Right to Counsel in Jeopardy in Child Support Cases

On June 20, 2011, the Supreme Court of the United States held that the 14th Amendment’s Due Process Clause does not automatically require the State to provide counsel to an indigent defendant-parent who is subject to a child support order at a civil contempt proceeding, even if that individual faces incarceration. In particular, the Court clarified that the Due Process Clause does not require the provision of counsel where the opposing parent or other custodian is not represented by counsel and the State provides alternate procedural safeguards. The impact of this decision is not yet known, but may result in many individuals going to prison after a legal proceeding in which they were not given the opportunity to confer with a lawyer.

The case originated in 2003 when a South Carolina Family Court ordered Michael Turner to pay $51.73 per week for child support. For three years, Turner repeatedly failed to pay the amount due and was held in contempt on five occasions. The first four times he was sentenced to 90 days’ imprisonment, but he ultimately paid the amount due without being jailed. The fifth time he did not pay but completed a 6-month sentence. After his release, Turner continued to not make his child support payments. In 2008, at a civil contempt hearing where Turner was to show his inability to pay, neither he nor the child’s custodial parent were represented by counsel. Turner explained that his drug problem and an injury prevented him from working when the judge asked for an explanation why he was $5,728.76 behind in his payments. The judge did not ask any follow-up questions and made no express findings concerning his ability to pay. However, the judge found him in willful contempt and sentenced him to 12-months in prison. While serving his sentence, Turner appealed; however, the South Carolina Supreme Court rejected his claim that the Constitution entitled him counsel at his contempt hearing.

The Supreme Court of the United States granted certiorari in light of the differing opinions among state and federal courts on the issue. The Court also noted the importance of the issue because 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less so the issue of ability to pay arises fairly often. In its decision, the Court reasoned that a requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would alter significantly the nature of the proceeding. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, more importantly, could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. Fifty-one percent of nationwide arrears and fifty-eight percent in South Carolina are not owed to the government; therefore, typically the opposing custodial parent may be relatively poor, unemployed, and unable to afford counsel. The Court concluded these considerations argued strongly against the Due Process Clause requiring the State to provide indigents with counsel in these proceedings.

Even though Turner did not have a “right to counsel,” the Court urged that substitute procedural safeguards are necessary to reduce the risk of an erroneous deprivation of liberty and to assure accurate decision-making in respect to the key “ability to pay” question. The Court recommended that States utilize the following safeguards: (1) notice to the defendant that his ability to pay is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and (4) an express finding by the court that he defendant has the ability to pay.

Following the opinion, the Court vacated the judgment of the South Carolina Supreme Court and remanded the case for further proceedings because Turner received neither counsel nor the benefit of alternative procedures like those described; thus, his incarceration violated the Due Process Clause.

If you or a loved one is faced with a child support issue, or any Family Law matter, please contact an attorney at Miller|Conway to assist you. We are a Goose Creek law firm serving the Charleston and Greater South Carolina Area. We are here for you when you need us.

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