Child Support, Contempt of Court, and (Maybe) Lawyers

Posted by:
Category: Family Law, Public, U.S. Supreme Court
10 Comments »

This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support.  Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case.  A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying.  Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay.  He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.  At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.  On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented.  Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective.

Turner’s situation is sadly familiar.  He is a person with apparently few financial resources who is also, according to his own account before the family court, a recovering drug addict.  He was ordered to pay $51.73 per week in child support beginning in June 2003, and over the next 3 years he was held in contempt five times for failure to pay.  He was sentenced to a 90-day jail term each of the first four times he was held in contempt, but on each occasion he came up with the money either before he had to serve any time, or after a couple of days in custody.  The fifth time, he actually served an entire six-month term in jail.  He remained in arrears, was ordered to “show cause,” failed to show up for his hearing, and ultimately was held in contempt and sentenced to 12 months in the proceeding being contested in the instant SCOTUS case.

What is a judge to do with such a guy?  On the one hand, it seems like a no-brainer that a drug addict presumably without steady employment is not able to pay his child support, and incarcerating someone for being unable to pay his bills seems like a throwback to the debtors’ prisons of Charles Dickens’ England.  On the other hand, notice that Turner – like countless others in his situation – magically came up with the money owed for support the first four times he was sentenced to jail time.  This phenomenon is commonplace.  Not every person who is in arrears is dishonest, but the truth of each situation is not easy to ascertain.  After all, the parents usually seem to be supporting themselves at least to some degree, even while they claim destitution with respect to their children’s needs.  As Justice Thomas discusses in his dissent, child support orders are notoriously difficult to enforce, and parents who owe (nearly always fathers at this point in history) may engage in all sorts of subterfuge to avoid payment, for example, working “off the books” for cash, or working in illegal occupations.  This is a huge social problem in this country.

According to the Office of Child Support Enforcement, there have been more than 11,000,000 child support cases with arrears due for each of the past five consecutive fiscal years.  Each of those cases represents a custodial parent forced to shoulder the support of a child – or children – without sufficient financial help from the other parent.  Part of the problem is that many a non-custodial parent may view support payments as excessive, or as going to an ex, rather than to the children, and a father may rationalize that the mother will squander the money on herself.  Other reluctant payers don’t think through the math – does any sane person really think that a child can be adequately supported on $51.73 per week, or that even a dishonest mother could somehow live in luxury on that amount?  I can certainly understand the impatience of a family court judge who, tired of the same old excuses, tosses a non-payer in jail without further ado.

Ultimately, I do not think that Turner v. Rogers will change family court civil contempt proceedings all that much.  The non-payers will not have court-appointed lawyers, but they will be specifically asked whether they can pay.  After hearing the usual excuses, and perhaps requiring some sort of proof, the judge will doubtless often still find that the defendant can pay and is in contempt for not doing so.   The forms will be filled out completely.  The deadbeats will go to jail, and then many of them will find, beg or borrow the money to pay, and they will be released from incarceration, only – in many cases – to repeat the cycle.

If only the Supreme Court – or anybody – could change the cycle.  That would really be something.

Print Friendly

You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

AddThis Social Bookmark Button

10 Responses to “Child Support, Contempt of Court, and (Maybe) Lawyers”

  1. David Papke Says:

    The “cycle” is usually grounded in poverty. American poor often lack financial sophistication, cultural capital, and the bourgeois commitment to child-rearing within the nuclear family. However, American poor are not necessarily penniless.

  2. I think the whole idea of child support is a farce. The government doesn’t tell us how much of our income we must spend while we are in a relationship or marriage, so why do they when we are out of one? Most people will contribute to the child welfare and material needs regardless. The government is just encouraging conflict and alienating one parent by meddling in a person’s private life and providing one party a degree of corruptive power over the other.

  3. I wish enforcement would be stepped up in my case. I read all about the penalties of not paying child support yet my 2 children’s father has received nothing but a slap on the wrist. He works for cash “under the table” and doesn’t do his taxes. He lied to the judge, stating he didn’t have a job when under oath at a show cause hearing, and when I corrected his statement, let the judge know that he was working. The judge asked if it was true, and he admitted it was, but there was no penalty. He has been to 7 show cause hearings. The first 5 he was required to pay 10 percent of what was owed and took 1 year to pay it each time, with no consequences. And the last hearings he was required to pay 5 percent. He doesn’t pay any child support unless forced by a show cause order, and when I do ask him for help because I need help providing school clothes or other needs, I get a degrading comment. Yet nothing comes of his repeated contempt of court. He is only required to pay $190 a month on 2 children. That isn’t a quarter of what it costs to support my children. Yet I carry the burden on my own. There needs to be something done with these dead beat fathers.

  4. Elizabeth Crosson Says:

    I have been trying to receive my COURT ORDERED CHILD SUPPORT, and have been forced to give up. The Judge has demanded that my Ex husband pay, but he refuses. His employer is also supposedly required by law to deduct it from his paycheck, but has not. I have gone to court several times for this reason, hired a lawyer and wasted $2400.00 that i barrowed from my family, only to receive nothing. I have filed the Income Deduction Order several times, and still receive nothing. After the third time, the Judge finally suspended his Drivers License, but I still have not received any support. I resent laying out money that should be used to raise my son, for nothing. I wish the Judge would just admit he will do nothing to help me. My son is frustrated as well. I am owed over $10,000.00 and refuse to pay the IRS their fee to supposedly collect this money for me. NOT PAYING CHILD SUPPORT IS OBVIOUSLY PERFECTLY LEGAL. Quite frankly, the Court does not care at all about enforcing their own orders. Luckily I believe in Karma, as this is a hopeless situation. Thank you American Justice System, for allowing me to continue to be abused by my childs father, and for showing my 16 year old son that America is an embarressment.

  5. In this day and time, men find out they are not the father so many times after the fact. I think that all unmarried men should be given an automatic perternity test when there is court-ordered child support.

  6. To Linda, I do not know of a case of an unmarried couple where the father and/or state did not demand a paternity; therefore, they do determine parentage. And John, the whole concept of child support a farce? Really? Too bad we have had to make laws to force fathers and mothers, too, to support their own children. It is sad how many do not. When this happens, all of us pay. Too many single mothers are on welfare, which is in the billions and if the fathers would step up and support their children, we would not have to. CSE needs to enforce stricter laws on the non-custodial parents. It is absolutely ridiculous. The noncustodial parents know nothing is really going to be done about it which is why so many get away with it. Until they start making fathers support their children, well, we are supporting not only our children but theirs as well.

  7. Tim Shepard Says:

    I love the reasoning in this article. Incarcerating someone for being unable to pay his debts is a throwback… But somehow people magically come up with the money. So I guess if we started incarcerating people for other civil debt, such as credit cards, we would find they would magically pay their debts also. Did it ever occur to you that some kind soul is sacrificing to save a poor indigent from debtors prison?

  8. Tim Shepard Says:

    The simple fact is that child support is extortion, plain and simple. Designed to destroy the father’s influence on the family. Until child support is repealed as a punishment for men who mistakenly thought they were allowed to be parents in our perverted feminist society, there can be no system of justice, just a sham.

  9. Bura Marshall Says:

    I would like to say that the maintainance and overall wellbeing of children is the responsibility of both the parents and the society in which they live. I say this because the children are the future of that nation and not just their parents. “Individuals die, but the people live on” and the only way they can is through the development of the children of that community, state, or nation.
    With that being said I know for a fact that every non-custodial parent who is not paying is not a dead beat. As a matter of fact this should only be determined in the event that the community, state, or nation in which the parent lives ensure that all who want to work have a job. If that parent then refuses to work, we can at that time know that they are not trying to accept responsibility for their child(ren). But if we are saying to them you are on your own and they cannot find work, we are in effect saying the maintainance of our children can only be achieved if we blame the non-custodial parent for their lack of income. We must for the overall benefit of our children develop a job placement program that will provide jobs to all those parents who say they want to take care of their children but cannot find work. This must be done before any enforcement actions are taken. I know because I am one of those parents who has fallen behind due to losing my job. I have been looking for a job and have not been able to find one and on three occassions I was offered a job but could not start because they all required a valid drivers license, which I do not have because of one of the enforcment actions taken against me (driver license suspension). I’m not one of those parents who sat around doing nothing. While looking for work I went back to school and earned a B.S. degree in Finance and Economics, graduating in the top 1% of my class earning the distinction of summa cum laude. All I need now is to get my foot in the door somewhere and start being a better provider than I was before I lost my job. I say the problem is with both the parents who do not want to accept responsibility and with society as a whole who also do not want to accept responsibility for our families and our children.

  10. armetta mcglothen Says:

    I hear all these horror stories about how bad it is for non-custodial parents and how they shouldn’t have to pay child support. Well, I am raising a son, and I also have raised 2 adult daughters on my own. It takes money, love, discipline and a place to raise them in, called a home. There are 2 consequences from having unprotected sex–catching a disease and pregnancy. It takes two people to bring a baby into this world, so it takes two people to raise the child, and if one parent has to go to the system to request financial help, so be it, it is what it is.

Leave a Reply