February 19, 1998

ACLU
125 Broad Street

New York, NY 10004-2400

Dear Friends,

ANCPR is a nonprofit organization dedicated to promoting and preserving the civil and human rights of non-custodial parents. For some time, I have been collecting case histories of families that have gone through divorce, and several trends relative to how their cases are handled by Family Courts and District Attorneys across the country have become evident.

As you may be aware, Family Law courts sanction the discrimination against non-custodial parents because of current notions of what constitutes "the best interest of the child". Current wisdom maintains that the best interest of the child is served by collecting the maximum amount of child support possible, without any consideration of the financial and emotional consequences to the family relationships that still exist, regardless of the fact of divorce.

In this light, we feel that there are also numerous Constitutional issues that need to be examined.

DEBTOR'S PRISON.

• • Parents are often place under arrest for what is called contempt of court, with a "purge" set often at several thousand dollars in order to be released. Under the law, the judge can do this if he or she believes that the individual has the ability to either raise or borrow the money from banks, friends, or family. Using such a broad definition of what is possible as a means of raising the money, doesn't this amount to a form of Debtor's Prison?

INVOLUNTARY SERVITUDE.

• • The court can specify terms of employment, sometimes placing parents on a work furlough program. Isn't this a form of involuntary servitude? Of course, just Monday last, the California Supreme Court ruled in Moss, that the state does indeed have the right to jail a parent if they fail to obtain employment at an acceptable rate of pay.

This ruling raises other questions, however:

UNEQUAL PROTECTION.

• • What about the wide disparities in child support awards? Some parents pay less than a hundred dollars per month. Others pay into the thousands per month. So if a person ordered to pay 3000 per month reduces his or her payment by half because they decide they can't afford the original amount, is that person to go to jail, even though they are still paying 15 times what the other parent is paying?

UNEQUAL PROTECTION.

• • What about a non-custodial mother who is ordered to pay child support, and later becomes pregnant? Should we force her to work or go to jail rather than spend time with her newborn? Or perhaps we should take her new child from her unless she can prove she can provide financially for both?

UNEQUAL PROTECTION.

• • What about the responsibility of the custodial parent? If the custodial parent is able to work, yet doesn't, does this decision apply to them as well? Are they as liable for financial support as the non-custodial parent? If not, why not? How can we tolerate in this society such disparities in the application of law? What ever happened to equal protection under the 14^th Amendment?

Other areas of concern are:

GUILTY UNTIL PROVEN INNOCENT.

• • This problem occurs at several places in the custody and child support determination process. If an allegation is made about the fitness of the father to spend time with the child, his privileges are automatically suspended until such time as a hearing is held and a determination is made as to his fitness. The process of determination is not an evidentiary hearing, nor does it follow any criminal law procedures, rather, it is administrative. And a hearing officer or other professional has nearly carte blanche to rule on this. These people are often incredibly biased against joint parenting plans that share physical custody, in addition to being prejudiced against fathers in general.

    In the child support setting phase, once the District Attorney decides to press the parent for more child support, based on what are often "imputed" earnings, the burden of proof is on the parent to show that they did in fact make what they said they made. IRS forms are not necessarily given any credence. It is also incumbent upon the non-custodial parent to prove they were unable to locate work at the income level acceptable to the court.

LICENSE REVOCATION.

• • What is the connection between a driver's license and paying child support? I understand that the ACLU has already expressed some concerns about this. So called "delinquent parents" can have not only their driver's license, but also their business or professional license suspended as well. The biggest problem is really with capriciousness with which this remedy is applied. In July 1996, the California DMV sent out over 160,000 notices of pending suspensions to anyone and everyone who ever showed a past due balance.

RIGHT TO JURY TRIAL.

• • Wanted posters advertising the pictures of "Deadbeats" are routinely issued without there ever having been a trial concerning the veracity of the charges.

    Even though non-custodial parents can be jailed and held indefinitely for non-compliance and are routinely charged with questionable arrears in the tens of thousands of dollars, still, they cannot ask for a jury trial.

ARBITRARY FINES AND PUNISHMENT.

• • Even if an arrears occurred as a result of fraud or some other reason, such as hospitalization, prison sentence, disability, or for any reason whatsoever, by law, the arrears cannot be changed. Doesn't this qualify as an arbitrary punishment or fine?

    Another problem related to this is that arrears accrue interest, often at high rates, such as 12%, and then there are also penalties assessed, as much as 6%. This can result, and often does, in an ever increasing debt that the obligor can never reasonably be expected to pay off. As far as I have been able to determine, nothing can discharge this debt, and there are no statutes of limitation on child support obligations. (This may vary from state to state).

PARENTAL RIGHTS.

• • The primacy of parenthood has been safeguarded by the United States Constitution as illustrated in the following citations. Doesn't it seem reasonable that this logic should apply to either or both of the parents in divorce?
    • •  

        The rights of parents to the care, custody and nurturance of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institution, and such right is a fundamental right protected by this Amendment (First) and Amendments 5, 9 and 14. Doe v Irwin 441 F Supp 1247; U.S. D.C. of Michigan, (1985 ).

        A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.

        Federal courts (and State Courts), under Griswold can protect under the "life, liberty, and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v Connecticut, 381 US 479, (1965).

        The U.S. Supreme Court has made it clear that a "parent's right to custody and companionship of a natural child has been specifically accorded protection under the Constitution. "Smith v. Organization of Foster Families" 431 US 816, 53 Led 2d 14, 97 S ct. 2094 (1977); Stanley v Illinois supra; Caban v. Mohammed 441 US 380, 99 S ct. 60 Led 2d 296 (1979).

CHILDREN'S RIGHTS.

• • What about a child's right to have an ongoing relationship with both of his or her parents? Shouldn't the child's right to a nurturing relationship with the non-custodial parent transcend the financial needs of the custodial parent or the fiduciary interests of the state?

I have many cases in my files that illustrate these issues. I would be happy to share them with you if you feel they would be helpful. I look forward to hearing your opinion on these issues.

Sincerely,

Lowell Jaks

President, ANCPR