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.