...impressed by his humanity and empathy

Case Notes: Constitutional right to free attorney for support contempt?

Question: Does a defendant have the constitutional right to a (free) attorney in connection with support contempt charges? Answer: No.

A defendant facing criminal charges is constitionally entitled to free legal counsel, often a "Public Defender". However, a defendant facing civil proceedings is generally not entitled to free legal counsel. Contempt of court for non-payment of support is a kind of civil-criminal hybrid. In this case, the defendant was facing civil charges of contempt of court for failure to pay child support. However, defendant's civil contempt lead to his incarceration.

Family law is state law. But federal issues occassionally intrude upon this area of law. In the case of Turner v. Rodgers, 131 S. Ct. 2507 (2011), the United States Supreme Court dealt with the question of whether an indigent defendant was constitutionally entitled to free legal counsel when facing incarceration for non-payment of support. The Supreme Court determined that a defendant facing incarceration for failure to pay support does not have an automatic right to free legal counsel. However, in Turner v. Rodgers, the unprepresented defendant was not adquately protected by the procedures used in South Carolina and so his case was sent back for re-trial.

The Supreme Court addressed 3 questions on the way to its decision:

1. Was the case "moot" because defendant had already served his jail time? No. Defendant faced incarceratiion in the future based on a recurrance of the prior offense, so the case was not moot.

2. Whether the 14th Amendment's "Due Process" clause entitles an indigent defendant to court appointed counsel when facing the possibility of incarceration? No. This conclusion was based upon three considerations: (A) The lower court must examine the defendant's ability to pay as part of a support contempt action; (B) The plaintiff is often an indigent and unrepresented custodial parent. It would be unfair to provide defendant with free legal counsel while the custodial parent must represent herself or himself; (C) A set of "substitute procedural safeguards" must be offered to the defendant.

3. Was the defendant offered a set of accetable "procedural safeguards" to protect his interests? No. In cases such as this, safeguards would include (A) Notice to the defendant that his ability to pay is a critical issue in his contempt proceeding (B) The use of a form (or suchlike) to obtain the relevant financial information from the defenndant (C) An opportunity for the defendant to respond to questions about his financial status; and (D) an express finding by the court that the defendant has an ability to pay.

In the Turner v. Rodgers case, the South Carolina court never determined if the unrepresented defendant had an ability to pay before sending him to jail and so the case was sent back to the South Carolina court to be re-tried. The core meaning of Turner v. Rodgers is that child support contempt defendants are not entitled to court appointed representation even where incarceration is thereatened, but that state courts must follow certain procedures to protect the unrepresented defendant.

As always, speak to your attorney before applying this case to your circumstances. In the interest of clarity, I did not address several aspects of this opinion. Also, almost all rules have exceptions and the exceptions often have exceptions.