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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

The United States Supreme Court ruled Monday that indigent child support obligors are not necessarily entitled to an attorney when faced with contempt proceedings threatening incarceration. In the case of Turner vs. Rogers, the Court found that the defendant's Due Process rights were violated by South Carolina's contempt proceedings, but his rights could have been met in ways other than the provision of a state-paid attorney. As those who've read my previous posts on this case know, Turner is the South Carolina man who spent a year in jail for civil contempt for his failure to pay child support.  He claimed that he was indigent and unable to pay, but the judge jailed him anyway without making a finding of whether Turner could have paid his debt or not. The Supreme Court ruled in a 5 - 4 decision that Turner's rights under the Due Process clause of the 14th Amendment were violated because he was neither provided an attorney by the state nor did he receive "alternative procedural safeguards."
These include (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 for 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.
Those procedural "safeguards" will be sufficient for due process purposes in cases in which the other party is the custodial parent who is not represented by counsel.  In many, perhaps most, cases in which indigency of the obligor is an issue, it is the state that seeks reimbursement for payments made to the custodial parent through Temporary Assistance to Needy Families (TANF).  The Court's decision doesn't reach those cases. So it is key to Justice Breyer's opinion that it applies only when the custodial parent is the opposing party and she/he is not represented by counsel.
[S]ometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. A requirement that the State provide counsel to the non-custodial parent in these cases could create an asymmetry of representation that would "alter significantly the nature of the proceeding,'... creating a degree of formality or delay that would unduly slow payment to those immediately in need and make the proceedings less fair overall.
Hmm.  Where to begin?  Perhaps with the observation that the justices apparently have no concept of the realities of poverty or the child support process. In the first place, Justice Breyer (joined by Kennedy, Ginsburg, Kagan and Sotomayor) is concerned about creating asymmetry between the custodial and non-custodial parents.  I suppose it's too bad that no one told him about the pro-custodial-parent asymmetry that already exists.  Countless fathers and their attorneys could educate the court on that, but I guess none of them did. The idea that custodial mothers and non-custodial fathers walk into a hearing on child support arrearages as equals is far fetched at best.  Whether she has an attorney by her side or not, the custodial mother has the full weight of the state's child support bureaucracy on her side.  That includes the fact that the state receives partial reimbursement from the federal government for every dollar of child support it collects.  It is therefore in the interests of the state to set child support as high as possible, which in turn militates against finding fathers indigent and unable to pay. Second, even if provision of counsel did create an asymmetry, there's a good reason why.  It's a reason that the learned justices could have figured out for themselves, or at least you'd think so.  The reason is that one of the people before the judge stands to go to jail; the other one doesn't.  When Turner and his wife went to court, there was not a chance in the world that she would go to jail or be punished in any way.  Why would she have been? But Turner faced jail if he didn't argue his case effectively, as in the event he did not.  And it is that prospect of jail that should require that he have an attorney; that's what the case is about.  To say, as the majority does, that provision of an attorney to keep someone out of jail gives him an unfair advantage over an opposing party faced with no such threat is to profoundly misunderstand the nature of the proceeding. Third, the majority's objection to providing counsel that it would "unduly slow payment" of child support beggars belief.  For one thing, that's been the objection of every law enforcement agency for all time to the assertion of due process rights by anyone accused of crime.  "How can we fight crime if we're forced to afford the accused due process?" The answer has always appropriately been that due process of law can indeed by cumbersome, but it's required if we don't want to live in a police state. And that's the answer to Breyer.  Yes it may impede, however slightly, the rush to judgment, but that is the whole point of due process rights - to force the state or whoever seeks to deprive the defendant of his freedom to be right.  The more due process corners we cut, the more innocent (or in this case indigent) people land in jail.  Justice Breyer and the majority opted to cut corners. And would it be too much to ask of the majority that they take notice of their own assumptions?  After all, the whole argument that providing an attorney would  "unduly slow payment" of child support assumes that the father is not indigent and therefore must pay.  It is astonishing to say the least that the learned justices apparently can't grasp the possibility of a man's being actually indigent, unable to pay and thus not ordered to pay. That brings us to what the majority considers an adequate substitute for an attorney - a form.  To be precise, the majority's "alternative procedural safeguards" may be alternatives, but they are in no sense safeguards. As the justices see it, a judge would be required to tell the obligor that he can claim inability to pay if he wants to, and, if he does, give him a form to fill out providing financial information and then ask him questions about his financial condition. In short, combining a judge who's strongly motivated from the outset to order child support, with a poor - and likely poorly educated - parent, is an open invitation to abuse.  Again, it's the poor and undereducated who will wind up in jail because of this ruling which is precisely what the Due Process Clause is supposed to prevent. And speaking of invitations, that's just what the Court has issued to the 45 states that currently provide counsel to indigent child support obligors.  South Carolina is in the small minority of states (five) that don't; all the rest do.  Now they know they don't need to. And what do you bet that cash-strapped states will jump at the opportunity?  What could make better financial sense than no longer having to pay those pesky lawyers and simply substituting a pre-printed form.  It makes perfect sense and will streamline civil contempt proceedings into the bargain.  It's a win-win situation except for the dad, but what's a few thousand destitute fathers in jail beside saving the state money? The solution to this was always simple; when a state seeks to incarcerate someone for whatever reason, that person should have an attorney to represent him/her.  Period.  It's a fundamental part of due process rights or should be.  Victor Hugo and Charles Dickens would understand.  That the justices of the Supreme Court don't speaks volumes about their ignorance of how the poor - and fathers - are treated every day in the courts of this country.

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