SC specialists fear pandemic will harm custody for unemployed dad and mom | Information
With thousands of South Carolinians struggling to find work and housing amid the coronavirus pandemic, lawyers fear the instability could affect child support and custody procedures or even land unemployed parents behind bars.
The Palmetto State family court system, like that nationwide, prioritizes safe homes and able parents when it comes to where children should stay. Parents who “deliberately” miss child support payments – a loose deadline that judges generally have to assess for themselves – can have their children lifted or even sent to prison for prison terms.
Tim Mose, director of childcare services for SC’s social services division, said the agency had not seen any “significant changes” since the pandemic began, as more than half of parents have consistently paid on time. DSS processes payments while the courts set and approve them.
According to Moses, the federal coronavirus alleviation law has strengthened resources for unemployed Americans, but he also credits DSS’s new survey procedures to increase the fiscal year survey by 13 percent.
“We don’t want to prevail, we want to be a resource,” said Moses. “The new system works, our employees are working, although many courts have been closed.”
But South Carolina has had high unemployment rates since the pandemic began. An estimated 13 percent of residents are in arrears with rent or mortgage payments. Sectors such as tourism and restaurant work were particularly hard hit.
Kate Weaver Patterson, director of Root & Rebound’s SC Second Chance Justice Collaborative, said she was disappointed with how often courts either skim the ability to pay for analytics or end up setting a fee that is still too high for their clients . Root & Rebound is a not for profit organization that provides legal assistance to families with imprisoned parents.
“(Judges) assume the minimum wage, even if (parents) fall below the minimum wage,” said lawyer Anna Walker. “And just going to court is an additional financial burden. … It costs $ 150 to submit, and you must pay an application fee. “
In November, the state appeals court denied a request from a mother who lost the rights to her three children after the state fostered them several times. After a spell of unemployment and late maintenance payments, she got a job. However, a family court judge ruled that her new job showed that she was able to get a job all along and that she had purposely avoided payments.
They are particularly concerned about parents who suddenly lost their jobs during the pandemic. While parents have the right to notify courts of a change in income, it can take months before a hearing is scheduled.
“The system is not designed to understand the realities of poverty,” said Alison Elder, an Associate at Equal Justice Works. “In a perfect situation, you have a client going to court, there is an option to pay for analysis, and the judge listens to what he needs for the rental and to keep a car going, and he puts one Maintenance level for children firmly feasible. “
But judges are often burdened with multiple such hearings at the same time, and parents don’t always know how to argue their cases. While jail time is a viable option for parents who are behind with payments, they are not eligible for a free lawyer as it is not a criminal case.
Much of the foundation for this concept was confirmed in 2011 when the case of a South Carolina family, named Turner v Rogers, found its way to the US Supreme Court.
An Oconee County family judge ordered Michael Turner to send Rebecca Rogers $ 51.73 each week to support the child they had together. But Turner often left without pay, which resulted in the court despising him five times.
For four of the results of the contempt, he paid what he owed – no later than a few days after the beginning of a 90-day prison sentence.
The fifth time, Turner did not pay and served six months behind bars. When he showed up, he owed late support payments of $ 5,728.76, and the family’s clerk, according to court records, issued a new order to raise concern.
The judge found Turner in premeditated contempt following a ruling by the US Supreme Court and sentenced him to one year in prison without officially determining whether he could make payments.
Turner was serving the sentence and petitioned the SC Supreme Court for a lawyer to be granted to him. Neither he nor Rogers had money for a family court attorney, and since no one had been charged with a crime, they were not automatically entitled to representation, as would have been the norm for poor criminal defendants.
The state Supreme Court rejected Turner, saying the sixth amendment does 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 due process clause of the 14th Amendment does not automatically require that the state provide a lawyer just because a person is imprisoned and cannot afford a private lawyer, especially if the other party is also not represented. This is especially relevant if the state is taking other safeguards, such as a fair chance to argue that it cannot afford the fees.
The court’s precedent also doesn’t give a clear answer, argued the majority opinion: the ability to pay as ordered separates civil and criminal disdain, the opinion said, so an inaccurate analysis of the person’s finances can result in unlawful incarceration.
However, since the judge never officially stated that Turner had the money to pay and had not been told that the reasoning that this point was his main defense, the majority of the five judges still found that his incarceration was against the Violated due process laws.
According to experts at Root & Rebound, the outcome wasn’t a huge win for South Carolina’s poorer parents.
“If you want to lock people up for civil contempt, you should need a lawyer,” Walker said. “It’s just people trapped in a cycle of poverty that the pandemic has made worse.”