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A growing frustration with fathers who don’t pay child support has led some judges to order them to stop fathering. An Ohio judge recently ordered as a condition of probation that Sean Talty, 30, who failed to pay child support, take “reasonable steps to avoid conceiving a child.” Talty owes more than $30,000 for the support of his six or seven children (the judge’s order says the exact number is unclear). Judge James L. Kimbler issued the order. State of Ohio v. Talty, No. 02-CR-0075 (Medina Co., Ohio, Ct. C.P.). Earlier this summer, the Wisconsin Supreme Court upheld a five-year conception restriction in the case of David W. Oakley, who fathered nine children with four women and owed $25,000. Wisconsin v. Oakley, No. 99-3328. Oakley has appealed to the U.S. Supreme Court. Critics say that the court is infringing on a fundamental right to bear children. The Wisconsin ruling came on a 4-3 vote, with all three female justices dissenting. The condition, a dissent argued, essentially imposed a “credit check” on the right to bear children. Patricia J. Falk, a family law professor at Cleveland State University’s Marshall College of Law, agrees: “That line of reasoning is very dangerous because it has the potential consequence of creating various classes of citizens in our country: those who can afford to have kids and those who cannot.” The Ohio judge pointed to a state supreme court decision saying that the condition of probation is not subject to strict scrutiny, even if it infringes on a fundamental right. State v. Conkle, 129 Ohio App. 3d 177, 179 (1998). Talty’s attorney, Joseph F. Gorman of Gorman, Malarcik & Pierce of Akron, Ohio, said he is urging Talty to appeal. Talty, however, sent an e-mail message to the judge accepting the terms and vowing to reform. Gorman said Talty has been reeling under the public attention the case has generated. As prosecutors and child-support advocates work to bring more cases against “deadbeat dads,” trial courts are left grappling with what will work to change their behavior. Prison is not a first option, say judges, because offenders are less likely to pay off debts from behind bars. “This is less of an infringement,” Kimbler said. “Were he in prison, he would not be exercising his rights of procreation anyway.” But the “pay up or zip up” policy, as it’s been called, raises eyebrows among civil rights advocates. Professor Laurence Tribe of Harvard Law School has joined the appeal for Oakley, and amicus help has come from the National Organization for Women Legal Defense and Education Fund and the Center on Fathers, Families and Public Policy. Tribe’s co-counsel, Thomas Goldstein of Washington, D.C.’s Goldstein & Howe, said that “this is not a policy debate — this is a fundamental right.” Goldstein said he recognizes that the rulings “have some emotional appeal,” but said “you cannot use the right to bear a child to send a message.” Assistant Attorney General Diane Welsh has opposed Oakley’s bid for certiorari. Welsh dismisses critics who say Oakley opens the floodgates to instances of the state policing people’s right to procreate. It could not be stretched, for example, to preclude a woman with six children on welfare from having another, Welsh asserted, because Oakley is a criminal proceeding, while welfare is not. “The language our supreme court used should dissuade trial courts from using it often,” Welsh said. The decision was based on the “egregious facts of this case,” she added, and should be applied on “a case by case basis.” THE ENFORCEMENT PUZZLE It is unclear how the courts will enforce the probation restriction. Oakley faces a probation rehearing and possible prison time if he fathers a 10th child. “Is wearing a condom reasonable? Is pulling out before ejaculation reasonable?” asks Alan Cobb, an assistant prosecutor in Louisville, Ky., who in March prosecuted a case against a father of 12 who owed $33,000 in child support. Cobb said he did not want to get into the question of what was “reasonable,” so he had the defendant sign an abstinence clause as part of his plea agreement. Ultimately, the court never ruled on the admissibility of the plea because the defendant was sentenced to jail.

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