lady justice and a gavel

Blind Justice? Not Blind to Race and Income in Family Court (Part I)

Article Authored By: Jason Pica

Stated broadly, the family court system is a “pay-to-play” civil court system where litigants have no right to an attorney, even if faced with civil contempt proceedings that lead to incarceration and commitment to the same jail as criminal defendants. Incarcerating poor individuals for failure to pay child support or other court ordered financial obligations does not solve the underlying socioeconomic problem of making sure child support and other child-related expenses are paid.

While nationwide movements address the punitive criminal justice system and specifically highlight that incarceration does not promote rehabilitation but rather recidivism, there are little to no movements to address the underlying unfairness and inequities in the child support system.

It is a system not created to compassionately and effectively craft the best solutions. As a system which advertises itself as centered around the best interests of a child, it must now begin to empower parents, not punish them, especially in light of the large numbers of parents unable to afford attorneys. The central idea behind incarcerating parents for failure to pay child support and other expenses is (1) the bond will now be sent to the payee, and (2) hopefully, the payor will understand a court order is to be adhered to strictly. Incarceration for nonpayment makes little practical, economic sense when the key to consistent payments is employment. Through my five year affiliation with a low-bono or legal aid agency, rarely has an indigent parent intentionally refused to pay child support; the vast majority of parents with arrearages are unable to pay because of a financial hardship (i.e., loss of employment, eviction).

Before addressing today’s modern child support system, it is important to provide a thorough historical review and thoughtful connection to the history of enslavement, criminalization of Blackness, and pathology of Black parenthood.

On March 6, 1857, Chief Justice Roger Taney of the United States Supreme Court issued what is widely regarded as the worst Supreme Court decision ever. In Dred Scott v. Sandford, 60 U.S. 393 (1856), Chief Justice Taney centered the Court’s opinion on whether Blacks were citizens of the United States and thus able to sue in the courts.[1]  He freely expressed his racist views stating,

African Americans had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavey for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.” [2]

This opinion alone reinstated and fueled American traditions that property cannot be a parent to other property. To Chief Justice Taney and many other Americans, “Black people were ordinary articles of merchandise to be bought and sold similar to a chair or a table”[3]. Property did not have the status of a legally recognizable parent. Stated differently, “the right of Black parents to parent their children has remained highly contested since slavery.”[4] As Professor McMurtry-Chubb thoroughly states in, “Burn This Bitch Down!”: Mike Brown, Emmett Till, and the Gendered Politics of Black Parenthood,” slaves and their descendants were not permitted the legal right to marry, which expressly prohibited slaves from legitimate children.[5]  Professor McMurtry-Chubb further explains that as a result of the economic devastation of the Civil War on the South, White men demanded legal shifts in the financial responsibility of slaves to their family cohort.[6]  “With freedom came the obligations of patriarchy.”[7]

After the passage of the Thirteenth Amendment in 1865, slave states enacted legislation to formalize familial relationships and legitimate enslaved children; thus, legally making Black parents legally and financially responsible for their children.[8]  The majority of slave states legitimated enslaved children of parents who cohabitated during slavery.[9]  Despite fictious intentions as were and are still common among politicians and legislatures, these legitimating statutes of enslaved Black children failed to consider the reality of the consequences of slavery as slave families were separated at any time through death, sale or by force, which severely limited the ability of enslaved, non-legal spouses to cohabitate, track their children, and be involved parents in their children’s’ lives.[10]  The statutes and case law made it impossible for many Black fathers and mothers to legitimate their children and be active parents. – This was the birth of the idealist legacy of “absent Black fathers” and “deadbeats” and its negative connotations that still thrive today and label Black parents.

I went straight to the source and interviewed family court judges for opinions regarding contempt proceedings, beliefs on whether these proceedings were influenced by race and income, and their perspective on parentage cases within the Child Support Enforcement Division (CSED) of the prosecutor’s office. Some quite heavily used “deadbeat” or “deadbeat dads” in these interviews to refer to absent parents or parents who fail to pay child support or other child-related expenses. While a judge is supposed to be as unbiased as possible, the term “deadbeat” when used within discussions involving parentage cases where litigants generally are low-income and primarily people of color, illustrates a bias toward these low-income, parents of color with lack of consideration of status, education, and skill set to obtain meaningful and gainful employment. For satirical yet reflective relief, perhaps it can be argued that the first “deadbeat dad” was the White male slave master who forced enslaved Black women to care for his child?

I also interviewed a former Assistant States Attorney (ASA) who worked in the CSED within the past few years who requested to remain anonymous, and for the following reasons, anonymity seemed reasonable – (1) the ASA stated that the leadership of the CSED is led by outgoing ASA’s who worked for the office for decades, on the brink of retirement, and lack the initiative to foster a better CSED for the parties and children involved; (2) the ASAs are given no discretion insofar as on the second date of missed payments, they are required to request the issuance of a body attachment (arrest warrant); (3) there is no bias training and virtually no training for new ASAs in CSED when most are newly licensed attorneys; (4) the CSED is a “racist place” – the older ASAs in the CSED have a list of the most ridiculous, crazy or “blackest” names of children they have encountered in obtaining child support from them. Said “blackest” list was given to this ASA (a young White male) within the first few weeks on the job. Unfortunately, this “blackest” list is not an accident. It is deliberate and invoking a bias and stereotype culture on newly minted ASAs who primarily deal with Black and Hispanic families. Unless a new ASA can revoke this workplace culture, he or she is either involuntarily or voluntarily controlling Black parenthood through a biased lens given to him or her by the system.

Black parenthood has been controlled since before the Thirteenth Amendment, and immediately afterward in January of 1866, some states enacted legislation for maintenance of poor children in their communities.[11] For example, some states allowed courts and other officials to bind out newly freed children as apprentices to former slave owners whose parents were unable to financially care for them.[12]  No academic nor scientist is needed to understand that approximately one year after slavery, most recently freed Black parents were not prepared educationally or skillfully to obtain employment to advance to the proverbial middle class.[13] Just 12 months ago these Black parents were property who owned no property or sufficient income. These statutes permitted slaves states to apprentice previously enslaved minor children to their former masters in the event their parents were unable to provide for them.[14]  To the contrary, apprenticeship laws required White orphans and wards to learn trades and skills so they could financially support themselves.[15]  Yet, statutes maintained former slave owners’ wealth by simultaneously constructing barriers to financial prosperity to by only permitting Black children to return to their former slave master.[16]

            Coming in Part II – Modern Day Control of Black Families in Family Court.

[1] See, Dred Scott v. Sandford, 60 U.S. 393 (1856)

[2] Id.

[3] Personal thank you to Professor Cecil Hunt of UIC School of Law for this quote.

[4] McMurtry-Chubb, Teri A., “Burn This Bitch Down!”*: Mike Brown, Emmett Till, and The Gendered Politics of Black Parenthood. Nevada Law Journal, (May 2017).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Thomas D. Morris, Southern Slavery and the Law, 1619-1860 at 44 (1996).

[10] Id.

[11] McMurtry-Chubb, Teri A., “Burn This Bitch Down!”*: Mike Brown, Emmett Till, and The Gendered Politics of Black Parenthood. Nevada Law Journal, (May 2017).

[12] Id.

[13] Timmins v. Lacy, 30 Tex. 115, 116-17 (1867).

[14] McMurtry-Chubb, Teri A., “Burn This Bitch Down!”*: Mike Brown, Emmett Till, and The Gendered Politics of Black Parenthood. Nevada Law Journal, (May 2017).

[15] Id.

[16] Id.

About the Author:

Jason Pica

Jason is a senior associate attorney with Chicago Family & Immigration Services, LLC as well as a Staff Attorney and the Vice President on the Board of Directors of Chicago Advocate Legal, NFP. Jason founded J. Pica Mediation, LLC, where he is perfecting a mediation model specifically for families of color. He focuses his practice primarily on divorce and family law as well as adoptions, guardianship of minors in probate, and DCFS appeals. Jason received his Bachelor of Arts and Master of Social Work from Loyola University Chicago and his Juris Doctor from the University of Illinois-Chicago School of Law.

Disclaimer: Any opinions expressed within this article are those of the author(s). They do not necessarily purport to view or reflect those of the CBA/YLS unless explicitly stated.

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