'Deadbeat' parents must seek work or face jail.

Jumping into the debate over a controversial child support issue, the California Supreme Court ruled unanimously in February that unemployed parents who owe child support will be imprisoned for criminal contempt if they don't actively look for a job.

Opponents had argued that the practice would violate the Thirteenth Amendment's prohibition against involuntary servitude and the California Constitution's ban on imprisonment for debt. But the court found that "the obligation of a parent to support a child, and to become employed if that is necessary to meet the obligation, is in no way comparable or akin to peonage or slavery. It is among the most fundamental obligations recognized by modern society." (Moss v. Ortiz, 71 Cal. Rptr. 2d 215 (1998).)

The court declined to apply the new ruling to the case before it, acknowledging that its decision was an unanticipated expansion of the law of contempt in the child support context and a change in the evidentiary burden of which the parties had no notice at the time of trial.

The ruling effectively overturned the court's century-old precedent established in Ex parte Todd. (50 P. 1071 (Cal. 1897).) In that case, a man who had stopped making court-ordered alimony payments to his former wife and had made no attempt to get a job was jailed by a lower court until he paid the $200 debt.

The state supreme court overturned the ruling, holding that it lacked power to punish a person for failing to seek employment to pay spousal support. But in its one-page ruling, the court did not explain its holding. Later rulings assumed that Todd was based on the constitutional proscriptions on involuntary servitude or imprisonment for debt.

In Moss, Brent Moss owed $5,012 in child support payments for the two children he fathered with Tamara Ortiz, from whom he was divorced in 1992. Moss was unemployed when the support order was made. He performed odd jobs but was supported primarily by his mother, who paid his utilities and expenses and frequently fed him and the children when they visited.

Ortiz argued that Todd was not meant to apply to parental support obligations and that it should be overturned. Moss argued that a child support obligation should not be recognized as an exception to a rule otherwise "universally applicable" to the enforcement of monetary obligations.

In finding for Ortiz, the state supreme court noted that "the rule is not as broad as Brent [Moss] would have it." The court wrote that the obligation to support a child is not a contractual obligation that is entered into with knowledge that neither specific performance of personal services nor payment of a resulting debt may be enforced by imprisonment.

The court noted that the U.S. Supreme Court has consistently recognized that the Thirteenth Amendment does not prevent enforced labor as punishment for crime and does not prevent state or federal government entities from compelling the performance of civic duties such as military service, jury duty, and road work. "A parent's obligation to support a minor child is a social obligation that is no less important ... than other constitutionally permissible enforced labor," the court wrote.

Riverside, California, Supervising Deputy District Attorney James Fullmer, who represented Ortiz, agreed with the court's interpretation. "Failure to pay child support is nothing less than the crime of grand larceny from a child," he said. "Moss simply gives us a new tool with which to prosecute this crime."

Fullmer estimates that the ruling will "affect about 10 percent to 20 percent of the total California caseload."

Riverside Deputy Public Defender Taylor Huff, who represented Moss, said the ruling is just another example of a court overstepping its bounds and legislating from the bench.

"The step taken in Moss, if it should be taken at all, should be taken by the legislature. Then it's up to the courts to decide the constitutionality," Huff said.

In late March, the court denied a petition for rehearing.