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Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings – News – ABA Journal

July 23, 2011

Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings – News – ABA Journal.

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U.S. SUPREME COURT

Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings

Posted Jun 20, 2011 9:45 AM CDT
By Debra Cassens Weiss

The U.S. Supreme Court has found no automatic right to counsel for indigent civil defendants facing jail time, though it ruled on behalf of a father who served a year in prison for failing to pay child support.

The father, Michael Turner, was deprived of his 14th Amendment right to due process, the Supreme Court ruled in a 5-4 decision.

Free lawyers aren’t required in such situations, but states must have procedural safeguards in place to help determine whether the parent is able to comply with the support order, according to the majority opinion (PDF) by Justice Stephen G. Breyer.

Turner had told the trial judge who sentenced him to prison that he was unable to pay because “dope had a hold to me” until he broke his back and was laid up for two months. “And, now I’m off the dope and everything,” he told the court. “I just hope that you give me a chance.”

The judge sentenced Turner to a year in jail without making an express finding about his ability to pay. Turner’s appeal, brought with the help of a pro bono lawyer, argued he had the right to counsel at his contempt hearing.

Breyer’s opinion found that Turner did not get due process in his case, but said a lawyer was not an automatic requirement.

The 14th Amendment’s due process clause allows a state to provide fewer procedural protections to civil contempt defendants than in a criminal case, which is governed by the Sixth Amendment, Breyer said. He noted that both parties in a child support case are often unrepresented by lawyers, and providing a lawyer to just the noncustodial parent “could create an asymmetry of representation” altering significantly the nature of the proceeding.

He also noted the argument of the Solicitor General that alternate procedural safeguards can help reduce the risk of wrongful incarceration. They include: notice that ability to pay is a critical issue, the use of a form to elicit financial information, an opportunity for the defendant to answer questions about his financial status, and an express finding by the court on ability to pay.

Breyer said his opinion does not address a situation where child support is owed to the state, possibly as reimbursement of welfare payments to the parent with custody. Nor does the opinion address the due-process requirement for counsel in a particularly complex case.

Four dissenting justices agreed there is no right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. They would not have reached the issue of the need for alternative procedural safeguards.

The ABA had argued in an amicus brief that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. The case is Turner v. Rogers.

Comments

1.

Peter C. Lomtevas
Jun 20, 2011 3:09 PM CDT

Child support is the most idiotic scheme ever foisted on a society. So here comes a Supreme Court decision about a $5,000 debt? Ridiculous.

2.

John M
Jun 20, 2011 5:24 PM CDT

Granted, this guy isn’t the most sympathetic of defendants (who is?), but anytime you deprive somebody of their freedom they should be entitled to counsel.  As to the argument the Supreme Court made about the other side not necessarily having counsel I would say this:  whether or not a contempt action is successful, the complaining side will be walking out a free man (or woman).  That is not the case with the person responding to contempt.  Moreover, a not guilty verdict on a contempt charge in regards to child support does not render that money noncollectable or “off the books”.  Still, glad to see that SCOTUS recognized even without a right to counsel SC’ violated this man’s 14th Amendment rights.

3.

Richard Zorza
Jun 20, 2011 5:28 PM CDT

Please note that there is now an online Symposium taking place on the implications of this case on

http://www.concurringopinions.com/archives/category/symposium-turner-v-rogers

It is being moderated by myself and David Udell of the Cardozo Law School National Center for Access to Justice.

Among those anticipated to participate are:

Laura Abel (Brennan Center for Justice)
Jon Asher (Colorado Legal Services)
Jim Baillie (Fredrikson & Byron)
Jeanne Charn (Harvard Law School)
Bob Echols (ABA Resource Center for Access to Justice)
Peter Edelman (DC Access to Justice Commission, Georgetown Law School)
Russell Engler (New England School of Law)
Debra Gardner (Public Justice Center)
Cynthia Gray (American Judicature Society)
Bruce Green (Fordham Law School)
Marty Guggenheim (NYU Law School)
Alan Houseman (Center for Law and Social Policy)
Jack Londen (Morrison and Foerster)
Michael Millemann (University of Maryland Law School)
Tina Rasnow (Founder, retired, Ventura County Superior Court Self-Help Legal Access Center)
Norman Reimer (National Association of Criminal Defense Lawyers)
Mary Schmid Mergler (Constitution Project)
Vicki Turetsky (Office of Child Support, HHS)
Betty Torres (Texas Access to Justice Foundation)
David Udell (National Center for Access to Justice)
Jo-Ann Wallace (National Legal Aid and Defender Association)
Richard Zorza (Access to Justice Blog)

It should be comprehensive and reflective.

4.

Peter C. Lomtevas
Jun 21, 2011 7:31 AM CDT

No one ever invited me to any symposium on the idiocy that is child support.

5.

Jim
Jun 21, 2011 11:06 AM CDT

Who says there is no debtor’s prison, but as usual it’s the little guy that takes it in the shorts, Is this the best use for our Supreme Court? Wall Street, Bankers the Administration and Congress should be brought in front of this trial judge and maybe they would pay their bills.

6.

CALVIN jACKSON
Jun 21, 2011 12:34 PM CDT

This is Jim Crow lifting his head again in the U.S. court system. Black Men beware again that living below the poverty level can land you in jail in America again. The cook county court system has replaced the war on drugs grant money with child support debt grant hustle. The sheriff are now debt collectors (slave catchers) of the poor.

7.

Be a plumber
Jun 21, 2011 4:14 PM CDT

Comment removed by moderator.

8.

Papa Bear
Jun 21, 2011 4:38 PM CDT

The problem with this whole issue is that SCOTUS is treating this as a civil collections issue no different than a debt and not the statutory obligation SCOTUS and virtually all states consider it to be. By treating it as a purely contractual debt with no right to representation at this level, then the rest of the obligation will soon become nothing more than a contractual debt. That would be fine with me because that would be so much easier with which to have to deal.

9.

Lilly Collette
Jun 21, 2011 4:56 PM CDT

Well, it does appear that SCOTUS understood that S.C. was ‘blowing smoke ….’ (LMAO).
I have this one posted on Facebook.

10.

Nettie F. Sabin
Jun 21, 2011 5:38 PM CDT

As a family law attorney I think the Supreme Court’s ruling was wrong-headed.  I am not too concerned about Cook County, IL. as attorney’s for contempt proceedings have always been provided to the indigent in my experience.

I am concerned with Mr. Lomtevas’s “opinion” of child support.  I suspect he had to pay it and his anger is palpable.  Mr. Lomtevas, do you have a better idea of how to support children after divorce or if the parties were never married?  Do you seriously believe that the non-cutodial parents would do the right thing without a law and a way to enforce it?  I’ve been in this field for 30 years.  There are many who do the right thing and more, but just as many who don’t even if it has nothing to do with poverty.  It’s all about them and not at all about the children.  You can call me cynical, but I see the reality and consequences of the failure to support children everyday.  Grow up and quit your complaining.

11.

Herb Spencer
Jun 21, 2011 6:17 PM CDT

How “comprehensive and reflective” can a “symposium” stacked with permissive leftists possibly be?  Sounds like it was more self-congratulatory than anything else.  So what else is new in the bowers of legal academia?

Not all of us swallowed the Warren Ct.‘s soured Kool-Ade.  Gideon was wrongly decided ab initio, and, like Miranda, Shapiro v. Thompson, and a host of other poorly-reasoned judicial diktats from that era, represents judicial activism at its worst.  But don’t take my word for it:  Se quaere effectum malum, circumspice.  The Birchers were right after all:  Earl Warren SHOULD have been impeached.

12.

Kathy Vossler
Jun 22, 2011 9:10 AM CDT

An interesting twist that the court appears not to have considered is this:

* A criminal contemnor is entitled to more protections than a civil contemnor, including the right to counsel, under the 6th Amendment.

* The difference between criminal contempt and civil contempt is the ‘ability to pay’

* To determine whether a child support obligor has the ability to pay, the court will give him or her a form to fill out, in which he or she will give very detailed information on employment, income and assets.  The court uses that form, and conducts a hearing to determine whether the contemnor is indigent.  If he or she is indigent, they may be appointed counsel.  If not, they continue pro-se.

* After the indigency hearing, and with the defendant’s sworn statement on employment, income and assets, the court conducts the contempt hearing.  The defenses to contempt are that the contemnor did not have the ability to pay:  had no income, no ability to borrow, no assets to sell, etc.  In other words, the criteria for the right to appointed counsel are the same as the potential defenses to the actual contempt.

* By the time the contemnor gets past the indigency hearing and into the contempt hearing, he or she has already testified against himself or herself, without the opportunity to assert his or her 5th Amendment Right against self-incrimination.  Essentially, any testimony the defendant could have used in his or her defense has already been heard, from the Defendant’s own mouth.

13.

DeadHead
Jun 24, 2011 6:49 AM CDT

I am with Nettie on the whole whining thing. Getting the children out of the spiral is societies only chance (and it is a slim one as it is). If not child support, what?

14.

anon
Jun 24, 2011 7:38 AM CDT

Interesting – the DE Supreme Court came to the opposite conclusion in Black v. Black – that an obligor facing incarceration DOES have the right to an attorney. Many custodial parents are represented in court by a DAG – who represents the Child Support Enforcement Agency and appears on their behalf – so there’s rarely a case where obligor would have an attorney and custodial parent does not – an obligor who faces a custodial parent with a private attorney usually has his/her own private attorney.

15.

Mike C
Jun 24, 2011 8:30 AM CDT

Two things.  One, contrary to one poster’s comment, child support is not idiocy.  I, for one, was not brought into this world to support anyone.  But, when you bring another life into this world, you are responsible for providing for that life until he or she can provide for his or her own life.  We cannot have people shirking responsibility onto society.  Consequences should exist.
Two, I echo the statement against SCOTUS’s justification for no legal requirement for representation at a civil contempt proceeding.  If the state, ie society, is going to incarcerate someone for any reason, that person deserves representation to ensure the someone’s rights are properly represented.  A proceeding for child support is different than a proceeding to enforce child support at the end of a gun.  The Founding Fathers would agree.

16.

Will
Jun 24, 2011 8:35 AM CDT

Because I have not read the entire opinion, I will reserve comment on its reasoning.  However, in Missouri we follow the long-held rule that in civil contempt proceedings, the issue of incarceration (vs a fine or some other form of punishment) is controlled by the belief that the contemnor holds the keys to his or her own freedom.  Meaning, that one’s ability to pay is always considered, testimony and evidence introduced, and most of the judges (at least in the 21st and 22nd Circuit) base their decision on the same.  I have also NEVER known of a mom to bring a civil contempt action pro se.  For what it’s worth, from the facts presented in the argument, I can see why the dad would be locked up because he intentionally put himself in the position so as not to be able to pay when he made the decision to take drugs.  My heart goes out to him based on what appeared to be a sincere plea for another chance—which the judge could have given him by staying execution of the judgment of incarceration provided that the dad began paying his child support at a level determined from financial information presented at trial.  Yet, I’d also want to know his relationship with the child(ren) in question because in my experience, it is much easier to aggressively defend the dad whose behind in support when he is an active force and positive presence in his kid’s life.  Oh how I wish that were not so rare.

17.

South Texas Lawyer
Jun 24, 2011 8:44 AM CDT

I have been on both sides of this issue, representing custodial and non-custodial parents.  It has always been a mystery to me that there was NO money or assets available to satisfy the obligation until after the jail door had slammed shut.  And then miraculously, after just a few hours, suddenly there was some money found for the children.
If you play then you have to pay.  If you do not want to support your children then take the steps necessary not to have them.

18.

IndyCindy
Jun 24, 2011 9:24 AM CDT

Not a lawyer but work in legal industry and have 1st hand knowledge of child support.  Thank you Nettie F. Sabin and obviously Mr. Lomtevas has never lived the reality of others who indeed pay or receive child support.
For 8 years, my husband and I made sure (even when 1 of us was downsized) child support was paid for his 2 children AND he was very actively involved in their lives.  He had children with his ex-wife; he is responsible for taking care of them financially and emotionally, period.  This is the real issue here.  In the 1 ½ years we have had physical custody, not one dime has been paid by mother and she has all but disappeared from their lives.  So I have no sympathy for Mr. Turner or anyone who produces a child and is not absolute in their physical and financial responsibility to care for the child.  Why should I, the tax payer pay for raising that child?  Bottom line, you create children; you must take care of them or face the consequences-period.
If you make the choice to have children, you make the choice whether or not to care for them therefore, don’t complain about the repercussions.

19.

Honza Prchal
Jun 24, 2011 9:43 AM CDT

Child support seems to me to be the return to power of social norms that were destroyed in the 1960s-1980s with single party no fault divorce, the end of maintenance presumptions and all that. It is no harsher than those, and is as wrong as often as those, but on balance it seems to deter the Hugh Heffner without the “class” aspects of so much of our society. Certainly, it makes the consequences of consequenceless behavior more plain to those who used to skate away with the least damage.
DeadHead seems to me to have grasped the Tao of the situation, if not child support, what? Victorian systems worked pretty well, but those are even more restrictive and less egalitarian than child support.

20.

Not Susie Homemaker
Jun 24, 2011 9:53 AM CDT

What of the custodial parent who won’t allow access to the child but demands support?  In violation of the divorce decree?

21.

James Pollock
Jun 24, 2011 11:38 AM CDT

Why the assumption exhibited by many commenters above that the deadbeat, non-support-paying parent is the father?

22.

Wage Warrior
Jun 24, 2011 11:45 AM CDT

@ 20. Child support and child visitation are separate matters in the court of law. If the noncustodial parent is not enjoying visitation per Court Order with no just cause, [he] should bring a contempt proceeding against the opposing parent. However, he is still required to pay child support regardless of whether or not he is denied access. The children are not pawns in the divorce game and two wrongs between the parties does not make a right. You should look up “parental kidnapping” and “Deadbeat Dads” laws in your jurisdiction. Regardless, you should request the court to appoint an attorney for the children who require both the child support and meaningful contact with both parents.
@ 1. I can see that you are bitter and that saying the words “child support” leaves a stringent taste in your mouth. Buck up and pay your child support if this applies to your situation. It might cut down on your luxury vacations, spiffy rides, and designer clothes but you cannot take those things to jail with you. If the court determines that you have the ability to pay but you do not pay, you could face criminal charges simultaneously with a civil contempt—and the publicity is quite contrary to a shiny public reputation. It is not “one or the other” but can be both. If you don’t want to pay for your kids, then don’t contribute to the population. Buck up. There is no downward departure from the guidelines for feeling sorry for yourself.
@ Others. Keep up with the times. The Victorian era is gone and women can even have their own bank accounts and own property without their husband’s permission. VAWA ensures that the ‘rule of thumb’ rule is also abolished, too.
@3. I look forward to reviewing the information on your symposium. No matter which side of the road these readers find themselves, discussion is always the first step to understanding the law and opposing dissent.
Contempt for your ex is separate and apart from contempt for the court. By not paying child support, while you are hurting your ex—AND MOSTLY THE CHILDREN—you are directly telling the judge by your actions that ‘you don’t care what the court rules’ and that you believe you are ‘above the law.’ Judges don’t take kindly to being given ‘the finger’. If you believe that there has been a substantial change in circumstances that merit a downward adjustment of the court’s guidelines, step up to the plate and file a Motion to Modify. But if the Court finds that you’re lying on your financials, you might find yourself in jail anyway.
By the way, on the ‘collections’ issue: Get that support amount reduced to judgment. Most states allow 10% MANDATORY simple interest on the debt from the date of judgment. In just (7) short years, the custodial parent can nearly double the original judgment amount. Now, as far as an investment goes, well, do the math.

23.

Will
Jun 24, 2011 12:33 PM CDT

Well, since we’ve moved on from the original issue—is there a constitutional right to counsel for civil litigants, I’d like to offer something else legislatures need to fix and which explains the deeply divided sentiments expressed above.  Generally, a mom’s right to custody and visitation with her child is created at birth and recognized by every state.  Along with that is a presumption that the mom will support her child, but there are no court orders requiring her to do so.  With the dads, once paternity is established, an order of support follows.  What does not follow is a right to custody and visitation.  This must be separately petitioned for by the pops.  Therefore, with the mom—custody and visitation are legislatively presumed and a duty to support is not judicially mandated.  With the dad—custody and visitation are not legislatively presumed and a duty to support is judicially mandated.  What often results, then, is a dad who has to pay child support for a child that he cannot legally see, spend time with, or develop a relationship.  His access to the child is completely at the mom’s whim and wishes.  And if at any time the mom changes her mind while he does have the child, he can be prosecuted for parental kidnapping.  Certainly, he has the right to petition the court for custody and visitation and will even receive a credit towards the child support owed for the time he has the child(ren) with him.  Yet, the systemic contradictions at the time paternity is established remains and the legislatures should require issues of custody and visitation to be litigated along with paternity to ensure that fathers do not end up in the position of being in contempt for children they are prohibited from seeing (by the moms).  I have handled enough criminal non-support cases (which are similar on the facts) where the moms have refused visitation despite a court order and the dad’s wrongly responded by not suing for an abatement sooner.

24.

sdm
Jun 24, 2011 1:21 PM CDT

Having been involved in this area for years as an advocate for custodial and non-custodial parents, I am more convinced than ever that parents should be held responsible to support children they voluntarily fathered or mothered.  Typical scenario:  dad divorces wife (or impregnates girlfriend), leaves and gets a “new” family he has to support so quits supporting the old one.  Or mother meets some idiot online, cashes out family bank account and flies to meet him, leaving family in debt and leading to divorce.  She finds she would rather spend her money on the new parasite to get him out of his mother’s basement than support her kids.  All ignore support orders.  Contemptuous conduct?  I’ve met about three people (other than clients) who think it isn’t.  The rest of the nation thinks it is.  If the parents don’t support the kids, the 51% of us who are taxpaying citizens have the burden.  Most disturbingly,  the kids suffer the most.

25.

Wage Warrior
Jun 24, 2011 2:43 PM CDT

@23. The problem with your scenario is that fathers are instructed by unscrupulous attorneys to “kidnap” their children by not returning them to the mothers at the end of visitation despite the fact that they may have their children almost on a 50-50 time basis, in an attempt to get their child support lowered by ‘spending more time with the children than the mother.’ Enter the Department of Social Services Child Protective Services on false allegations of abuse by the mother. The children are removed from the mother and ‘given’ to a criminally-minded father who immediately files for a modification of child support based on substantial change in circumstances. The outstanding child support amount owed by father is reduced to judgment. Mother is now non-custodial parent ordered to pay the father child support. The mother’s support is offset against the father’s principle & interest, until the children reach age 18 and graduated from high school. Supervised visitation is ordered for the mother, who is falsely accused of child neglect/abuse. The children, caught in the middle alienate the non-custodial mother—that is, until they reach maturity and see the evil of the father. The son commits suicide at the father’s house where he lives and works until age 23 because he finds out that the landlord who declines his application for rent is the same landlord who evicted the mother and children because the father decides to not pay child support and kidnap the children—and now because of his father’s evil refuses to rent to the youth, who is attempting to move away from the father. The father has an attorney throughout all proceedings; the mother cannot afford one. In the end, one child is dead by his own hand because he learns of his father’s evil that began the ordeal to begin with and three adult daughters suffer emotional damage on all counts as they reunite with the mother who they abandoned while caught in the middle of the father’s scheme to never pay support and now see the father’s evil plan for what it was. Top that with the fact that the father is a convicted domestic violence felon in possession of guns and ammunition at the time of the son’s suicide and who currently remains in possession. Gun laws are statutory in a 5-year minimum to 20-year maximum on each count. The mother addresses the problem with law enforcement; meanwhile the holidays pass and the daughters (and now grandchildren) are in danger while visiting the father; the mother is forced to move out of state for her safety.
This is a true story. Never believe for one moment that child support and visitation MUST remain separate matters before the Court. Once the issues are muddied, tragedy follows.
This happened to me.

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