{"id":13790,"date":"2011-06-22T16:37:18","date_gmt":"2011-06-22T21:37:18","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13790"},"modified":"2019-02-14T17:04:33","modified_gmt":"2019-02-14T23:04:33","slug":"child-support-and-contempt-of-court-and-maybe-lawyers","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/06\/child-support-and-contempt-of-court-and-maybe-lawyers\/","title":{"rendered":"Child Support, Contempt of Court, and (Maybe) Lawyers"},"content":{"rendered":"

\"\"This week, the US Supreme Court handed down a decision in Turner v. Rogers<\/em>, a case involving a non-custodial parent who was jailed for nonpayment of child support.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.\u00a0 At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.\u00a0 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.\u00a0 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.<\/p>\n

Here, the Court held that \u201cwhere 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).\u201d\u00a0 However, the Court added the caveat that \u201cthe 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.\u201d\u00a0 Since Turner did not receive clear notice that his ability to pay \u2013 or not \u2013 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.\u00a0 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.<\/p>\n

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.\u00a0 Here, I would like to offer just a few observations from a family law perspective.<\/p>\n

Turner\u2019s situation is sadly familiar.\u00a0 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.\u00a0 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<\/em> for failure to pay.\u00a0 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.\u00a0 The fifth time, he actually served an entire six-month term in jail.\u00a0 He remained in arrears, was ordered to \u201cshow cause,\u201d 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.<\/p>\n

What is a judge to do with such a guy?\u00a0 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\u2019 prisons of Charles Dickens\u2019 England.\u00a0 On the other hand, notice that Turner \u2013 like countless others in his situation \u2013 magically came up with the money owed for support<\/em> the first four times he was sentenced to jail time.\u00a0 This phenomenon is commonplace.\u00a0 Not every person who is in arrears is dishonest, but the truth of each situation is not easy to ascertain.\u00a0 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\u2019s needs.\u00a0 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 \u201coff the books\u201d for cash, or working in illegal occupations.\u00a0 This is a huge social problem in this country.<\/p>\n

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.\u00a0 Each of those cases represents a custodial parent forced to shoulder the support of a child \u2013 or children \u2013 without sufficient financial help from the other parent.\u00a0 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.\u00a0 Other reluctant payers don\u2019t think through the math \u2013 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?\u00a0 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.<\/p>\n

Ultimately, I do not think that Turner v. Rogers<\/em> will change family court civil contempt proceedings all that much.\u00a0 The non-payers will not have court-appointed lawyers, but they will be specifically asked whether they can pay.\u00a0 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.\u00a0\u00a0 The forms will be filled out completely.\u00a0 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 \u2013 in many cases \u2013 to repeat the cycle.<\/p>\n

If only the Supreme Court \u2013 or anybody \u2013 could change the cycle.\u00a0 That would really be something.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 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.\u00a0 A finding 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