Court didn’t hold an ability to pay hearing? Motion to Vacate Contempt Order Template for Illinois v2_5
You asked for a continuance but got denied and now you have to pay a purge or go to jail? And you are told that you are done, there is nothing more to fight. We might have found another way for you to challenge.
The courts have been taking advantage of parents for far too long. Too many parents are being put in jail and not able to receive fair hearings on their ability to pay. Even when most parents have an attorney they still either go to jail or are told to pay a purge amount or both. And most of the time the parent who didn’t have the ability to pay in the first place is told to pay a purge that naturally they, duh, cannot pay either. And then the parent is told that they hold the keys to their own cell because if they pay they don’t have to go to jail. But guess they didn’t get it the first time…the parent CANNOT PAY!
This has become an epidemic in our courts. Courts all throughout the United States do not have adequate ability to pay standards. In fact, they don’t have any standards at all. If the judge thinks you have a quarter in your pocket they declare that you have the ability to pay. They tell parents to sell their car, that barely runs, or that they have the money to pay because they have a smartphone or a computer! They will strip the shirt off of parents backs not have any regard for whether the parent can sustain their own life. Oh well, guess that parent won’t survive to the next month. So what is the end result of this madness, is that parents are not surviving this or they are having to disappear, go underground, just to get away from the madness, a cycle where there is no way out and nowhere for them to turn.
The attorneys who were supposed to protect them are too expensive for them to use and worse even those who have been able to scrape enough together to use them, they just paid them to hold their hand to the jail cell!
It’s almost like a bad movie being played over and over again. If a high conflict divorce with children is in the courts you can just about set your calendar and watch as one parent is driven into bankruptcy and eventually goes to jail for not being able to pay child support.
Many parents ordered to pay child support cannot even support their own basic necessities. Did you know that many of the parents being sent to jail already have their wages garnished to the maximum amount?
So we have published these sample motions (just as a way to share what we found during our research not as a means for you to rely on these) for parents in Illinois so that they can see that there might be something they can do even if the court has already held YOU in contempt for nonpayment of child support.
We are sick of these courts taking advantage of parents and making it ridiculously difficult for them to be heard fairly.
Incarcerating parents in debtor’s prisons has become an epidemic. Judges are taking advantage of hardworking parents.
If you are a parent who is already being garnished and yet the other parent through their attorney keeps filing to have you held in contempt for not paying more, you will want to know this information.
Here is what we discovered in our research: The court is required to rule on this request in 7 days (if they don’t reject the request for some legal technical grounds). Anyway, if they deny the motions then we believe you have 30 days to request the Illinois appellate court give you permission to file a challenge in the appellate court.
This problem has been going on for so long, here is what a law article stated in 2008!
“Incarceration of indigent obligors for nonpayment of child support represents a serious failure of the system. It is a social failure because it does little to generate child support payments, and it increases the economic marginalization of the persons whose economic success is critical to achieving the goals of the program. Use of contempt in these situations also drives wedges between family members whose cooperation could significantly contribute to the child’s well being. Furthermore, for the large number of indigent fathers who flee to the “underground economy” to avoid their inevitable return to prison, contempt sanctions permanently remove them—usually both socially and economically—from the child’s life. The legal failure represented by incarceration of indigent parents for contempt is—if possible—even greater than the social and economic failure. Criminal contempt is supposed to be a punishment for willful misbehavior, not for an absence of funds.3 Civil contempt is supposed to be used to coerce a person to do something that he is able, but unwilling, to do.4 In either case, if the contemnor’s failure to pay the sums ordered by the court is simply a result of inability to pay, his incarceration can only be characterized as imprisonment for being poor.5” ~ “Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison, 18 Cornell J. L. & Pub. Pol’y 95, 117 (2008).”
In addition, there is some case law to help you show your court that incarcerating for not having the ability to pay child support is unacceptable and frowned upon by the appellate courts:
See also, e.g., McBride v. McBride, 334 N.C. 124, 131, n. 4, 431 S.E.2d 14, 19, n. 4 (1993) (surveying North Carolina contempt orders and finding that the “failure of trial courts to make a determination of a contemnor’s ability to comply is not altogether infrequent”). ~ cited in Turner v. Rogers, 131 S. Ct. 2507 – Supreme Court 2011”
Want more case law for Illinois to help you argue that you as a FIT parent have a right to care directly for your own child, have a right to family integrity, and a right to be free of government interference, go to this blog post.
This post is being made available to recognize that parents like Ray Granstrom and Kash Jackson who have been fighting to be equals in their children’s lives are being devastated financially by the very courts that are supposed to be protecting this right; and in memory of all parents and children who have lost their lives because of the family court injustices.
*Remember to take anything out of the samples that do not apply to you and run it by an attorney. We are not attorneys, do not practice law, and are not responsible for any consequences that you suffer using any information from anything we publish. We publish as an important public service about important public issues. (Remember that this is very, very new. You might be the first person to raise this in your case. Our biggest concern is that there are some very technical issues around the -1301 and -1401 statutes and more case law and understanding of these technicalities may be needed in order to use these successfully. Discovering paths for relief and ways to protect your fundamental constitutional rights are what we specialize in. If you have an attorney who would like assistance in this area, you can contact us here.)
WARNING: The statutes posted in this sample are not legal logic and have not been approved by any attorneys or anyone who practices law. This is just research that is being shared with all of you. If you plan to try and use it please do your own research to make sure that this is the correct application for these statutes.