[Chris Castanias is a father of two who was held in civil contempt for failure to pay child support. Although he requested appointed counsel due to his indigent status, the domestic relations court refused to entertain his request and he was subsequently sentenced to over 90 days in jail. In this piece, he shares his experience. — Zachary Cloud]
Divorce can be financially devastating, and equally so for both mother and father.
Imagine for a moment that you experience a 50% reduction in pay and at the same time are ordered by a court to pay not only your rent or mortgage, but that of your neighbor. Could you do it?
The economics of that scenario are similar to that of an obligor (the person ordered to pay child-support), previously living in a typical two-earner, two-child household. What happens at divorce is that the earners split up and no longer jointly contribute to the family’s financial obligations, while the designated obligor picks up an additional involuntary debt (child-support obligation) that is likely close to that of his or her existing rent or mortgage payment.
In the fictional situation described above, would you consider it fair if you were at risk of being jailed for not making both your and your neighbors housing payment in any given month. If you faced the potential of jail, would you want legal representation? If you couldn’t afford to make the housing payments, how likely would you be to afford an attorney. Is it possible that financial scenario might create a situation where you would need to ask for court appointed counsel?
There are similar parallels to my hypothetical scenario, the case of Turner v Rogers and many countless others who have been sentenced to jail without being allowed representation of legal counsel, after allegedly falling behind with child-support obligations.
The world is currently experiencing the worst economic period in modern history. In this country, foreclosures are at record high levels, yet no one is imprisoned for failing to pay their mortgage or defaulting on their rent. In 2008, statistics show that nearly 16 million child-support obligors nationwide were in default on the child-support obligation. One state, Illinois reported 88% of their obligors to be past due. For more information, see here.
I’m writing as an strong advocate of Michael Turner, because I personally experienced the exact same fate, and since the completion of what I feel was an unjust imprisonment over a year ago, I’ve no longer had any access to my children.
Unlike Turner, who had little formal education, I possess a degree in accounting.
I’m 50 years old, and prior to 2008 was financially secure and had never been in any legal trouble. I was divorced in 1999 and have 2 children who were 5 and 1 at the time. From the time of my divorce until 2007, I enjoyed nearly twice the amount of parenting time with my children that a standard parenting order would typically allow a non-residential parent. This due to the fact I had worked from home for nearly 10 years.
In 2007, my ex remarried and moved approximately 5 miles away to the neighboring suburban community. Against my objections, she successfully petitioned the court to allow a transfer of the children to her new school district. The court in its decision stated that “Father’s only objection is that he had been actively involved in the children’s daily lives and since he worked at home they didn’t anticipate the move to have an impact”.
Not long after the ink was dry on the first decision, Mother returned to court and asked that they restrict my parenting time, which it agreed to, based upon the premise that there would now be unnecessary daily travel for the children (5 miles), “which would not be in their best interests”.
Finally mom requested and was granted a + 400% increase to support, based upon my having less time with the children, even though all time that I lost would occur while she was working outside of her home.
Prior to the ordered increase I had a credit balance in my support order, due to my having made voluntary double payments for an extended period of time.
Soon after the increase, the economy took a nosedive and my income dropped from +100,000 to below $30,000. In March of 2009 I requested a modification (which was finally granted in August of 2010, some 16 months later).
As soon as I fell behind, I began to feel the impact of the legal system. Within months, I was sentenced to 10 days in the county jail. Upon release I was ordered to wear a GPS device for 4 months (the entire summer of 2009). Finally, I was sentenced to an additional 90 days in jail from November 2009 to February 2010, even though prior to that sentence, and upon the urging of the prosecutor, I requested and was denied court appointed counsel. (I was financially unable to secure my own counsel at the time. In fact I still owe my divorce lawyer close to $5,000 for representation during the hearings regarding the school transfer and subsequent reduction to my parenting time).
Recall that unlike Turner, I’m college educated with a degree in accounting, so after being denied legal representation, I quickly came up with a trial strategy in which I was clearly able to mathematically confuse the prosecutor and child support agency’s bookkeeper.When it became clear they were stumped, the magistrate took it upon himself to begin his own line of questioning and he ultimately found me guilty based upon what he termed “Prima Facie” evidence. Not being a legal expert, I looked up the term and found that it effectively means the appearance of. (As a side note, the magistrate is a former prosecutor as are many domestic relations arbiters throughout this country, so I was effectively a non-legal expert fighting two prosecutors).
Another twist to my story is that I happen to have a cousin who is a partner with the law firm representing respondent Rogers in this case. In sharing my own personal experiences with him, he offered a very interesting comment in which he said “no one knows my case better than me, so I should win on substance every single time, but because I’m not a lawyer, I will also lose on points of law every single time”. What more compelling statement to support the need for legal representation when faced with imprisonment.
As a final note, my children were alienated against me during my incarceration and I have not seen them since my release over a year ago.
From my personal experience, Turner v Rogers is a case I’m following with tremendous personal interest.
In an adversarial situation such as divorce where children are often a pawn, imprisonment for any period of time puts the parent sentenced to jail in a precarious position of having the other parent manipulate the children while the incarcerated parent is out of their lives. It happened to me and it makes imprisonment all the more severe in child-support cases.
As such, I have complete conviction that the South Carolina ruling must be reversed, thereby allowing all indigent defendants facing imprisonment in civil child-support cases the absolute right to legal representation.