Lawsuit: State should provide lawyers for delinquent child support payers

Georgia parents incarcerated for failing to pay child support should have attorneys appointed to their cases, according to a lawsuit filed Tuesday in Fulton County Superior court.

The Southern Center of Human Rights said in the suit the state had a system of “debtors prisons” in which parents unable to pay child support are held for weeks, months and years because they have lost their jobs or are disabled and unable to work.

“This case is about good, hard-working parents who love their children but are carted off to jail when they fall behind in their child support payments often through no fault of their own,” said attorney Sarah Geraghty.

The lawsuit carries the names of six men but the attorneys are asking for “class action status,” which means it would apply to many more in the same circumstances. The suit asks that the state pay for attorneys for these parents just as they would for anyone charged with a crime and facing jail or prison time.

“The law of the land is an indigent person must be afforded counsel if their freedom is threatened,” Geraghty said.

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“People in Georgia who are found in criminal contempt have the right to counsel and may be incarcerated for no more than 20 days,” Geraghty told The Atlanta Journal-Constitution. “Parents charged with civil contempt are routinely jailed indefinitely for weeks, months or years without a lawyer.”

On Wednesday, the U.S. Supreme Court will hear 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.

Seth Harp, who chairs the Georgia Child Support Guidelines Commission, has said the cost of requiring lawyers for indigent parents "could devastate our system."

"We don't pay enough now for the defense of our criminals, " Harp, a former state legislator, told the AJC earlier this year. "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.' "

The six men named in the suit filed Tuesday are all unemployed for various reasons. Some have been in jail multiple times because they were unable to pay a court-established “purge fee," which is typically below the amount of child support owed. The parent can avoid jail if that payment is made.

“This civil rights lawsuit is brought to remedy the state of Georgia’s persistent failure to guarantee legal representation to indigent parent who face incarceration in child support contempt proceedings,” the lawsuit said. “Plaintiffs are indigent parents who have been jailed without counsel for being too poor to fulfill their court-ordered child support obligations. Some … have serious physical disabilities. Others have spent months looking for work, only to find none. All are destitute, but all have been or likely will be incarcerated pursuant to civil contempt orders that condition their release on payment of enormous ‘purge fees.’”

None had attorneys when they've been called to court.

Three of the plantiffs are veterans who had good payment histories until they lost their jobs, one because of a disability and the other two because of the economy.

When war veteran Randy 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. His monthly payments for his two daughters total $862.52.

"My biggest concern right now is finding some work, " Miller said earlier this year, noting that 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. He was released from the Floyd County Jail on Feb. 14 .

Another plantiff, 20-year-old Joe Hunter, is in the Walton County Jail for the third time. He could be released if he paid a $250 purge fee, according to the suit.

Reginald Wooten, 36, lost his job at an Adel factory. H was jailed three times in a year not making his support payments of $300 a month and he could be jailed again soon for not making his $300 payments, according to the suit. He is homeless.

Gregoy Carswell of Swainsboro, was a tractor driver who worked road construction. The suit said he made his $371 monthly payments until he was injured in 2007. He has had other jobs since but was injured again. He collects $230 a week in unemployment benefits. The state has filed documents with the court asking that he be jailed if he does not pay the $12,450 owed in back payments.

The suit said the men cannot pay their financial obligations to their children if they are in jail and unable to work.

The have “all made efforts to fulfill their child support obligations,” the suit said. “But for reasons entirely out of their control, they cannot.”

-- Reporter Bill Rankin contributed to this report.

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