that happens, however, the assistance of counsel is a good idea. A lawyer might even help his or her client work out a plan to start paying and stay out of jail.
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