Date: Friday, October 24, 1997 8:02 AM

Subject: Jailing for child support violates Slavery statutes:

To whom it may concern:

I am the founder of NJ Council for Children's Rights, and a pro se and father's rights leader on the East Coast. I am very interested in finding out the citation of the California case that addressed jailing for child support as being a violation of the Anti-Peonage Statutes.

In N.J. we have a serious problem with courts imputing incomes of out-of-work fathers at their last highest income, and then forcing them to make child support and/or alimony payments based on their last highest income. Imputing income is a fictional theory designed by the courts and lawyers, that if a man has lost his job and is on unemployment the courts can refuse to reduce the support obligations and base continuing payments on the previous highest income. Not only is this a violation of the 13th Amendment, but it is a blatant denial of Due Process and Equal Protection

Under the Laws. How can a person, who has been downsized out of a $50,000-$100,000 per year job and is on unemployment be forced to continue paying support at the level they were paying when they were making the big money? Many, many fathers have gone to court on motions to modify downwards upon losing their jobs or taking pay cuts, but the courts don't grant any orders to modify downwards. The men are then stuck with a huge accumulating arrearage based on a fictional income. Some of our so-called "learned" judges say that a man has to be out of work for at least nine months before they'll grant a downward modification. Before you know it these men are in the tens of thousands of dollars in arrearage. Arrest orders are usually issued during this time, with men being then imprisoned for debts. Talk about stress, coercion, tyranny and depression.

One point must be taken here: The so-called "Arrest orders" are nothing more than civil capiases, which are body attachment writs that have been outlawed by every state constitutional prohibition against Imprisonment for debt.

Capias is a writ of execution which commands the sheriff to take the party named, and keep him safely, so that he may have his body before the court on a certain day, to satisfy the damages or debt and damages in certain actions. It deprives the party taken of his liberty until he makes the satisfaction awarded. A body execution enabling judgment creditor in specified types of actions to cause arrest of judgment debtor and his retention in custody until he either pays judgment or secures his discharge as insolvent debtor. Perlmutter v. DeRowe, 58 N.J. 5, 274 A2d 283, 286.

Capias is a writ of execution issuable in England against a debtor to the crown, which commands the sheriff to "take" or arrest the body, and "cause to be extended" the lands and goods of the debtor.

In N.J., however, these writs are alive and well and are usually called "warrants". Also, in N.J., there is a statute saying that women cannot be arrested on civil process with Capias writs. We are challenging these alleged "warrants" on the basis that they violate the constitutional prohibition against Imprisonment for Debt, and that they do not comport with any of the Fourth Amendment's requirements that a crime is being committed, has been committed or that there is criminal intent to commit a crime. So far, we have stirred up a hornet's nest, and have a couple of legislators proposing legislation stopping arrests for child support as being nothing more than imprisonment for debt. As part of the challenge, we are also arguing that state court judges cannot issue arrest orders and have them carried out by county sheriffs' departments. This is a conflict of interest between to different forms of governing bodies and more importantly it violates separation of powers--judges (judiciary) cannot order sheriffs (executive) to go and arrest people.

Based on Hicks v. Feiock (1988) 485 US 624 This can be found at http://www.usscplus.com

First of all, some states have gotten smart after Hicks was ruled on, and made failure to pay child support a "civil contempt" rather than a quasi-criminal. In CA contempt for failure to pay C$ is still deemed quasi-criminal, and if you receive a warrant from the DA - it will say that criminal charges have been levied against you. Although Hicks ruled that the charging document on its face does not necessarily pass the standard for a criminal contempt - what does though, is whether or not the contempt has a "purge" clause. That is to say if it is within your power to "purge" the contempt, the contempt is civil in nature and not criminal.

Now Moss states that regardless of that, placing someone in jail for failing to pay a debt is flat out unconstitutional. Moss made headway and ruled that an "obligation" to pay is the same as a debt.

I'm sure that most of you noticed, that despite Webster's and Black's Law, and common sense (???) that the courts consistently rule that child support is an obligation and not a debt. Moss ruled that both are one in the same and involuntary servitude is unconstitutional. Moss also ruled that orders from the court for obligors to find work to pay support is unconstitutional.

Moss flatly ruled that inability to pay is an affirmative defense and that the burden to prove 'beyond a reasonable doubt" that the obligor is able to pay is then shifted to the prosecution. To do any less is taking away from the state the mandate to prove its case, and placing the burden of proving ones innocence on the charged party - which is also unconstitutional.

The major hurdle though, is trying to invoke Hicks in states that rely on their contempt as "civil in nature." I throw out to those who are in such states to challenge this by stating that the orders placed against them are not based truly on ones ability to pay, nor the joint income of both parents, and thus the ability to pay is beyond the control of the person in contempt. I would then also propose to the courts that work orders against a father, and/or ability to pay standards be applied in the same fashion to custodial mothers, if not, then the courts are violating constitutional rights of equal protection under the law.

http://www.divorcetn.com/d5.htm

Briefly, the Tennessee Supreme Court Ruled in Jan 1996 you have the right to be tried by a jury if you are charged for violation of Tenn. Code Ann. Sec. 36-5-104, child support, which was held in Brown v. Latham to be a criminal statute, (for Tenn. Code Ann. Secs. 29-9-102 & 103, criminal contempt, the issue of whether you are entitled to a jury is pending appeal) and at that trial you have the right to the assistance of counsel, the right to confront and cross-examine witnesses against you, and the right not to be compelled to incriminate yourself.

Probably some right wing Christian patriarchal father wacko pinko nut who still thinks children should be cared for their fathers, but if this nut just happens to be right, then the win-win situation should be the one which gets the child OUT of the mother's care, and INTO the fathers'.

Gosh, if I can remember where I saw that data, I will post the cite.

But, most of these judges are married, not divorced, look at their campaign fliers next time if you don't believe me. They've never had to sweat financially and also don't give a damn because they are totally unaccountable for their actions. A lot of them are judges because they can't function as lawyers. We need to start suing every one of them like some of my friends have already done. Make these bumpkins look over their shoulders. If you have friends who are good judges, pat them on the back the next time you hear of them doing the right thing.

God Bless All!
Milton Witty

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