While thousands of Southern Carolinians struggle to find jobs and shelter amid the coronavirus pandemic, advocates are concerned that instability will interfere with child support and custody procedures, or even put unemployed parents behind bars.
The family court system in the state of Palmetto, as across the country, prioritizes safe homes and capable parents when deciding where children should stay. Parents who “intentionally” miss child support payments – a vague term that judges often need to evaluate for themselves – may have their children’s custody removed or even sent to serve time behind bars.
Tim Mose, director of alimony services in the SC Department of Social Services, said the agency has seen “no significant changes” since the pandemic began, with more than half of parents paying on a consistent basis. DSS processes payments, while the courts determine and guarantee them.
The federal coronavirus aid project has strengthened resources for unemployed Americans, Mose said, but he also credits the new DSS collection procedures for increasing fiscal year revenue by 13 percent.
“We don’t want to impose, we want to be a resource,” said Mose. “The new system is working, our team is working, although many of the courts have been closed.”
But South Carolina has seen high unemployment rates since the start of the pandemic, with about 13% of residents late in paying their rent or mortgage. Sectors such as tourism and restaurant work were the hardest hit.
Kate Weaver Patterson, who heads Root & Rebound’s SC Second Chance Justice Collaborative, said she was disappointed at how often courts ignore the ability to pay for analysis or end up setting a fee that is still too high for their clients. Root & Rebound is a non-profit organization that provides legal defense for families with imprisoned parents.
“(Judges) charge the minimum wage, even if (the parents) earn below the minimum wage,” said lawyer Anna Walker. “And just entering the court is an additional financial burden. … it’s $ 150 to file, and you have to pay a movement fee. “
In November, the state appeals court rejected the appeal of a mother who had lost the rights of her three children after the state placed them in custody several times. After an unemployment crisis and delays in paying child support, she got a job. But a family court judge decided that her new job showed that she was able to get a job all the time, so she was deliberately avoiding payments.
They are especially concerned about parents who suddenly lost their jobs during the pandemic. Although parents have the right to inform the courts of a change in income, it can take months to schedule a hearing.
“The system was not configured to understand the realities of poverty,” said Alison Elder, a researcher at Equal Justice Works. “In a perfect situation here, you have a client who goes to court, there is a payment analysis capability and the judge hears what they need to rent and keep the car running, and they set a level of alimony that is doable . “
But judges are often overwhelmed by several of these hearings at the same time, and parents do not always know how to argue their cases. Although prison terms are a real possibility for parents who are late in payment, they are not entitled to a free lawyer because it is not a criminal trial.
Much of the basis for this concept was maintained in 2011, when the case of a South Carolina family was referred to the United States Supreme Court under the case name Turner v. Rogers.
A family court judge in Oconee County ordered Michael Turner to send Rebecca Rogers $ 51.73 each week to support the son they had together. But Turner often went unpaid, leading to five times the court found him out of contempt.
For four of the contempt findings, he paid what he owed – the last few days after the start of a 90-day sentence.
The fifth time, Turner did not pay and served six months behind bars. When he emerged, he owed $ 5,728.76 in late pension payments and the family court clerk issued a new order to show the cause, according to court records.
The judge dismissed Turner as intentional contempt, according to a US Supreme Court finding, and sentenced him to a year in prison without making any official decision on whether he had been able to make payments.
Turner served his sentence and filed a petition with the SC Supreme Court, saying he should have received a lawyer. Neither he nor Rogers had money for a family court lawyer, and since no one had been charged with a crime, they were not automatically entitled to representation, as would be the standard for poor defendants in criminal trials.
The state Supreme Court rejected Turner, saying the Sixth Amendment did not apply to family court cases. In a 5-4 decision, the US Supreme Court agreed, with some hesitation.
According to the majority opinion, the 14th Amendment due process clause does not automatically require the state to provide a lawyer just because a person faces imprisonment and cannot pay a private lawyer, especially when the other party is not represented either. This is particularly relevant when the state has other safeguards, such as a fair chance to argue that it cannot pay the fees.
Nor does the jurisprudence give a clear answer, argued the majority opinion: the ability to pay as ordered is what divides civil and criminal contempt, the opinion says, therefore, an imprecise analysis of a person’s finances can mean unfair imprisonment.
But since the judge never formally concluded that Turner had money to pay, and was not informed that arguing this point would be his primary defense, the majority of five judges still considered his incarceration to be in violation of due process laws.
The discovery was not a major victory for South Carolina’s poorest parents, according to Root & Rebound experts.
“If you’re going to arrest people for civil contempt, then a lawyer should be required to do that,” said Walker. “They are just people trapped in a cycle of poverty, and poverty is exacerbated by the pandemic.”