Jailing Fathers Who Can't Afford Braces

(or why Charlottesville, Virginia is NOT the “Best Place to Live in America” for Divorced Fathers)

by Larry White

 

On March 30, 2004, Frommer's Cities Ranked and Rated gave Charlottesville, Virginia the rating of “Best Place to Live in America.” But, as a divorced father who's gone through Charlottesville's “family court” system I know that Frommer's rating is a long way from the real truth.

 

By way of introduction, I am a fifty-one-year-old divorced father of five children and computer analyst living in Charlottesville, Virginia. My second oldest son, Daniel, is a former student at Tandem Friends School, a nationally acclaimed private Quaker school in Charlottesville. He was sentenced to eight years in prison August 2003 for his tragic involvement in drug-related crimes that occurred, sadly, less than six months after his graduation from high school.

 

This story is about my attempts to come to the aid of my troubled son, Daniel, in the months before his arrest. This is also the story of my experiences of being a father with a son in prison, interwoven with my own legal encounters with our “family court” system. More generally, this article is about the enormous legal obstacles facing hundreds of thousands of divorced fathers in our society today. These fathers who try to maintain close ties with their children post-divorce often face a legal system that routinely discriminates against them and damages their relationships with their children.[1]

 

I dedicate this article to my son Daniel, the thousands of divorced fathers who've already lost contact with their children through no fault of their own, and all the children of divorce.

 

On a personal note: it is impossible to convey the deep pain I continue to feel as a parent, knowing of my son's involvement in violent criminal acts, actions which run counter to every moral value I've ever tried to instill in my children.

 

Before Daniel's Arrest

 

My son Daniel was foremost in my mind as I was packing up my belongings and preparing to leave my job as a senior programmer analyst at the University of California, San Diego in April of 2002. It was during one of my earlier Sunday evening telephone conversations with Daniel that he told me of his plans to run away from his mother's home and drop out of high school his senior year to move into an abandoned house. [2]

 

I felt so powerless being almost twenty-six hundred miles away from my son. I remember saying to him over the phone: “Hold on just a few more weeks and I'll be back in Virginia with a place for you to live.” I thought at the time it was a blessing that I worked in the computer field as I figured I would quickly find a new job upon my arrival in Virginia.

 

Two years prior, I had moved away from Charlottesville and taken a computer job in San Diego, California in order to maintain the high child support payments that I have been ordered to make ever since my separation and divorce from my ex-spouse in October of 1992. The same Charlottesville court that ordered my high child support payments also refused to enforce its own visitation orders while I was living in California – leaving me with a sense of uncertainty and doubt as to my ability to see my kids whenever I came to Charlottesville for “visitation.”

 

The term “visitation” is legalese for the time the non-custodial parent spends with his/her children. It's a word that devalues and even debases the “other parent” and the time children spend living with that parent.

 

Back in Virginia

After I moved back to Virginia things calmed down for Daniel. He graduated from Tandem School in June of 2002 and forgot his idea about moving into an abandoned house. Eventually, he and his older brother moved into their own apartment in town and seemed to be doing very well.

 

The computer analyst job market in Charlottesville was unusually tight and difficult in the spring of 2002. And after much job hunting the only position I could find was a temporary job as a file clerk working for the UVA Health System.

 

However, the poor job market failed to dampen the joy I felt at the time. I was back in Virginia again with my kids and seeing them on a weekly basis. And my two oldest sons had jobs and were thriving in their new apartment. I remember how the three of us would go bowling together at Kegler's on Monday nights; Daniel would always beat us with his “three strikes in a row” maneuver. It couldn't get much better than this for a father who loves his kids.

 

Then the first dark cloud came across the sky.

 

Fictitious Imputed Income

 

I had earlier petitioned the Albemarle County Circuit Court, in Charlottesville, for a child support recalculation and reduction because I was still being forced to pay support payments to my ex-spouse for my twenty-year old son; payments that were supposed to end when he reached age eighteen.

But instead of reducing my payments, on September 24, 2002, Judge Paul M. Peatross increased them ordering me to pay support payments to my ex-spouse totaling roughly 81% of my monthly take-home pay! I was acting as my own lawyer at the time because I couldn't afford competent legal counsel. And I'm pretty sure this did not help my case.

 

When Peatross recalculated my support payments, he did not base his calculations upon my actual earnings from the job I held in Charlottesville at the time. Instead, he relied completely upon a fictitious “imputed” income, a figure derived from the earnings at my last job in San Diego, where the wages and the cost of living are much higher than Charlottesville. This fictitious income figure was 352% of the total gross income I earned for the 2003 tax year! [3]

 

A couple of months after the devastating Peatross support ruling, I traveled to San Diego to help my fiancée move her things out to Virginia so that we could be finally be together again and get married. It took us several days to pack everything…moving is always such a chore… and then finally it was all over and we were in the car together driving north up to LA, on our way back east to begin our new life in Virginia.

 

No Joke

It was our third day out, December 15, 2002, and it was a Sunday. My fiancée and I were gazing at the tranquil landscape as we drove across eastern New Mexico together and I looked down at my watch: it was time to make my Sunday telephone call to my kids. Because of the miracle of cell phones, I called them right there from the car. But something was different in their voices. As I spoke to each one of my kids they seemed unusually somber. When I asked them if anything was wrong, they replied “Everything's okay, Dad.” Then, my youngest son came onto the phone. He is quite a jokester and somewhat theatrical by nature.

 

He pretended to be reading a preposterous newspaper headline to me and I figured this was just another one of his pre-teenage gags. But, after repeatedly asking him to “stop joking around” the horrible realization came into my head: this was no joke – my youngest was reading an actual headline to me from Charlottesville's Daily Progress newspaper!

 

To my utter shock and dismay, my son Daniel had been arrested and charged, along with a former Tandem classmate and two other adults, with several violent felonies including burglary, grand larceny and abduction. I was truly sickened with disbelief and left in a deep state of shock. How could Daniel, a very intelligent, caring, community-oriented youth leader, commit such acts of violence?

 

After Daniel's Arrest

The next six months that followed were a blur of frantic phone calls to lawyers, family and friends and frustrating trips to the Albemarle-Charlottesville Regional Jail (ACRJ) to visit my son.

 

I quickly learned that justice in the criminal court system comes at a price… paid to private lawyers who, unlike the overworked public defenders and underpaid court-appointed lawyers, have the time and resources to prepare an adequate legal defense for a person charged with serious crimes. By the grace of God, Daniel's church was able to collect a sizeable contribution towards his legal defense, which was used to hire a good lawyer.

 

And if I may digress, I would like to describe my visits to see Daniel at the ACRJ.

 

These visits were very infrequent due to the highly restrictive visitation policies at the ACRJ. And once I was at the jail, I could never be sure whether or not the staff would allow me inside to see my son because of frequent “computer glitches” and “problems with paperwork.”

 

But, the in-person communications during visitation at the ACRJ were even more problematic. They consisted of visitors and inmates all shoving their mouths up into the cracks of the much used metal frames holding thick slabs of bullet-proof glass and then shouting into the glass so they could hear each other's voices. There are no real visitation facilities at the ACRJ and the families of inmates and other visitors are punished by the present arrangement of always having to “shout through the glass”.

 

It was a strange feeling… I was starting to get used to the idea that I had a son in jail.

 

 

Braces or Jail?

 

About a year after I moved back to Virginia and Daniel had just finished serving his sixth month at the ACRJ, Judge Peatross returned to my life, at my ex-spouse's request. On June 5, 2003 he strongly admonished me from the bench for failing to make full payments to my ex-spouse that totaled 99.6% of my annual take-home pay for the 2003 tax year. Peatross uttered to my lawyer in court something to the effect: “I'm going to throw him in jail unless he makes these payments.” And you could tell the judge meant what he said. I had accrued an “arrears” from the previous year because of the courts' use of fictitious income in its child support recalculations. So, now I was a “deadbeat dad” whose “willful failure to pay child support” apparently merited strong punishment including incarceration.

 

Peatross also ordered me to make additional payments for my children's so-called “medical expenses” not covered by insurance. These costs were largely for cosmetic braces for my teenage kids! With these additional amounts and arrears payments the total court-ordered payments to my ex-spouse came to 156% of my take-home income for the 2003 tax year. Being forced to make these extraordinary support payments has now placed me deeply into debt and there is no end in sight.

 

Meanwhile, my ex-spouse, who remarried in 1995, sends our school-age kids to the same expensive private school where Sissy Spacek sends her daughter. She also pays for the kids' high school trips to France, Spain and Mexico and buys them their own ponies as gifts.

Common sense would seem to tell us there has got to be something terribly wrong with a legal system that produces such ludicrous and destructive outcomes for divorced fathers. Why do our courts place so little value upon the household in which the children live when they are in the care of the non-custodial parent? [4] And why are fit and loving non-custodial parents acting in the best interests of their children routinely denied equal access to their kids by court-ordered “visitation” consisting of only a few days each month?

 

Sadly, I have learned that my awful experiences as a divorced father struggling with the Virginia “family court” system are not isolated. These experiences are loudly echoed again and again in recent magazine articles and on the homepages of thousands of web sites across the United States. [5]

 

Civil Contempt and Civil Rights

 

On June 24, 2004, I am scheduled to appear once again before Judge Paul M. Peatross. I have not committed any crimes. I have never been arrested in my life. Rather, it is my inability to pay for the cost of braces for my teenage kids that could very well land me in jail for an unspecified period of time.

What about those fundamental legal protections, a cornerstone of our American system of criminal justice, that would provide that all “deadbeat dads” facing incarceration in our civil courts receive free legal counsel when they cannot afford an attorney, the right to a trial by jury, and judgment by the higher standard of legal proof befitting a person facing incarceration: “beyond a reasonable doubt” instead of the lower standard: “preponderance of the evidence?”

Our current civil court system lacks all of these protections in its proceedings against divorced fathers. And it allows judges like Paul M. Peatross to arbitrarily imprison divorced fathers without according them any of the basic legal rights enjoyed by those arrested and accused of a crime within our criminal justice system. This arbitrary imprisonment is accomplished through judicial abuse of our civil contempt laws. These laws were never designed to be used as an enforcement tool to imprison divorced fathers for non-payment of debt; debtors' prisons were abolished in this country in the mid-1800s.

 

Fathers in Jail

 

I now go and visit Daniel monthly at the high security prison where he is serving his sentence. He tells me he is the youngest inmate in this facility. He seems so strangely out-of-place here, but his spirit is unusually strong and he manages to find a niche for himself in spite of it all. He and I play a lot of card games when I visit. And he always beats me at chess.

 

Let me say, there is nothing more equalizing than the experience of having a family member in jail or prison. Regardless of your wealth, social stature or education, when you have a family member in prison you suddenly have a great deal in common with the mothers whose sons were convicted of drug dealing in the “projects” or the grandparents whose youthful grandson is serving a thirty-year sentence for armed robbery.

 

What is especially startling is the number of children I see in the prison visitation rooms. These are the children of incarcerated parents for whom guard towers and razor-wire walls have become a normal part of life.

 

Awhile back another inmate at the prison wrote me a letter stating that he didn't think Daniel had a criminal mind and that he didn't really belong there on the “inside” with the other hardened criminals. I cried after reading this letter because it expressed the sentiment I've felt from the very beginning.

 

My son did commit these crimes and he must take responsibility for his actions. But, I'm not confident that sending a youthful, first-time offender like Daniel to the “university of criminality” is best thing for him or society. And this experience of having a son in prison has also made me think a lot about prisons in general.

 

How many divorced fathers are currently in prison right now only because they were too poor to afford adequate legal representation at the time of their “arrears” hearings? What about those fathers who have been jailed because they were unable to pay the unjustly high child support awards regularly set by our “family courts?”

 

Speaking as a divorced father, I have a feeling we've a long struggle ahead of us before the irrational laws governing child support, visitation and custody are changed and limits are placed upon the judiciary's discretion in these matters. I pray that someday divorced fathers will be given the equal parenting time they deserve with their children and the credit they've earned for all the support they provide.

 

Larry White, divorced father and devoted non­-custodial parent,
resides in Charlottesville, Virginia with his wife and part-time

with his three younger children.


Email: larrywhite@virginiaisforlawyers.com
http://www.virginiaisforlawyers.com


© 2004 Larry White .

 

 

[1] See the following articles, which document the full extent of the destructiveness of our present system: Harry Jaffe, “In Defense of Deadbeat Dads,” Men's Health, June 2003; Stephen Baskerville, “The Myth of Deadbeat Dads,” Liberty Magazine, (June 2002); Ronald K. Henry, “ Child Support at a Crossroads : When the Real World Intrudes Upon Academics and Advocates,” Family Law Quarterly, Vol. 33 No. 1, 1999.

These articles can be download from my website: http://www.virginiaisforlawyers.com/articles/articles.htm

 

[2] There was testimony at Daniel's sentencing hearing in Charlottesville on August 12, 2003, by a Tandem School parent, that confirmed Daniel's plans to run away from his mother's home in the early part of 2002.

 

[3] Besides the fictitious “imputed” income figures regularly used by the courts, the following book and article demonstrate the fundamental economic and mathematical falsehoods embedded in our current child support guidelines: Robert Ingall, Child Support's Wacky Math: How Errors in Math and Logic Used in Determining Shared-Custody Child Support Creates Unfairness and Discord in the Commonwealth of Virginia , (Writers Club Press, April 2002); Sanford Braver, D. Stockburger, (in press). “Child support guidelines and the equalization of living standards.” In W. Comanor (Ed.) The Law and Economics of Child Support, Edward Elgar Publishing.

 

[4] The Virginia child support guidelines § 20-108.2 definition of a “day,” crucial for the purposes of calculating respec­tive child support obligations of the parents, greatly favor the custodial parent and produce an artifi­cially low “day count” for the non-custodial parent. This makes it all but impossible for most divorced fathers, including myself, to qualify for any credit for all the support we provide for our children under a typical visitation order issued by the courts of Virginia. I care for my children at least 104 days a year and yet don't receive a penny's credit for their support under the current law.

And even those few divorced fathers who qualify for the credit are often forced to pay thousands in legal fees just trying to “prove” to the courts they are entitled to this statutorily mandated reduction!

 

[5] See endnote #1 .