DOES A DEFENDANT WITHOUT THE MEANS TO HIRE A LAWYER HAVE A CONSTITUTIONAL RIGHT TO STATE APPOINTED COUNSEL AT A CIVIL CONTEMPT PROCEEDING THAT MAY RESULT IN HIS INCARCERATION.

By Alex Kornfeld, Esq.

When a person is behind in child support payments that person can be held in civil contempt and jailed until the child support is paid. Due to the United States Supreme Court decisions in Turner v. Rogers, 564 U.S. ____ (2011) this may all change.

In Turner v. Rogers, the South Carolina family court ordered Turner to pay $51.73 a week to Rogers to help support their child. Turner failed to pay child support several times and was held in contempt five separate times. After being held in contempt the 5th time, Turner was brought back to Court for failing to provide child support. The Judge found him in willful contempt and sentenced him to a year in jail. The Judge did not make a finding as to whether Turner had the ability to pay. The lack of the Judge’s consideration as to whether Turner could pay was at the very heart of the Court’s decision.

On the other hand, the Supreme Court held that even those without financial means to afford a lawyer do not have the right to State appointed counsel in a contempt action where there is a possibility of being jailed when the opposing party is unrepresented.

The Supreme Court looked closely at one’s ability to pay and suggested family courts consider four factors:
(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 from him;
(3) an opportunity at the hearing from him to respond to statements and questions about his financial status; and
(4) an express finding by the court that the defendant has the ABILITY TO PAY.
In the present case, the family court did not address the issue of whether the defendant had the ability to pay the past due child support. According to the Supreme Court, “When the parent is unable to make the required payments, he is not in contempt. (Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E. 2d 624, 626 (1983). The Court cited an article written by the Urban Institute that stated 70% of child support payments due nationwide are owed by parents with no reported income or income of $10,000 a year or less.

Therefore, a Judge who holds one in violation for failure to pay child support must not only find that one has failed to pay but also that one has the ability to pay.

This distinction may force Judge’s to hear more testimony from a defendant without the financial means for an attorney about his ability to pay child support and changes the issue from whether one has failed to pay to whether one has the ability to pay and has chosen not to.

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