by Killeen Gonzalez
May 5, 2011, marks the 25th anniversary of the controversial Bradley Amendment. In 1986, the Bradley Amendment was enacted into federal law as an amendment to Title IV of the Social Security Act thanks to the likes of then-Democratic Sen. Bill Bradley.
What is the Bradley Amendment?
The Bradley Amendment is a series of laws that were designed to prohibit non-custodial parents from having their child support arrears reduced or eliminated regardless of the circumstances. In addition, the amendment allowed child support enforcement workers to disregard changes in a non-custodial parent’s circumstances like job loss, incarceration, military service or physical disability in certain instances.
Furthermore, it gave the same workers the ability to pursue legal remedies against the non-custodial parent the moment a payment was missed without having to first go through a quasi-judicial or judicial proceeding. These legal remedies included asset seizure, un-expiring property liens, driver’s license suspension, professional license suspension, suspension of voting privileges and incarceration.
Why is the Bradley Amendment Controversial?
Opponents believe that, in part, by granting such capabilities to child support workers, the Bradley Amendment effectively disregarded the non-custodial parent’s constitutional rights of due process and equal protection as well as disregarded the unconstitutionality of what equates to nothing more than a “debtors’ prison.”
The rights of due process and equal protection were given to Americans after the Civil War as part of the 14th Amendment to the U.S. Constitution. Although 14th Amendment violations are most often cited by social advocacy groups, arguments have also been made that the Bradley Amendment violates the fifth, eight, ninth and 10th amendments as well.
Due process essentially ensures that all Americans are entitled to be heard in their own defense, have a right to legal representation even if they cannot afford a lawyer on their own, have a right to a fair and public trial with a jury of one’s peers and property taken by the government may only be done for public purposes and the government must reimburse that person the fair market value for that property.
The right of equal protection goes hand in hand with the right to due process and is designed to keep states from unfairly applying its laws to individuals under their jurisdiction. In this case, opponents of the Bradley Amendment believe that the laws are unfairly applied against the poor.
According to the Southern Center for Human Rights, in the state of Georgia alone there are over 500 non-custodial parents who are incarcerated over failure to pay child support. Of those non-custodial parents currently incarcerated, the majority were not given legal representation and are considered indigent.
The group’s website also cites that 70 percent of outstanding child support debt in this nation is owed by non-custodial parents who make less than $10,000 a year. According to the federal government’s poverty guidelines for 2011, an individual making $10,890 or less a year in most states is considered poor. This gives credence to the argument that the Bradley Amendment unjustly targets people living at or below poverty level.
Furthermore, another item that has been called into question related to the Bradley Amendment and the child support system as a whole is the money trail associated with child support enforcement. What many people may not realize is that not all money collected by child support enforcement workers goes to the custodial parent; some of it goes to the state and federal government to pay welfare debts.
Moreover, the state receives matching federal funds. Those matching funds then go, in part, to pay the salaries of the child support workers, as well as the law enforcement and legal representatives who assist them in collection efforts.
In addition, once a person is incarcerated, some prisons charge fines and fees to the inmates for such things as room, board and medical costs. Such was the case in Clinch County, Georgia, where detainees at the Clinch County Jail were unlawfully charged $18 a day for room and board regardless of whether they were later found innocent and released. A civil class action lawsuit was eventually filed on behalf of those detainees; the judge ruled that the sheriff had to return all illegal fees.
Challenges to the Bradley Amendment, Past and Present
Since its inception, the constitutionality of the Bradley Amendment, and child support in general, have been repeatedly called into question throughout the nation. Early cases in point include one from the Massachusetts District Court, one from Florida’s Sixth Judicial Court as well as the case of Michelle Sweat, which was heard in Georgia by Superior Court Judge C. Diane Perkins in February 2002. The judges in each of those cases found aspects of child support laws to be unconstitutional.
From 2004 through 2006, there were moves made on behalf of the American people to get both the courts and the U.S. Congress to repeal the Bradley Amendment entirely on the basis that it is unconstitutional. The case was ultimately dismissed in February 2006. That, however, was not the end of the discussion by any means.
In July 2008, then-presidential candidate Barack Obama and Sen. Evan Bayh came under fire for their introduction of the Responsible Fatherhood and Healthy Families Act of 2007, which was also seen as unconstitutional by some groups. The introduction of the act revived the earlier arguments against the Bradley Amendment, which brings us to the most recent challenge made to the constitutionality of the law.
On March 22, the Southern Center for Human Rights filed a civil rights class action lawsuit on behalf of six non-custodial parents from several Georgia counties. At this time, the case is still pending.
Congressional Research, “The Bradley Amendment: Prohibition against Retroactive Modification of Child Support Arrearages” Congressional Research
Associated Press “Parents Sue Ga. Over child support jail time” The Augusta Chronicle
The Law Office of the Southern Center for Human Rights, “Debtor’s Prison” Southern Center for Human Rights
The Law Office of Southern Center for Human Rights, “Georgia Deprives Children as Indigent Parents Languish in Debtor’s Jail for Inability to Pay Child support” Southern Center for Human Rights
William Akins, “Why Georgia’s Child Support Laws are Unconstitutional” Georgia Bar Journal
Cornell University Law School, “Equal Protection” Cornell University Law School
E Manning, “Obama Attacks Constitutional Rights of Non-Custodial Parents” Newsvine.com
Center for Law and Social Policy, “Responsible Fatherhood and Healthy Family Act of 2007” Center for Law and Social Policy
Christine Vestal, “Child Support Enforcement Takes a Hit” Stateline.org
U.S. Department Health and Human Services, “The 2011 HHS Poverty Guidelines” ASPE.hhs.gov
Phyllis Schlafly, “Repeal the Bradley Amendment” Restoring America
Alliance for Non-Custodial Parent’s Rights, “U.S. District Court of MA Civil Docket” ANCPR.com
Divorcenet “The Bradley Amendment: How Does it Affect Men’s Child Support” Divorcenet.com