Many people that owe back-spousal and child support have no idea of the extent of methods that may be employed to enforce payment of spousal and child support arrearages. The enforcement mechanisms available to enforce spousal and child support obligations even include incarceration. While the notion of being thrown in jail after showing up at a civil contempt hearing regarding enforcement of a spousal and child support order without an attorney may seem far-fetched it happens far more often than you might think. Though some who owe spousal and child support presume that you have a right to be represented by an attorney if you are at risk of being sent to jail, this is simply not the case in spousal and child support civil contempt proceedings as the recent decision Turner vs. Rogers from the highest court in the land makes clear.
The U.S. Supreme Court ruled in a recent 5-4 decision that Mr. Turner, who owed unpaid child support, was deprived of his 14th Amendment right to due process. However, the court also found no automatic right to counsel, meaning that lawyers are not required for indigent civil defendants facing a jail sentence like Mr. Turner.
According to Justice Stephen G. Breyer, who drafted the majority opinion, the states must still possess procedural safeguards in place when it comes to determining whether or not a parent can comply with the support order. Unlike criminal cases, the 14th Amendment’s due process clause allows states to provide fewer procedural protections to civil contempt defendants even when facing incarceration. Often, parties in child support cases are not represented by legal counsel. Breyer said that providing a lawyer to only the non-custodial parent “could create an asymmetry of representation,” which might unfairly alter the proceeding in favor of the party who owes unpaid child support. His opinion also noted that alternate procedural safeguards could help reduce the risk of wrongful incarceration. They include the use of a form to elicit financial information, an opportunity for the defendant to answer questions about his or her financial status, and a finding by the court on ability to pay.
In the case of Turner, the Appellant was first sentenced to a year in jail without the judge finding out about his ability to pay the support. At Mr. Turner’s appeal, he also argued he had the right to counsel at his contempt hearing. The U.S. Supreme Court in the Turner case ultimately held that the Appellant did not receive due process because of the trial court’s failure to provide procedural safeguards by first determining his ability to pay. However, the Supreme Court also indicated that there was no requirement that Mr. Turner be provided with an attorney appointed to represent him despite the threat to his liberty. The Supreme Court’s opinion did not address situations where child support is owed to the state (i.e. welfare reimbursement), or more complex cases that may require legal representation to comply with the due process requirements.
The bottom line is that if you are facing civil contempt proceeding for unpaid spousal or child support you do not have a right to a court appointed attorney. It is important that you obtain legal representation from an experienced West Palm Beach spousal and child support attorney to assist you during your contempt or enforcement proceedings. No matter where you are located, West Palm Beach family law attorney James S. Cunha and his legal team are just a phone call away.