Judge to deadbeat dad: If you have another kid, you’re going to jail
posted at 4:41 pm on May 15, 2014 by Allahpundit
The ruling applies only if the deadbeat fails to pay what he owes. If he does, he can have all the kids he wants. But since he owes upwards of a hundred grand, I think “no more babies” is the realistic takeaway here.
The order actually came down more than a year ago. It’s in the news this week because the appeals court finally issued their decision on it. Upheld — on a technicality.
The decision, released Monday by the 9th District Court of Appeals, did not provide a legal explanation on whether Walther’s order was appropriate. Instead, two of the three judges on the panel wrote that without a copy of a pre-sentence report on Taylor completed by the county Adult Probation Department, they didn’t have enough information to examine the virtues of Walther’s order.
“Indeed, we have little to go on other than what the trial court said in its journal entries, which is itself limited,” Judge Carla Moore wrote in the majority decision. “We therefore have no choice in this case but to presume the regularity of the community control sanctions and to affirm.”…
Given his past failures to financially support his children, [the third judge] wrote that Walther’s order made sense.
“Where, as here, the defendant has demonstrated a long-term refusal to support multiple children by multiple women notwithstanding his ability to work and contribute something for their care, an anti-procreation condition is reasonably related to future criminality,” Carr wrote. “Taylor has here demonstrated that he is not inclined to support any of his children. There is no reason to believe that he would be inclined to support any future children.”
The Ohio Supreme Court overturned a similar order 10 years ago because it gave the deadbeat dad no means by which to have the order lifted. It was an unconditional ban. This new one is conditional, i.e. make the payments you owe and you can knock up whoever you like. In fact, it may be even more conditional than that. According to the judge, “The defendant is ordered to make all reasonable efforts to avoid impregnating a woman during the period control or until such time the defendant can prove to this court that he’s able to provide support for the children that he already has.” If he and his partner could somehow prove that they were using contraception, would that qualify as a “reasonable effort” even if she ended up pregnant?
But never mind that. What you want to know is whether this is constitutional. Answer: Maybe. The state can’t forcibly sterilize people to prevent them from procreating (anymore) but at least one state supreme court has upheld orders like Walther’s, penalizing people for having more kids if they haven’t provided for the ones they have already. That would be Wisconsin’s, in 2001:
The case split the court, 4 to 3, along gender lines. All four male justices joined in the ruling, issued on Tuesday, finding the condition a reasonable mechanism to deal with a father who has consistently and intentionally failed to pay the child support he owes. The three female justices opposed it as an unconstitutional intrusion on a basic right to procreate…
The opinion defended the restriction on Mr. Oakley as “narrowly tailored to serve the state’s compelling interest of having parents support their children.” It noted that the condition would expire in five years, when probation ends, and said the alternative of sending Mr. Oakley to prison would further victimize his children, ages 4 to 16.
But the female justices said the order violated Mr. Oakley’s fundamental right to procreate and, as Justice Diane S. Sykes put it, basically amounted to “a compulsory, state- sponsored, court-enforced financial test for future parenthood.”
More than a decade later, court orders warning deadbeats not to have any more kids or face jail time were still being issued in Wisconsin. My hunch is that SCOTUS would overturn that if and when a case along these lines makes it up there; the Court’s four liberals would naturally vote with the deadbeat dad in the interest of keeping reproduction rights (which, of course, include abortion) inviolate, and Kennedy would probably join them. He trends libertarian on social issues and famously refused to overturn Roe v. Wade in the Casey decision back in 1992. Even if there are five conservative votes on the Court to uphold this, though, they might be reluctant to see orders like this proliferate, which would be a natural consequence of the high court taking a case on it and affirming it. Having lower-court judges handing down orders on who can and can’t have kids, even in the narrow realm of deadbeat dads, might make appellate judges squeamish for slippery-slope reasons even if they conclude there’s nothing unconstitutional about it per se.