Federal Law abolished the practice of debtor’s courts and prisons in 1833 and in 1983 The U.S. Supreme Court upheld that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment’s Equal Protection clause. This in simple terms means that an individual can not be sentenced to jail for owing a debt (money). But then why is this still happening?
For thousands of non-custodial parents in South Carolina, this is an everyday occurrence. A parent is summoned to court for a debt that the Domestic Relations Courts have placed upon that parent and is unable to pay. This parent is then sentenced to serve time in jail for failure to pay that debt.
The courts and legislators allowed a loophole for this, by using the court’s contempt powers. A parent would be held in contempt of court for not obeying the court’s order. But within the last few years, the Domestic Relations Courts (Family Courts) have grown bold with their power. They have begun holding these parents in jail for a new/old term, “Failure To Pay”.
This new/old term now shows up on many legal documents pertaining to the issue of child support and in some cases even attorney fees.
But it does not stop there, in most cases now the custodial parent is not the one who brings the issue to court. The issue is brought by the State or County. Here in South Carolina, the issue is brought up by the Department of Social Services which now handles all child support disbursements. A computer-generated report is sent to each domestic relations court with the names of who the computer says owes money or is behind. This report is used by the court clerks to issue summons or warrants. In many cases, these parents are not even brought before a judge to explain the reason for their non-payment, they have been pre-sentenced by the judge who signed the document.
Traditionally the custodial parent needed to file a verified petition or paperwork with a supporting affidavit why the other parent should be held in contempt. This practice has been jumped past with the creation of the state disbursement unit, which now handles child support.
Almost every state in the Southeast had determined that it is improper to hold a delinquent parent in jail if he or she lacks the capacity to pay the full amount owed. Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982); Lynch v. Lynch, 342 Md. 509, 521, 677 A.2d 584, 590 (1996); Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1985); McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985); Ex parte Rojo, 925 S.W.2d 654, 656 (Tex. 1996).
Charleston Attorney Gregory S. Foreman states on his website’s blog: “Finally, imprisoning a contemnor for failure to pay a support debt based merely upon a finding of civil contempt, when he or she lacks the current ability to pay the full amount of the support arrearage, may violate S.C. Const. Art. I, § 19, which states “No person shall be imprisoned for debt except in cases of fraud.” Imprisonment based on a criminal conviction for failure to support a child does not violate this constitutional provision. See State v. English, 101 S.C. 304, 85 S.E. 721, 85 (1915) (imprisonment for violation of criminal statute against failing to support wife without just cause does not violate the constitution because it is punishment for breach of criminal statute). However, no case law authorizes imprisonment for debt based upon a mere finding of civil contempt.”
A major concern for non-custodial parents is the fact that being incarcerated puts them even further behind and without any avenue to move forward. For many, it has even caused them to become homeless. This is not to mention the aspect of denying the child time with the incarcerated parent.
Domestic Relations Courts (Family Courts) are in reality classified as a court of equity (property courts). The most recent question raised by many is, does this sort of court even have the judicial power to incarcerate a parent? With so many case laws and Constitutional guidelines preventing this sort of action by these courts, then why is this happening to thousands of parents?
One attorney we spoke to stated: “He would love to see a group of parents take a case based on these practices to the U.S. Supreme Court.”
It is believed that domestic relations courts have become so powerful by simple repetition that no one has even asked anymore what these courts and judges are allowed to do. And those that do challenge these courts find themselves being demonized by the very same system.
It is also one way that South Carolina receives money from the federal government through what is called Social Security Act Title IV D. Many state court systems and individual courts take advantage of federal funding under Title IV-D of the Social Security Act to obtain reimbursement for the costs of adjudicating child support and paternity matters.