Trends in Family Law: Contempt, child support arrears, and the right to counsel

November 30, 2011

Family Law Theme Month(Editor’s note: Because of the shifting terrain of family law on the national level, we’ll be looking at different trends in the field throughout the month of November)

For the first post on interstate same-sex adoption, click here.

For the second post on state constitutional “personhood” amendment, click here.

For the third post on child custody in same-sex separations, click here.

For the fourth post on E.R.G. v. E.H.G. and grandparent visitation, click here.

As many family law practitioners no doubt are used to informing their clients, the failure to pay court-ordered child support can result in a contempt proceeding ordering jail time for up to one year.

Despite the efforts of many poverty-related legal advocacy groups, there is no recognized right to counsel in these proceedings for indigent defendants, and a Supreme Court ruling from earlier this year doesn’t challenge the notion.

The case, Turner v. Rogers, involved a father, Michael Turner, who was jailed six times between 2003 and 2010 for accrued child support arrears (an occurrence not uncommon in child support arrears civil contempt cases).

During his most recent prison stint, Turner appealed his imprisonment, and the U.S. Supreme Court eventually agreed to hear his case.

Turner claimed that he had a right to counsel in his contempt hearings, and if you remember reading the second paragraph of this post, you’d know that the Supreme Court didn’t agree (at least in circumstances where the plaintiff was unrepresented).

Still, the case wasn’t a loss for him.

In a 5-4 opinion, the majority indeed rejected Turner’s argument that he was entitled to a right to counsel at his contempt hearing.

However, the Court gave him the next best thing in finding that his incarceration violated the Due Process Clause because of the absence of “substitute procedural safeguards.”

In Turner’s case, that meant the following four requirements:

  • notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
  • the use of a form (or the equivalent) to elicit relevant financial information from him;
  • an opportunity at the hearing for him to respond to statements and questions about his financial status; and
  • an express finding by the court that the defendant has the ability to pay.

Those elements, unfortunately, don’t seem to have much pertinence beyond Turner’s case and those in situations substantially similar to his.

Worse yet is that the Court didn’t give any insight as to what “substitute procedural safeguards” actually entails, vagueness that has become standard fare for SCOTUS opinions that find Anthony Kennedy as the tie-breaking vote.

Considering that the vast majority of states already provide public defenders for indigent contemnors in child support hearings, it would be easy to believe that the issue is generally moot.

With states across the country facing budget shortfalls, though, the ruling may empower some states to cut back such services.

Then again, the Court’s ruling is the closest it has come to acknowledging anything resembling a right to counsel in non-criminal law scenarios, even if the opinion only recognized “substitute procedural safeguards.”

Does this indicate a trend eventually leading to the recognition of such a right?

Not likely with the current Court composition, but that certainly won’t stop legal advocacy groups from continuing to try.

And in view of the massive – and increasing – amount of child support arrears cases across the country, it’s very probable that this issue will find itself before the nation’s high court again.

Until then, state and federal courts are left to the happy task of figuring out how to interpret the ambiguity of the Turner decision for themselves.