Executive Summary Of The Amicus Brief Of The Center On Fathers, Families, And Public Policy To The United States Supreme Court

The Center on Fathers, Families, and Public Policy (CFFPP) and National Organization of Women Legal Defense and Education Fund submitted separate amicus curaie briefs for the United States Supreme Court to accept certiorari in the case State v. Oakley. In this case, a bitterly divided Wisconsin Supreme Court upheld the right of government to restrict a parent's fundamental right to procreate based on his or her financial situation. It is, in the words of Wisconsin Supreme Court Justice Bradley, the first case "to declare constitutional a condition that limits a probationer's right to procreate based on his financial ability to support his children." See State v. Oakley, 629 N.W.2d 200, 216 (Wis. 2002) (Bradley, dissenting). According to data from 1997 National Survey of America's Families, in the United States, 2.5 million noncustodial parents do not pay child support and are poor themselves. See Elaine Sorensen & Chava Zibman, URBAN INST., Poor Dads Who Don't Pay Child Support: Deadbeats or Disadvantaged? (April 2001). For these parents, this decision will enable government to restrict their fundamental right to have children. The Wisconsin Supreme Court's decision is unconstitutional and, for related reasons, unwise. This summary outlines some of the key points contained in the amicus brief of CFFPP.

The application of this probationary condition is different from that of any other government program that attempts to influence a low-income citizen's decision whether to have children. This probationary condition is part of a trend to regulate and control low-income families' procreation rights. Yet it is the starkest example of government interfering in so fundamental of a right. This is not a case in which the state is distributing resources in a manner that merely influences procreative decisions. Instead, for very low-income noncustodial parents, the Wisconsin Supreme Court has granted judges the power to place an absolute bar on the right to have children.

Further this probationary condition varies from other government influences in another significant manner. In this case there is a serious impact on the woman who is the mother of the child fathered by Mr. Oakley after the court order. The application of this probationary condition might tend to encourage abortions. A woman who through misfortune or even carelessness becomes pregnant by Mr. Oakley could feel a substantial pressure to have an abortion, because the only other alternative sends Mr. Oakley to jail and, thereby, eliminates any chance the child's father would have the income to pay support.

Finally, even if such a probationary condition could ever be sustained, the one in this case fails to provide guidance to future noncustodial parents potentially facing this probation condition or to fathers such as Mr. Oakley. First, future noncustodial parents charged with not paying child support will lack guidance as to whether a judge will impose this condition on them. This will allow for the idiosyncratic tendencies of each judge to determine who gets to exercise the fundamental right of procreation. This over broad discretion is problematic because societal trends to limit the right of poor persons' to procreate are intertwined with racist notions about the biological and socio-cultural inferiority of African- Americans and other people of color in this country. Second, the lack of definitive guidance to any noncustodial parent given this probation condition offends the procedural aspects of the due process clause of the United States Constitution. The trial judge's order fails to provide guidance as to when Mr. Oakley is sufficiently supporting his child that he may petition the court for permission to have another child.

Separately, the principal premises underlying the Wisconsin Supreme Court's decision are simply wrong. The court justified its opinion by contending that the failure of noncustodial parents' to pay child support victimizes their children by increasing their likelihood of living in poverty. Yet the child support system was not designed to eradicate poverty for low-income families. In most states, the poorest members of our society, recipients of TANF cash benefits, do not even receive the child support that noncustodial parents pay. For low-income families the process of determining the amount of child support a noncustodial parent must pay is fundamentally flawed. Moreover, often initial child support orders do not reflect the parents' true ability to pay child support. Once these child support orders are set it is extremely difficult for low-income fathers to get the order modified down to a lower amount in accordance with state guidelines. Both low-income custodial and noncustodial parents face many difficulties sustaining employment thus they often need such modifications. This lack of steady employment and insufficient income explains why the payment of child support by low-income noncustodial parents will not significantly reduce poverty. Even if the child support system worked appropriately for every family and the payment of child support could significantly reduce poverty, this probationary condition will negatively impact low-income families. It is another example of government decision-makers imposing their moral values on low-income families. It is indicative of a trend in the government to place limits on the fundamental right of poor persons to procreate. You may obtain the full amicus brief by clicking on the following link AMICUS BRIEF.