Family Law Innovation: Too little, but not too late

Post Authored by Jason Pica

Before my second birthday, my parents divorced. They both remarried shortly afterward. Then, my biological father divorced his second wife six years before my mom divorced my step-father. Yes, I am a child of three divorces, and oddly enough, I have discovered joy in child and family law. The word “divorce” actually makes me smile. One would think that I would be sprinting away from this emotionally draining and toxic world, but as a law student and Master of Social Work student, I am diving in head first. In fact, my mentor, the Honorable Judge Regina A. Scannicchio of the Domestic Relations Division in the Circuit Court of Cook County, uses the phrase “drinking the Kool-Aid” as an equivalent to dedicating a practice to family law. I have drunk, am drinking, and will continue to drink this sweet beverage as a family law practitioner. This Kool-Aid, however, might have too much of a traditional flavor, known as “this is how we do things.” The “dramatic” narrative in family law needs to change: specifically by examining the need for parents’ right to an attorney in family law cases concerning their child and re-examining the punitive child support system.

For the vast majority of people, their most cherished relationship is with their child. This relationship is also protected by law because the Supreme Court held in Troxel v. Granville that a parent has a fundamental right to direct the upbringing of their children. 530 U.S. 57 (2000). If a court deems a parent to be fit, then it will protect the parent’s right to raise his or child. A parent-child relationship is also highly regulated by state courts by using the “best interest of the child” analysis, containing but not limited to the following factors: the circumstances of the child’s home life; the physical and mental health of the child and parents; whether there is a threat of physical violence against the child; and the child’s relationship with each parent and with his or her siblings. If the entire judicial system—from the highest court of the land to domestic relations courts in Cook County—have recognized such an important right, then parents should have the right to an attorney when their family law case could result in the loss of the parent-child relationship.

Unfortunately, not everyone in Chicago has access to family law attorneys. Some parents’ income is too high to qualify for legal aid and simultaneously too low to afford a private family law attorney, whose hourly rate often ranges from $250-$700 per hour. Parents that can afford to protect their parental rights have an unfair advantage against those who cannot afford expensive legal fees. The parents who cannot afford a lawyer either proceed as pro se litigants or slowly lose hope and give up. It can be quite alarming for pro se litigants to deal with an emotionally charged situation, advocate for themselves, and deal with a system that does not take their specific needs into account. Further, many parents find it intimidating, frightening, and unfair that a person they do not know—the judge—will decide their child’s future and their rights to their child.

Further, the child support system is punitive. If a parent fails to pay child support, a judge may find a parent in indirect civil contempt, which could send that parent to jail. As a result, child support is a modern day debtors’ prison.  The National Conference for State Legislators proposes a simple solution to this problem: employ individuals. This would be a stark contrast to today’s child support enforcement agencies, who are concerned with enforcing payments through punitive actions such as license suspension, house arrest, or incarceration.[1]  Parents have a duty to support a child, but parents cannot, in any way known to man, support a child by sitting in a jail cell. The punitive child support system disproportionately affects low-income men in Chicago. With little available money, combined with a child support order and a Petition for Rule to Show Cause for Failure to Pay Child Support, low-income individuals have no reasonable option to pay their arrearages. While a judge rightfully acts on behalf of the state to enforce court orders and collect unpaid support owed to a minor child, their methods of enforcement are significantly limited. Legislators and innovative justice experts should create programming for parents with child support arrearages that helps them pay off their arrearages. Further, a judge should also have an expanded role in helping parents find employment, other than a job diary order. As a city, we all have a role in raising Chicago’s children, and sending their parents to jail due to their socioeconomic status is not reasonable.

Children are our next leaders, and the issues that directly affect them are issues that affect their families. These issues should be at the forefront of our minds as we focus on improving the legal system, rather than continuing with the notion of “how we do things.” Family law is an expanding area of law and should continue to innovate in the modern age.

“The child is not the mere creature of the State. Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Soc’y of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).

[1] Brian J. Gilbert, Why Are We Still Putting People in Jail for Unpaid Child Support, CAL’s Preventative L. Blog (Jan. 27, 2019), http://www.chicagoadvocatelegal.com/cal-law-blog/why-are-we-still-putting-people-in-jail-for-unpaid-child-support.

About the Author:

Jason Pica.pngA Wisconsin native, Jason graduated in three years from Loyola University Chicago with a BA in Political Science. Jason is currently a law student at The John Marshall Law School and works as a judicial extern for Judge Regina A. Scannicchio of the Domestic Relations Division. He will begin working as a law clerk at Beermann LLP in May 2019. He aspires to practice all aspects of divorce and family law, concentrating in complex issues involving mental health disorders.

Jason will also obtain a Master of Social Work with a specialization in clinical work with children and families from Loyola University Chicago’s School of Social Work in May 2019. As a graduate student, he provided free individual and group psychotherapeutic services to disadvantaged youth in Chicago. He also serves as the Co-Editor-in-Chief of Praxis, the School of Social Work’s scholarly student-run academic journal. Finally, Jason is a research associate at the Empowering Counseling Program, where he focuses his research on the future expectations and hope of disadvantaged Black youth and the development of psychotherapeutic civil education curriculum. For example, Jason helped create the “Law Under Curious Minds” program, which was funded by After School Matters. At some point, he also plans on pursuing a PhD in social work.

When Jason is not busy working or studying, he is an avid runner, pianist, boater, and fisherman.

 

 

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