Thursday, July 16, 2009

Man freed from jail after not paying child support

This story is worth reading, not because he is a non-father ordered to pay child support but because he was released from jail after not paying it. Highly unusual!!!

Hatley was ordered to pay support for a child who was not his and then jailed after he was unable to pay. After a year he was released from jail. Here is information on Indiana non support law.

This case exposes some very interesting legal scenarios. The first that I would like to address is the statement by Hatley's attorney, Sarah Geraghty, who stated that this case amounted to "blatant unfairness." This gives me an opportunity to say again what I always do about courts. “Fair is not in a court, it is a place where you find greasy food, stinky animals and amusements rides.”

To first understand how a father or rather, a non-father, could be ordered to pay child support for a child that is not his you need to know the purpose of child support payments. Child support payments are a means of transferring wealth that will not be disturbed except for a showing of of substantial abuse. That is to say as money passes from one persons hands to another the government and others skim a little bit each time and they will not give that up. Utah Senator Greg Bell candidly tells it like it is in saying child support payments are a "huge economic shift" that "may not go to the child".

Courts in nearly every state have upheld rulings that men who are known to not be the fathers can be ordered to pay support. These are a few instances in which support can be based; the man was married to the woman at the time of the child's birth; the man signed a paternity affidavit; the man put himself forward as being the father; the man cohabitated with the mother; the man was the only man known to the court to be having sexual relations with the woman at the time of birth.

To the common person it would seem simple that if you didn't do something you shouldn't pay. If the utilities for yours and the apartment next to you had been combined and you paid someone else's costs for 10 years while they paid none you would be entitled to a refund. Not so in child support cases. Justice Kenneth Bell of the Florida Supreme Court articulated it well in upholding an order for a non-father to pay support. “We find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.” What Bell is saying is essentially that we are going to make someone pay child support regardless of that persons natural responsibility if, instead, it would mean that no one pays.

Former Clinton County Indiana prosecutor Louis Evans put it to me this way; “You can buy all the food, clothing and everything else for your child but if you still don't pay her that money I will continue to prosecute you.” Eventually, I put it to Evans who ran away from the case. Child support payments are about transferring money not about the best interest of a child.

Similarly, Indiana case law establishes that the “best interest” of the child supersedes the legitimacy of a child support payment order. It is well-established public policy in Indiana that a primary concern of all three branches of Indiana government is the protection of the welfare of children. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). The paramount concern of a court in any case involving child support must be focused on the "best interests" of the child. Whitman v. Whitman, 405 N.E.2d 608, 613 (Ind. Ct. App. 1980).

States establish their basis to order child support payments to recover their costs for public assistance. When mothers get custody and then receive public assistance the states go after the purported fathers to recover that cost regardless of ability to pay. The courts find that public policy supports ordering one person who has no liability in the child's birth to make those payments rather than the public at large through public assistance programs. Although child support payment orders are restricted to recovering money for the state they have become common place in most custody proceedings.

Courts are without authority to order child support 'payments' unless the order is established for the state to recover money paid to the mother through public assistance. In 2007 a Marion County Indiana man was acquitted by a jury after he was alleged to have failed to make $122,000 in child support payments. The jury found that he did provide 'support' to his children, not financial payments to the mother. Indiana Supreme Court case law establishes that a man has a duty to 'support' his children but not that this must be in the way of financial payments. The Court in Lambert v Lambert, 2007, cited Haase v. Roehrscheid, 6 Ind. 66, 68 (1854) (“[i]t is the duty of a father to support and educate his minor children”).

Courts have left it to the defrauded fathers to sue the mothers to recover any support payments that were made for a child that is not there's. Essentially what they are saying is if you are a woman and you want to go after any guy for money claiming he is the father we will help, but when it comes time for that defrauded father to get his money back he is on his own because the courts know it will never be collected. Again, child support payments are about the transfer of wealth. If there is no money to transfer then the state won't help a father recover it.

Hatley has experienced what few men have but what many more should; being freed from being imprisoned for not paying for a child that is not his. Unfortunately, until the public demands that their legislators pass laws to protect men from being ordered to pay for something that is not theirs then it will continue.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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