Court: No right to counsel for poor parents jailed over child support

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Court: No right to counsel for poor parents jailed over child support

Poor parents who have been jailed because of failure to pay child support do not have a “categorical” right to a lawyer provided by the public, the Georgia Supreme Court ruled on Friday.

The court, ruling 6-1, said the parents are parties to a civil action who were jailed for contempt of court, and the Constitution does not guarantee them the free legal defense afforded to indigent criminal defendants. (Parents who fail to pay court-ordered support face a contempt citation for violating the judge’s order and may be jailed. They often are poor — most cannot, after all, pay child support — and can’t afford a lawyer.)

The ruling came in a case filed in Fulton County by five indigent men who had been jailed for not paying support. One spent a year behind bars, while another was jailed five times, court papers said. They were represented by attorneys from the Southern Center for Human Rights in Atlanta.

“Georgia is one of just a few states in the country to deny the right to counsel under the circumstances presented in this case,” Sarah Geraghty, a lawyer for the Southern Center, told The Atlanta Journal-Constitution in an email Friday. “It’s fundamentally unfair to require indigent parents to plead for their liberty without counsel against trained, state-funded attorneys trying to send them to jail.”

Geraghty said the case showed that more than 3,500 people were locked up across the state for failure to pay child support in 2010 and 2011.

Justice Keith Blackwell, writing for the majority, quoted from a U.S. Supreme Court ruling: “Aside from ‘criminal prosecutions or proceedings functionally akin to a criminal trial (the court) has never found in the Due Process Clause a categorical right to appointed counsel.’”

The plaintiffs include Randy Miller, an Iraq War veteran who, according to his appeal to the Supreme Court, had paid $75,000 in child support but ended up jailed for three months after his payments lapsed.

“He lost his civilian job of 10 years due to performance issues related to the stress of returning from service in Iraq and deaths of several family members,” the petition said. “He continued to make partial payments after he lost his home to foreclosure and could no longer afford utilities. At a one-sided hearing against a Special Assistant Attorney General, he was jailed, though he had 39 cents in his bank account at the time he was incarcerated.”

Justice Blackwell concluded that, depending on the circumstances of the case, a parent facing jail for failing to pay child support might be eligible for a court-appointed attorney, but that no such “categorical” right exists.

The five “named” plaintiffs and 55 others had sought certification to pursue a class action. The Fulton County Superior Court granted the petition, but the Georgia Court of Appeals reversed the lower court, saying the group did not meet the requirements for class certification. The Supreme Court affirmed that ruling.

“Whether any particular parent is entitled to a lawyer at government expense depends always, we think, on the particular and unique circumstances of his case, including the complexity of the case, as well as the extent to which alternative measures might be employed to ensure that the proceeding is fundamentally fair,” Justice Blackwell wrote.

Remarkably, the high court also found that the Court of Appeals came to the right ruling for the wrong reasons.

“The Court of Appeals premised all of its conclusions on a fundamental misunderstanding of the constitutional right to counsel,” Blackwell wrote. “The Court of Appeals seems to have assumed that the named plaintiffs … all have a constitutional right to appointed counsel in civil contempt proceedings of the sort about which the plaintiffs complain.”

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