| |
| |
| Father
Non-Violent Protest of States Invasion
in His Parenting Rights |
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|
Another sad story of the judicial abuse
of a clearly loving father placed under
impossible child support orders |
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| pulled out of a judge's
ass and jailed for not following them.
Entire chronology at: http://www.AKidsRight.Org/support_jm.htm |
| |
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Sent: Monday,
April 10, 2006 5:01 PM
Subject: [MichDads]
[AKidsRight.Org] Murtari cased adjourned
- Judge recused himself.
Good People &
People of Faith,
I'm surprised to be writing this.
Most of this message was prepared
earlier, and was going to be sent
out if I was jailed for contempt.
After all the personal stress in getting
ready for today's trial, it was a
disappointment when Judge David Klim
recused himself. I was quite
surprised to hear his reasoning: he
mentioned the AKidsRight.Org web site
and said I had negative comments about
him there and was very critical of
him (this is the same Judge that sent
me to jail in 2000).
He said he was so upset about the
comments, that he couldn't give a
fair ruling.
I was very surprised by that, you
are welcome to check the site below
and read the history yourself.
I did send him numerous letters from
jail asking for mercy, but I was always
respectful and never insulted or demeaned
his character. Everyone deserves
to be treated with dignity, respect,
& compassion.
The case will be assigned to another
Judge and rescheduled. The issue
of venue may hold up the entire matter
-- more on that in the link below.
For complete details and background,
including a photo of my son, Domenic,
and I see:
http://www.AKidsRight.Org/support_jm.htm
I have included contact info below
for various officials and if anyone
can offer help with legal fees, they
are welcome -- more info below.
Please excuse me if some old/new stuff
is mixed in this message - JM.
Our issue
---------
How is it that a parent who has: done
volunteer work, served our country
in the Air Force, been active in his
Church, demonstrated a life long commitment
to the care of his family, has a loving
relationship with his child, and spent
a large amount of money in support
of his child -- is not only labeled
a 'deadbeat' by New York State, but
also given a prison sentence?
Family web site at:
http://www.murtari.org/
John Murtari's story is not unique
at all -- there are even more horrible
stories happening all over the country.
How?
Our society has failed to recognize
& protect the Civil Right of parents
to nurture their own children. There
ought to be a "significant barrier"
the system has to cross before they
can interfere with family life. Before
a Judge has the ability to determine
'what is in the best interest' of
your child.
We are not looking for MORE laws,
but protection. That you and
your spouse are both considered Fit
& Equal parents (equal in terms
of both physical and legal custody).
If anyone (a spouse, relative, social
services) wishes to challenge that,
you have:
1) The right to counsel.
2) The right to be presumed a fit
parent, innocent, and deserving of
an equal relationship with your kids.
3) The right to protection of a jury.
The "state" needs to prove
you
were a demonstrated serious and intentional
threat to your child's
safety.
Good
People & People of Faith, |
| |
I want to alert
you that I have a firm Court Date
for my support contempt trial, It
is April 10th, at 2 PM, in Syracuse,
NY, with Judge David Klim presiding
(the same Judge that sentenced me
to six months in jail several years
ago). You are welcome to be there!
|
| |
Many of you know
that if sentenced to jail I plan on
taking NonViolent Action by non-cooperating.
I will just lay down on the floor
and be polite, but passive. I will
talk to them, but I won't help or
answer any processing questions. They
can carry me. |
| |
I will also make
them feed me and keep me hydrated.
I'm not going to cooperate by eating
or drinking for them -- they can use
an IV and feeding tube. I'm their
total responsibility. PLEASE UNDERSTAND
this in no suicide wish or hunger
strike. My goal is not to hurt myself,
but to make them expend an uncomfortable
amount of effort to keep me in jail.
|
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| If this is new to you or for more
details on what's happening, to see
court documents, or court directions,
please go to: http://www.AKidsRight.Org/support_jm.htm |
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| What will happen. |
| |
| I'm not looking
forward to this. It is certainly not
a stunt or a game. I'm 49 years old
and fortunate to have never spent
a day in a hospital. By not drinking
a lot of bad things can start to happen
fairly quickly and they need to get
that IV running. After that comes
the feeding tube -- through the stomach.
I'd like to say I was overweight and
carrying some extra fat, but I'm not. |
| |
| This is the good scenario? The idea
of succumbing to these procedures turns
my stomach. If everything goes well,
maybe no long term health effects --
if a mistake or infection happens, real
trouble. |
| |
| Jail |
| |
| officials will certainly isolate
me and limit communication. Some may
try to avoid the 'civil rights' aspects
of this, by just saying "John is
mentally ill -- we'll put him in a psych
ward." |
| |
| Why all this? |
| |
| The issue is Civil Rights. Our ability
to follow our consciences and nurture
our children. Our right to be fit &
equal parents: http://www.AKidsRight.Org/archive/archive2006/0007.html
|
| |
The 'system'
has financially destroyed me and I'm
approaching retirement with nothing.
That is certainly punishment. But
now they also want to throw me in
jail for half a year any time they
desire. While at the same time ignoring
the large amount of money I have spent
on my son, our loving relationship,
and the value I have to him. |
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| It is a terrible
indignity -- and some of your stories
(BELOW) are much worse than mine!
At least I was able to spend Spring
Break with my son last week and have
a great time together. If I'm not
in jail, we should have six weeks
together this summer... |
| |
I'm so thankful
Domenic is now 13 years old and can
begin to understand what 'Dad does.'
He (and I) are tired of 'counting
days'. How many more days of vacation?
How many days till the next visit?
How many days till.... I noticed on
his laptop he has a countdown timer
-- it was set to show the days:hours:minutes:seconds
till our summer vacation. |
| |
His love keeps
me motivated. I can't forget all the
needless pain I have seen him go through
because of the 'system.' Many of you
have kids who don't even want to see
you -- I don't know how you stand
it? I would never trade places with
you. |
| |
I will be thankful
for lying hungry and thirsty on a
jail cell floor, or having a tube
stuck in my gut, but having a son
who loves me -- I would not trade
places with you...ever. |
| |
NonViolent Action
( http://www.AKidsRight.Org/approach.htm),
a good way to show our response to
indignity. Being denigrated in jail,
stuck with a feeding tube, losing
a job, being put in the 'crazy ward'
-- pretty bad things? Do any of them
approach the 'badness' of being unable
to both give and receive love from
your children? |
| |
| When our actions
begin to show that we are willing
to embrace all that voluntary suffering
-- other people will begin to appreciate
the great love we have for our kids,
and the wrongness in how we have been
treated. Then our GREAT RIGHT to be
parents will be recognized and protected.
|
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| Your HELP is crucial. |
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Certainly, you
are welcome to be present on Monday
and I look forward to putting a face
with an email address. I am fortunate
to have a good attorney who has volunteered
to help in representing me and hopefully
I can walk out of Court a free man
on Monday. I feel the issue of 'proper
venue' is being ignored and I recently
filed a criminal complaint against
my former spouses attorney, Ms. Maureen
Walsh, http://www.AKidsRight.Org/support_jm.htm |
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| I hope to be free and continue our
efforts to get a meeting between parents
& Sen. Clinton. http://www.AKidsRight.Org/actionc_syr.htm
|
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| If jailed, a list message will be
sent out containing detailed contact
info for the following officials (the
issue is Civil Rights). Your suggestions
and help in contacting others is welcome:
|
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Senator Hillary R. Clinton &
Congressman James T. Walsh (Both
up for reelection this fall).
Mr. Glenn Suddaby, US Attorney Northern
District of NY (Syracuse) |
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| Mr. William |
| Fitzpatrick, Onondaga County DA |
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| Judge David Klim |
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| Local TV and newspaper for Syracuse. |
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| ----------- |
| |
Personal Visits
- given the limited communication,
these would be very valuable in helping
to get the word out. The web site
should have information on where I
am located and you can normally contact
the facility directly for visiting
info. I know I would certainly be
very happy to see you. |
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| Your FEEDBACK,
including support case law |
| |
| ----------------------------------------- |
| --- carol webb <carolannwebb2001@yahoo.com> |
| |
... How about
arrearage of $30,000 @ $50 per week?
How about no visitation efforts by
non-custodial parent, no phone calls,
cards, letters, nada? How about all
visitation facilitated by custodial
parent -- aka begging dad to be a
dad? I thought this was about KIDS
RIGHTS, not cp vs ncp? Let's fix the
system, yes. Let's NOT free NCPs from
their physical, emotional and YES
financial obligations.CPs have to
pay, too. Can an ncp house, feed,
and clothe a growing child on $50
per week? This doesn't take into account
lights, gas, water, travel expense,
misc. medical costs.... |
| |
| BTW my Husband
pays cs for 4 kids he doesn't see
unless he flies them to and from another
state. My ex live 3 miles away, never
initiates contact and paid a whopping
$50 LAST YEAR. |
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| Sorry to hear
about your former spouse not wanting
to see the kids and paying so little.
Sorry to hear about your husband paying
for the kids, and I assume not getting
to see them as much as he wants. |
| |
| What if both
had been assumed equal parents with
their kids, with the opportunity for
equal contact? I'd welcome your feedback
on a Family Rights Act we have at
the |
| |
| site, http://www.AKidsRight.Org/approach.htm |
| |
| If a person
does NOT want to fulfill their responsibilities
and duties as an equal parent -- then
it makes sense they need to pay the
other parent for assuming those responsibilities
and the expenses. |
| |
What is more
difficult is what to do about 'water
under the bridge?" What if you,
for whatever reasons, had decided
to walk away from your kids when they
were younger? Had little contact for
several years, and then decided you
did want to be involved again as their
mother. Would you be satisfied with
the every other weekend? Do you feel
that once a parent 'walks away' --
that is that? |
| |
| --- "John Speer" <js@rgv.rr.com
(bounced email address) |
| |
I am sorry to
hear about your situation. Mine is
very similar. After my Ex-wife vowed
to destroy me personally, financially,
spiritually, socially, business-wise
and in all ways possible, she launched
a campaign of malicious prosecution
(fictitious charge, after fictitious
charge, after fictitious charge).
In my having to hire expensive attorneys
in each case to defend me (and prevailing
each time because there WAS no crime),
she wasted what little remaining money
I had left after already had been
made to pay for her divorce attorney's
$100,000 legal bill. The court proceeded
to assess me child support in excess
of my pay check such that I could
no longer even afford to live in a
one-room YMCA rental. |
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| I was forced to go homeless and lived
in shelters for a while. Finally after
stabilizing and starting to get back
on my feet, they threw me in jail for
6 months for past due child support,
supposedly > |
| |
for being "in
contempt of court" for not paying
when they had already taken all my
money and there was nothing left to
pay them with. All this while, my
visitation was repeatedly denied and
there was no assistance or enforcement
of my only remaining right with my
children. Since that time, I have
achieved at least telephone communication
with my children from 1500 miles away
and have become active supporting
the Virtual Visitation initiative
(supplemental visitation by webcam)
since the cost of plane tickets, hotels,
rental cars, etc., is more than I
can afford (the child support courts
currently take 95% of what I make).
|
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| Wow! They can
really grind you into the ground.
So many people just don't believe
this kind of stuff goes on. It is
a real tragedy and I will certainly
keep you in mind as I approach my
'trial' next Monday. |
| |
| The methodical
demonization, demoralization, and
systematic dismantling of fathers
in divorce court and child support
court thereafter is a horrible, horrible
crime against humanity that has brought
me to lose my faith in the American
legal system. The problems are so
entrenched and the anti-male attitude
in our media and our courts (you're
a "DEADBEAT!") is so far-reaching
that I'm not sure if this can be fixed
in my lifetime or if living in America
is even attractive anymore for divorced
fathers. |
| |
Yes, but I hope
we can broaden it to include all parents.
We have a lot of members who are mothers,
or who lost their kids to 'social
services'. There are some who feel
the government has the greater right
to determine 'the best interest of
your child' than you do as a fit parent
== from that assumption, they can
take any action they desire, and they
do. |
| |
| |
| --- Tom <tak2166@aol.com> |
| |
| I've been in
this game since 1985, a long time
by most standards. A couple of months
ago, I fed my court documents to the
the shredder - one page at a time.
This activity was long overdue. I
can't begin to describe the release
that was. As I shredded, I relived
the years of unspeakable grief my
ex put me and my kids through - little
details I had long forgotten about.
Not surprisingly, it still continues,
in one form or another. |
| |
I don't begrudge
anyone taking a non-violent approach.
A man's gotta do what a man's gotta
do. I've tried it too over the years,
off and on, in one form or another.
Nothing changes. If anything, the
other side's become evermore entrenched,
much more so than in my day. |
| |
Yes, you are
right there. Just taking action doesn't
guarantee we get a fix. We have to
find the value in the action itself.
I think about segregation, and I'm
sure a lot of Blacks were beat up
for demanding their rights (and we
don't even know their names), but
eventually it mattered. |
| |
The fact of the
matter is this. Family Court is forcibly
changing the very fabric of society,
one family at a time - all at the
expense of fathers and children. As
a result, the other side's created
a culture of violence unheard of in
my day. These so-called "violators"
share one common factor. One way or
another, their fathers were forced
out of their childhood. |
| |
Sooner or later,
this issue's gonna reach the critical
mass I described earlier. Our national
security hangs in the balance. |
| |
The fabric of
society is being violated as you say.
I would like to broaden it and say
that not just 'fathers' are hurt.
Many parents are hurt; not only through
divorce, but also child 'protective'
actions. The concept that the 'state'
has the superior right to determine
the 'best interest' of your child
than a fit parent is disturbing. |
| |
| --- "Elizabeth Barranco"
<lizbarranco@gmail.com> |
| |
| I worked in
the criminal justice system for over
22 years as a lawyer and I am always
astounded when parents who have been
deprived of custody see violence as
an option. While non-violent protest
may lead to jail, violence leads to
prison and not just for a couple of
nights. You think you can't see your
kids now? How much contact will you
have when the person who has custody
of them has to drive over an hour
to bumfuck Egypt and stand in line
for two or three hours so they can
see you for one more hour in a room
with 100 other inmates and their families
and one TV and eat sandwiches from
vending machines? That's if you have
contact visits or even visits at all.
Think you can't talk to your kids
now? How would you like every phone
call to be recorded and rudely cut
off after you exceed your alloted
15 mins. per week? ... |
| |
| I believe in fighting but doing it
the smart way which is to make it uncomfortable
and embarrassing for the people who
make these awful decisions about our
families to keep making them. In CA,
in Santa Rosa, parents united and through
peaceful (and embarrassing) demonstrations,
they changed the way that courthouse
operates. |
| |
In San Diego,
on the other hand, where I live, we
have had numerous acts of violence--everything
from outright murder to suicide on
the courthouse steps. And you know
what? They just keep on keepin' on.
> |
| |
| Actually, things
got worse, if that's possible, after
the violence started. In fact, I lost
three of my kids after the courthouse
suicide and the murder of a 14 year
old boy who was the target of a custody
battle by his lame father who then
shot himself in the head, no doubt
because while he had the "balls"
to shoot an unarmed, unsuspecting
kid, he didn't have the balls to do
the time for it ... |
| |
After that, the
players in the system didn't just
back off and cower in a corner. They
hit other parents with everything
they have. Why do you think there
are so many "'psych evals"
with predictable outcomes and biased
evaluators in family court? The authorities
have developed "profiles"
about violent parents and they are
willing to spend years figuring out
if every other similarly situated
parent fits that profile. Since most
violent parents begin the same way
we all do--outraged, desperate, making
certain comments or acting a certain
way, we all fit the profile in the
beginning so it subjects us all to
being labeled that way, and studied.
Meanwhile, as the "study"
goes on indefinitely, the kids are
deprived of a parent. |
| |
When parents
become violent, it hurts them, their
kids and all the other similarly situated
parents and kids. I think the solution
is to encourage lawyers to run against
bad judges when they are up for re-election,
to find sympathetic people in the
media to tell the stories and to otherwise
shine a light on what is happening.
If enough regular people really knew
how bad it was, it would end. That's
the whole premise of our democracy
and while it may not work fast enough
or seem fair enough, it's better than
the alternative. I also think more
cases need to reach the courts of
appeal but I know that can be too
expensive and that by the time they're
done messing with you, it's difficult
to find the energy for yet another
battle in a forum that so far hasn't
been much help. Still, the reason
the lower courts think they can violate
the law with impunity is because they
don't get challenged enough for doing
it on appeal. |
| |
| I think the money spent on a the
criminal defense lawyer you'll need
after taking violent action, if you
survive, would be WAY better spent on
an appellate lawyer. |
| |
| --- Jeff <headsurfer@networkwarriors.com> |
| |
Good Luck in
your fight against the 'Apparatchik"
and their tyranny. I have included
the below which my or may not help
in your strategy for court. At the
very least it addresses the 'Antipeonage
Act" and illustrates the waste
of time and strategic initiative as
there is so much precedent against
it: |
| |
| |
| Q. Does the child
support obligor always have the right
to an attorney during contempt proceedings? |
| |
A. State courts
have reached conflicting conclusions
regarding the question of the delinquent
obligor's right to counsel in child
support contempt proceedings. Several
state supreme courts, including Delaware,
Michigan, North Dakota, Texas, and
Vermont, have ruled that noncustodial
parents facing incarceration for contempt
of a child support order have the
right to be represented by a lawyer
during the contempt proceeding [Black
v. Division of Child Support Enforcement,
686 A.2d 164 (Del. 1996)[civil contempt];
Mead v. Batchlor, 435 Mich. 480, 460
N.S.2d 493 (Mich. 1990) [civil contempt];
State v. Gruchalla, 467 N.W.2d 451
(N.D. 1991) [civil contempt]; Ex parte
Gunther, 758 S.W.2d 226 (Tex. 1988)
[unclear whether civil or criminal];
Choiniere v. Brooks, 163 Vt. 625,
660 A.2d 289 (Vt. 1995) [civil contempt].
The Delaware supreme court specifically
found that "the presumption that
an indigent defendant has the right
to appointed counsel applies when,
if he loses, he may be deprived of
his personal liberty," but did
not apply if the state sought punishment
of something less than incarceration.
|
| |
Other state supreme
courts, including Florida, Missouri,
New Mexico and North Carolina, have
decided that parents subject to child
support civil contempt sanctions are
not entitled to legal representation
[Andrews v. Walton, 428 So.2d 663
(Fla. 1983); State ex rel. Sterling,
719 S.W.2d 455 (Mo. 1986); State ex
rel. Dept. of Human Services v. Rael,
97 N.M. 640, 642 P.2d 1099 (N.M. 1982);
Jolly v. Wright, 300 N.C. 83, 265
S.E.2d 135 (N.C. 1980)]. The Florida
Supreme Court found that in a situation
where the father had the ability to
pay the child support but willfully
refused to do so, and thus was not
indigent, the father's due process
rights were not violated when the
trial court ordered incarceration
without appointing counsel for him
in the civil contempt proceeding.
|
| |
Even indigent
obligors are not necessarily entitled
to a lawyer. The North Carolina court
ruled that "since the nature
of nonsupport civil contempt cases
usually is not complex, due process
does not require that counsel be automatically
appointed for indigents in such cases"
and that counsel would only need to
be appointed in cases where it was
"necessary for an adequate presentation
of the merits [of the case], or to
otherwise ensure fundamental fairness"
[Jolly v. Wright, 300 N.C. 83, 265
S.E.2d 135 (N.C. 1980)]. |
| |
Proving indigency
in order to obtain court-appointed
counsel can place the delinquent parent
in a potentially self-incriminating
position if the he or she is not found
to be indigent. If the court rules
that the parent is not indigent, that
ruling could lend credibility to a
charge that the parent had the resources
to pay the child support and chose
not to. Recognizing this, the Supreme
Court of North Dakota required that
a father found in contempt for failure
to pay child support should have had
the opportunity to prove his indigence
for purposes of appointment of counsel
in private meetings with the judge
and lawyers, rather than in open court,
since the disclosure of facts relative
to proof of his indigence could have
been used against him in the contempt
proceedings [State v. Gruchalla, 467
N.W.2d 451 (N.D. 1991)]. |
| |
Even if the defendant
is entitled to counsel, he may not
be entitled to have the state pay
for it. Missouri's Supreme Court held
that the trial court in a civil child
support contempt proceeding "could
not compel the state to expend public
funds by appointment of a public defender
to represent the alleged indigent
father" [State ex rel. Sterling
v. Long, 719 S.W.2d 455 (Mo. 1986)].
Similarly, the Delaware supreme court
ruled that the Office of the Public
Defender could not be appointed to
represent an indigent defendant in
criminal contempt proceedings arising
out of child support orders [Black
v. Division of Child Support Enforcement,
686 A.2d 164 (Del. 1996)]. |
| |
| |
| Q. What if the
child support obligor claims that he
or she doesn't have the resources to
pay the required child support? |
| |
A. Many parents
delinquent in their child support
payments and subject to contempt citations
claim that they are unable to >
financially meet their support obligations.
At least three state supreme courts
- California, Oregon, and Texas -
have ruled that it is the obligor's
responsibility to raise an inability
to pay as a defense, and to prove
that inability by a preponderance
of the evidence [Moss v. Superior
Court, 17 Cal.4th 396, 950 P.2d 59
(Cal. 1998); State ex rel. Mikkelsen
v. Hill, 315 Or. 452, 847 P.2d 402
(Or. 1993); Ex parte Roosth, 881 S.W.2d
300 (Tex. 1994)]. It is not, according
to the courts, the responsibility
of the custodial parent or the state
to prove that the noncustodial parent
has the financial resources to meet
his or her child support obligation.
The U.S. Supreme Court, in Fieock,
also found that allocating the burden
of proof in this manner was constitutional
and reasonable in child support contempt
proceedings. |
| |
Whether or not
a parent has the financial ability
to comply with the child support order
is particularly important in prosecutions
under the CSRA, which requires that
the parent's failure to pay support
must be "willful" in order
to warrant a conviction. In other
words, in order to obtain a conviction
under this federal law, the government
must prove that the parent has the
resources to comply and simply chose
not to do so. See U.S. v. Mathes,
151 F.3d 251 (5th Cir. 1998); U.S.
v. Brand, 163 F.3d 1268 (11th Cir.
1998). The Ballek court examined the
CRSA and Congressional legislative
history in order to clarify the willfullness
requirement and determined that "a
noncustodial parent who does not have
the funds to satisfy the child support
award, and who does not obtain a reduction
or remission of the award because
of inability to pay, will almost certainly
be engaged in willful defiance of
the state court's child |
| |
| support order" [U.S. v. Ballek,
1999 WL 125955, 1999 Daily Journal D.A.R.
2325 (9th Cir. (Alaska), Mar. 11, 1999)(NO.
97-30326)]. |
| |
Noncustodial
parents who truly lack the ability
to meet their child support obligations
have the right in every state to request
a downward modification of their child
support order based on a change in
circumstances. Also, many states offer
parents who cannot meet their obligations
and have amassed arrearages the opportunity
to negotiate a payment plan and avoid
severe sanctions, such as prosecution,
revocation of certain licenses, or
liens on their property. With these
alternatives available, many courts
and state agencies are adopting a
tougher stance against parents who
ignore their child support obligations.
|
| |
| Q. Isn't it unconstitutional
for the court to order a person to work
just to pay off a child support debt? |
| |
A. Some delinquent
parents have argued that requiring
an obligor to meet a court-ordered
child support obligation, without
consideration of his or her current
employment status, is unconstitutional
because it violates the U.S. Constitution's
prohibition on slavery and involuntary
servitude or because it creates a
criminal penalty for a civil debt.
In a recent case, the California state
supreme court examined this argument
in detail and ruled that enforcement
of a child support order did not run
afoul of the Thirteenth Amendment's
slavery and involuntary servitude
prohibition [Moss v. Superior Court,
17 Cal. 4th 396, 950 P.2d 59 (Cal.
1998)]. Specifically, the court found
that "there is no constitutional
impediment to imposition of contempt
sanctions on a parent for violation
of a judicial child support order
when the parent's financial inability
to comply with the order is the result
of the parent's willful failure to
seek and accept available employment
that is commensurate with his or her
skills and ability." In reaching
this conclusion, the court distinguished
child support from other types of
family support and narrowed 100 years
of the state's common law in this
area. California's highest court also
reviewed U.S. Supreme Court and U.S.
Circuit Court of Appeals cases, Congressional
legislative history, the state constitution,
and analogous areas of common law
in order to reach its holding. Based
on this review, the court determined
that the crucial element in slavery
or involuntary servitude is the requirement
that the oppressed person be bound
to one employer or one form of employment.
Since child support orders do not
require the obligor to work for a
specific person or in a particular
line of work, the court held that
enforcement of such orders does not
rise to the level or slavery or involuntary
servitude. The court also noted that
the U.S. Supreme Court has outlined
exceptions for the performance of
other civil duties, such as jury service,
military service, road work, and enforced
labor as punishment for a crime, such
as work camps. |
| |
In March 1999,
the Supreme Court for the State of
Colorado likewise ruled against a
father's claim that a criminal contempt
sanction for failure to pay child
support violated the state constitution's
prohibition against imprisonment for
debt [In re Marriage of Nussbeck,
1999 WL 112188 (Colo., Mar 01, 1999)
(NO. 97SC540)]. In this case, the
father argued that because his child
support arrearage was converted automatically
to a judgment against him under Colorado
child support law, he was being imprisoned
for a standing debt. The court rejected
this argument, holding that the father
may be imprisoned for failure to pay
child support because the contempt
order was predicated on his failure
to comply with the order, not on the
existence of a judgment against him.
The fact that the arrearage converted
to a judgment against him, the court
stated, was immaterial to the contempt
order for noncompliance. |
| |
At least one
federal circuit court of appeals has
also ruled that enforcement of a child
support order is not akin to slavery
[U.S. v. Ballek, 1999 WL 125955, 1999
Daily Journal D.A.R. 2325 (9th Cir.
(Alaska), Mar. 11, 1999)(NO. 97-30326)].
The U.S. Ninth Circuit Court of Appeals
cited three reasons for distinguishing
child support enforcement from involuntary
servitude and slavery: 1.) "the
relationship between parent and child
is much more than the ordinary relationship
between debtor and creditor";
2.) "the state's strong concern
for the welfare of minor children
is...manifested by the fact that parental
obligations at the dissolution of
marriage are not left to private agreement";
and 3.) "the state has an interest
in protecting the public [funds] by
ensuring that the children not become
wards of the state." Furthermore,
the court declined to "interpret
the Thirteenth Amendment in a way
that would so drastically interfere
with one of the most important and
sensitive exercises of the police
power - ensuring that persons too
young to take care of themselves can
count on both their parents for material
support." This holding illustrates
courts' reluctance to create a constitutional
loophole in child support enforcement.
|
| |
| Q. Did Congress
have the constitutional authority to
enact the Child Support Recovery Act
of 1992? |
| |
A. Many parents
with delinquent child support obligations
have challenged Congressional authority
to enact the CSRA in the first place,
but none have been successful. At
least ten of the 11 federal circuit
courts of appeal have heard cases
of this kind. The most common claim
is that Congress exceeded its Constitutional
authority when it enacted the CSRA,
violating the Tenth Amendment of the
U.S. Constitution in the process.
All ten U.S. Circuit Courts of Appeal
rejected this argument and further
found that passage of the CSRA was
a proper exercise of Congress' broad
authority under the Commerce Clause
[U.S. v. Bongiorno, 106 F.3d 1027
(1st Cir. 1997); U.S. v. Sage, 92
F.3d 101 (2nd Cir. 1996); U.S. v.
Parker, 108 F.3d 28 (3rd Cir. 1997);
U.S. v. Johnson, 114 F.3d 476 (4th
Cir. 1997); U.S. v. Bailey, 115 F.3d
1222 (5th Cir. 1997); U.S. v. Black,
125 F.3d 454 (7th Cir. 1997); U.S.
v. Crawford, 115 F.3d 1397 (8th Cir.
1997); U.S. v. Mussari, 95 F.3d 787
(9th Cir. 1996); U.S. v. Hampshire,
95 F.3d 999 (10th Cir. 1996); U.S.
v. Williams, 121 F.3d 615 (11th Cir.
1997)]. |
| |
| Q. Can parents
be prosecuted under the Child Support
Recovery Act for arrearages that accrued
before the federal law was enacted in
1992? |
| |
A. A few obligor
parents have argued that prosecutions
under the CSRA for child support arrearages
that accrued prior to enactment of
the federal law violate the U.S. Constitution's
protection that a person not be found
criminally liable for an action that
was not criminal when it was committed.
These challenges to an ex post facto
application of the CSRA have generated
limited success in the courts. In
at least five of the cases at the
federal court of appeals level, the
courts ruled that the prosecutions
did not violate the ex post facto
clause of the U.S. Constitution [U.S.
v. Rose, 153 F.3d 208 (5th Cir. 1998);
U.S. v. Black, 125 F.3d 454 (7th Cir.
1997); U.S. v. Crawford, 115 F.3d
1397 (8th Cir. 1997); U.S. v. Hampshire,
95 F.3d 999 (10th Cir. 1996); U.S.
v. Muench, 153 F.3d 1298 (11th Cir.
1998)] Only the U.S. Ninth Circuit
Court of Appeals agreed with the defendant
that the retroactive application of
the CSRA, which subjected the defendant
to federal criminal penalties for
failure to pay support without differentiating
between delinquencies alleged to have
occurred before and after the CSRA's
date of enactment, was an unconstitutional
ex post facto enforcement of the CSRA
[U.S. v. Mussari, 152 F.3d 1156 (9th
Cir. 1998). Ex post facto challenges
are examined in the context of the
circumstances giving rise to the case;
therefore, any of these courts, given
different circumstances, could rule
differently. |
| |
John Murtari
____________________________________________________________________
Coordinator AKidsRight.Org
jmurtari@AKidsRight.Org "A Kid's Right to BOTH parents"
Toll Free (877) 635-1968(x-211) http://www.AKidsRight.Org/
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