Failure to Pay Child Support Does Not Warrant State-Appointed Counsel

In a recent 2011 decision, Turner v. Rogers,  the United States Supreme Court held that a person held in contempt of court for failure to pay child support is not entitled to state-appointment of counsel, even if the punishment involves imprisonment of a year or more.

The case began when Michael Turner failed to pay child support of $51.73 per week pursuant to a court order in South Carolina. During a three year span, the court held him in contempt four times, each time sentencing him to imprisonment for 90 days. Turner managed to pay off what he owed each time. When he was held in contempt a fifth time, he was sentenced to incarceration for 6 months. He served the sentence, but did not pay off the child support arrears.

When he was released, the court called Turner back in and asked him why he hadn’t paid off his child support. Turner was not represented by an attorney. He explained that he got out and did drugs, injured his back, went on disability, and then straightened himself back out. Turner pleaded for another chance to pay off his child support.

The trial court didn’t give Turner another chance. Turner was sentenced to 12 months imprisonment.

With the assistance of pro bono counsel, Turner appealed. The theory was that Turner, an indigent party, should have been entitled to the appointment of counsel. In a criminal setting, the Supreme Court has long held that indigent defendants are entitled to state-appointed attorneys pursuant to the Sixth Amendment of the United States Constitution.

The United States Supreme Court agreed to hear the case. It did not, however, agree with Turner’s interpretation. The Supreme Court found that civil contempt proceedings are not governed by the Sixth Amendment.

The Court pointed out that the underlying issue in a child support contempt hearing is whether the defendant could pay, whereas, in a criminal case, the issue of whether or not the defendant can pay is determined prior to appointment of counsel.

The Court also pointed out that the plaintiff in a child support case is generally another unrepresented party, while in a criminal case, it’s always an attorney appearing on behalf of the state. Appointing counsel to the defendant, would create an imbalance, when most plaintiffs in child support cases don’t have counsel.

Finally, the Court indicated that child support proceedings generally are embedded with procedural safeguards that inherently protect defendants and otherwise comply with due process.

Nonetheless, the Court found that there were inherent problems in this particular case. The trial court did not include many of the procedural safeguards that should have protected Turner. For example, there was no finding as to whether or not Turner actually was capable of paying the child support arrears. For that reason the Supreme Court said that there was a due process violation and therefore reversed and remanded the case.

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