Parents Obliged to Work to Pay Child Support

Calling financial support of children a “fundamental parental obligation,” the California Supreme Court decided Monday that so-called deadbeat parents can be thrown in jail for failing to get jobs to make child support payments.

“Children are dependent on their parents for the necessities of life,” Justice Marvin Baxter wrote for the court, “and it is essential to the public welfare that parents provide support.”

Before Monday’s ruling, only parents who had an income and refused to pay support were jailed. Lawyers say that a significant number of parents who were ordered to make payments to their children--perhaps 20%--fail to make them because they refuse to work.

“We’re ecstatic,” said Riverside County Supervising Deputy Dist. Atty. James Fullmer. “This will force those individuals who absolutely refuse to do anything to [work]. And those are probably the most frustrating cases for us and the custodial parents.”

In reaching its new holding, the state Supreme Court narrowed a 100-year-old precedent that said a delinquent spouse could not be forced to work to pay alimony. The court said that the old ruling does not apply when the payments are for the child--not merely an ex-spouse.

The justices also found that forcing a parent to work to support children does not violate a constitutional ban on involuntary servitude. “Working to earn money to support a child is not involuntary servitude any more than working in order to pay taxes,” the court held.

In the case before the court, Brent N. Moss of Riverside County had appealed a 30-day jail sentence for missing a year of child support payments when he failed to work. The ruling will not affect Moss, however, because the court declined to make it retroactive.

Moss, who is now working at a Cerritos car dealership, said in a brief telephone interview that he hadn’t paid child support because “I didn’t have an income.” About 50% of his wages are now attached for his children, he said.

Moss and Tamara Ortiz divorced in 1992 after several years of marriage and two children. In 1995, Ortiz, who has remarried, asked that her ex-husband be held in contempt of court for failing for a year to make court-ordered payments of $385 a month for their son, now 10, and daughter, 14.

At a court hearing, Moss’ mother testified that he did odd jobs like mowing the lawn but that she largely supported him. Moss had no car at the time.

An exasperated Riverside County court commissioner noted that Moss appeared to be well-dressed and “could get a job flipping hamburgers at McDonald’s.”

She cited him for contempt and ordered him to jail for 30 days. He appealed, and a reluctant Court of Appeal decided that Moss could not be held in contempt simply because he had an ability to earn money but had no job.

Moss finally found a minimum-wage job working for a friend about nine months ago, while the case was on appeal, according to a lawyer for his ex-wife.

The attorney, Michael Clepper, said a contempt order is a last resort in such cases because “you don’t want the kids saying, ‘Mommy, is it true you put our dad in jail?’ ” And even if the errant parent is sentenced to jail, he or she may serve only a fraction of the time because jails are so crowded.

“The last one I did, the guy went in on Friday at 11:30 p.m. and got out on Sunday morning and got credit for his full sentence,” said Clepper, who handles many family law cases.

The ruling will have “a lot of impact” because some parents pretend they are not working to avoid making payments, he said, estimating that about 20% of the child support cases he handles involve parents who refuse to work.

Most such parents are fathers, but some mothers also fail to make payments to their children in the custody of their ex-husbands, Fullmer said. Some are students and homemakers while others may have drug or alcohol problems, “and some of them are just lazy,” he said.

Under Monday’s ruling, a parent who fails to pay support must show by a preponderance of evidence that he or she is disabled or truly unable to find work. A parent can be cited for contempt for a “willful failure to seek and accept available employment that is commensurate with his or her skills and ability,” the court said.

“A parent’s obligation to support a minor child is a social obligation that is no less important than compulsory military service, road building, jury service and other constitutionally permissible enforced labor,” Justice Baxter wrote.

Riverside County deputy public defender Taylor L. Huff, who represented Moss, said the ruling takes the law down “an extremely slippery slope.”

He complained that the decision could prompt judges to insist that a parent seek a certain kind of job to earn as much as possible--that a judge, in effect, would say, “Sir, you have a job, but we don’t think your job is good enough. We’re going to put your in jail until you do better.”

“In short,” Huff added, “who decides whether a parent who is working is in fact earning enough to stay out of jail?”

Justice Joyce Kennard, in a separate written opinion, agreed with the other justices that a parent who fails to seek or accept a suitable job to pay court-ordered child support can face criminal punishment. But she said the decision should have applied retroactively to Moss because he had failed to present any evidence that he had tried to find work.