On June 20, 2011 the United States Supreme Court released a ruling on a case that came from South Carolina in which the sole issue before the Court was whether a the person paying child support should be entitled to an attorney at a civil contempt hearing?
The answered this question and created an opportunity for appointment of counsel in various similar situations. This means that the highest court in the United States of America believes that a person who is ordered to pay child support has rights that are worthy of protection, especially against the threat of imprisonment.
Civil contempt is the process by which a judge enforces an order of the court. If the judge finds a person in contempt they can be sentenced to pay a fine or spend time in jail. Most States require that the person accused of contempt be served with a motion that details the specific actions the court may believe are in contempt of court. The paying person must be served with the motion and notice of the hearing which must alert them to the fact that jail time is a possible sanction. The person receiving does not necessarily have to attend the hearing if the State is represented by the Attorney General’s office and can produce sufficient evidence for the court to find that the paying person has not paid properly. The person receiving child support or the State must prove that there is a proper order for child support and that the person paying is delinquent. They must also show the amount that the paying person is behind on their payments. The person paying then has the opportunity to present evidence in their defense such as proof of payment or an accounting error, inability to pay due to incarceration or simple inability to pay. The court assumes that everyone has the ability to pay their child support obligations.
After the evidence is presented the court will issue an order that includes the court’s findings regarding the amount that is delinquent as well as the person paying’s ability to pay. The court will also state whether they find the person paying in contempt or not and if so what the sentence is. The judge has the ability to find someone guilty of contempt and order that they be jailed, but put off sentencing them for a period of time to give them a chance to redeem themselves.
Generally when this happens the judge will order that child support payments be made as well as an additional amount to catch up on the arrears. The judge will set a time for everyone to return to examine whether the new schedule was followed or not. If not the person ordered to pay will be sent to jail for the time previously specified.
Civil contempt is an important tool in the hands of the court to force parents with the ability to support their children to do so. There is nothing wrong with civil contempt proceedings so long as due process is followed. The problem is when due process isn’t followed. If the person paying does not have the ability to pay and the court jails them for contempt the judge is not using their power to coerce payment but to punish. This is especially likely to occur when the person ordered to pay does not have proper legal counsel.
Without a lawyer to represent them they may not be able to properly present proof of their inability to pay to the court. Luckily the Supreme Court’s recent ruling puts safeguards into place by forcing the court systems to give attorneys to anyone threatened with jail time for not paying child support.