Those at risk of going to jail for failure to pay child support should be provided with lawyers if they can’t afford representation, an attorney told the Georgia Supreme Court on Monday.
Sarah Geraghty, an attorney representing five fathers, asked the justices to establish a right to counsel for indigent parents when they face incarceration and are opposed by state attorneys representing the Department of Human Services. Otherwise, she said, the unrepresented parents must plead for their liberty in unfair court proceedings.
Such a right would carry economic significance for state taxpayers. Each year, thousands of Georgia parents are jailed for failing to pay child support in civil-contempt proceedings.
On Monday, the court’s justices considered whether the lawsuit filed by the five fathers could be joined by thousands of other parents facing similar situations. In December 2012, Fulton County Superior Court Judge Jerry Baxter granted the lawsuit class-action status, but the Georgia Court of Appeals overturned that decision. The state Supreme Court is now reviewing the issue and should issue its ruling in the coming months.
Randy Miller, an Iraq war veteran, is the lawsuit’s lead plaintiff. Over almost 15 years, Miller paid about $75,000 in child support for his daughter, but he could only make partial payments after he lost his job as an AT&T service technician in 2009, court filings say. By the time he was jailed for three months for failure to pay, Miller had lost his home to foreclosure and had only 39 cents in his bank account, the suit says.
Nationwide, at least 33 states provide counsel in civil-contempt proceedings, which use the threat of jail time to compel deadbeat parents to come up with the money they owe to support their children.
In 2011, the U.S. Supreme Court ruled there was no automatic right to counsel for people charged in such proceedings. That ruling, involving Michael Turner of South Carolina, said states should provide notice to parents, letting them know their failure to pay child support is a critical issue. States also should provide forms to parents so they can give detailed financial information to the court, the ruling said.
Mark Cicero Sr., a lawyer for the state Attorney General’s Office, said Georgia began complying within five days of the Turner ruling.
Cicero estimated that only 4.5 percent of all parents facing child support contempt hearings wind up being incarcerated. “That shouldn’t be surprising because that isn’t the goal,” he said. “The goal is to obtain the money.”
Justice David Nahmias noted that all of the courts that established the right to counsel for indigent parents in their own states did so before the U.S. Supreme Court issued its ruling in Turner’s case. The Wyoming Supreme Court, the only state court to address the decision since Turner, rejected the claim that the risk of jail time required counsel in such proceedings, Nahmias noted.
In Turner’s case, however, there was no lawyer representing the opposing side. And the high court noted this distinction in that opinion, saying it was not addressing civil-contempt proceedings when the child support is owed to the state and when the state is likely to be represented by counsel, Geraghty said.
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