Tuesday, October 11, 2011
A Defendant Facing Jail Time for Failure to Pay Child Support has No Right to Counsel, Supreme Court Says
In June of 2011, the Supreme Court issued a 5-4 opinion that changed the rules of contempt proceedings for failing to pay child support. In Turner v. Rogers, the court decided that the Due Process Clause of the 14th Amendment does not require states to provide a lawyer to defendants facing incarceration for failure to pay child support. In the Turner case, the court found that Mr. Turner, a South Carolina man behind in his child support payments, was not entitled to a lawyer; however, the court did find that his incarceration violated the Due Process Clause.
The Court cites three main considerations as to why provision of a lawyer is not required in child support proceedings. First, the determination of whether a defendant is able to pay the child support can be answered prior to providing a defendant with counsel. The court also considers that the person opposing the defendant is often not the government, but rather the other parent who is also unrepresented by counsel. Providing a lawyer to one parent but not the other parent has the potential to make the child support proceedings less fair. Lastly, there are adequate safeguards available to protect the defendant’s interests. Thorough financial assessment procedures, financial documentation forms, and notice to the defendant sufficiently protect him or her in answering the critical question of whether the defendant is able to pay.
In the Turner case, the court found that Due Process had been violated because, even though the state was not obligated to provide the defendant with a lawyer, the lower court did not provide any of the above-mentioned safeguards to make sure that the trial court had sufficiently examined the defendant’s ability to pay.
The Court’s decision essentially affirms the continued right of judges to throw a party in jail for failure to comply with an order to pay child support. At the same time, the Court is mandating that sufficient safeguards and practices be in place in order to comport with Due Process.
It is important to note the Supreme Court’s decision does have limitations. The court’s ruling may not apply to situations in which child support payment is owed to the state, where the government is likely to be represented by counsel. It also may not apply in an ‘unusually complex case’ where a defendant can only be competently represented if he has access to a lawyer.
Whether you are seeking an order of child support, or have found yourself in the position of being behind in child support payments, it is critically important to have competent representation. To determine if and how Turner may affect you, feel free to call us or send us an email, and as always, keep checking the blog for updates on pertinent legal news!