No Procreation Until Dad Starts Paying Back Child Support?

On behalf of The Marks Law Firm, L.L.C. posted in Child Support and Criminal Non-Support on Thursday, May 15, 2014

States have struggled with how to make sure parents support their children. Once a court or and administrative agency issues a child support order, each state has a division of child support enforcement that tracks child support payments and may take a variety of steps once a parent falls behind in support. These state remedies range from wage garnishments to property attachments to civil contempt proceedings to criminal prosecution for nonsupport. The goal of child support enforcement is not to punish a parent in arrears but simply to get that parent to act responsibly.

A recent Ohio case pushes the limits of what is responsible for both a parent and a court. In State v. Asim Taylor, the State of Ohio chose to prosecute Asim Taylor, an unmarried man, for criminal nonsupport, a felony. He is perhaps an extreme version of a “deadbeat dad,” having fathered four children with four different mothers, and having arrearages to all four in excess of $96,000.00. At the time of his guilty plea, he was employed and earning income sufficient to retain a private attorney, but he willfully refused to pay his child support. The trial court, to encourage responsibility, added a condition to his probation (he received a suspended imposition of sentence so he could continue to work and support the children) that he could not father any children until he demonstrated to the court that he could act responsibly in supporting his children.   The trial court worded the condition that once he began showing responsible support of his children, the trial court could lift the no-procreation condition. Mr. Taylor challenged this limitation on his ability to procreate as unconstitutional and appealed.

The Ninth Judicial Circuit of the Ohio Court of Appeals this week upheld the condition of “no procreation.” It did not reach the full merits because Mr. Taylor failed to provide a complete record on appeal to the appellate court; however, one judge concurred separately and did reach the merits, finding the facts of the case so egregious, especially Mr. Taylor having income and refusing to pay his support and showing no remorse for not doing so, that limiting his right to create further potentially unsupported children until he could demonstrate responsible behavior was sufficiently narrowly tailored to survive any constitutional problems.

We can all agree that intentionally failing to support one’s child offends our sensibilities, so long as that individual has the ability to contribute some support, if not the court ordered amount. We can all agree that these “deadbeat” parents drain limited state and federal resources by having tax revenues replace the child support. But to limit the ability to procreate, while a logical solution to the problem, has troubling legal implications.

First, the U.S. Constitution has long protected the right of an individual to procreate – not just to engage in sexual relations, but also to produce offspring. Indeed, the Court considers the right to procreate a fundamental right. Generally, the state must have a compelling reason to limit a fundamental right and it must survive “strict scrutiny,” meaning it would be the least restrictive means available to achieve the desired goal. If the goal is simply to make Mr. Taylor pay his support, the court could use wage withholding and a condition that he remain employed and report all employers and income to avoid going to prison. It could require regular reporting and supervision of activities and finances to the court or the probation officer. It need not limit the ability to procreate.

Second, and more troubling, the logic of punishing Mr. Taylor in this manner leads to a slippery slope of government conditioning receipt of benefits tied to not reproducing. If the real purpose of prohibiting procreation is to keep an irresponsible parent from adding to the public dole more children who will not have a source of parental support, that social policy would also apply to a wide range of other parenting issues – beginning with the mothers who willingly had a child with Mr. Taylor knowing his history of not supporting children. Should they be denied state benefits of support unless they agree not to have any more children? What about parents who abuse or neglect their children? What about parents with little parenting skills? Where do we draw the line? Obviously, logic suggests that limiting all of these less-than-fantastic parents will reduce the number of future children needing support; it will not necessarily serve as sufficient incentive to become better and more responsible parents. The natural extension of this logic would be to have a Big Brother regulatory regime that polices reproduction based on what the government deems irresponsible parental behavior. And we also have an Equal Protection issue – only individuals under a court order or receiving benefits would be at risk, while other, perhaps less worthy parents get to continue reproducing.

It may seem like a good idea to curtail the number of children left without sufficient parental support, but restricting procreation directly seems extreme, unconstitutional and, from a practical standpoint, too after the fact – stopping a parent from having more children to support will not make that parent start supporting his or her actual children.

Missouri and Illinois have many ways to assist parents not receiving support obtain support. If you have problems with a parent not paying support, contact our St. Louis family law attorneys – we can help.