The problem with contempt in child support cases
Note: If you are facing a contempt proceeding in a child support case, do not call me. I do not practice in the family court other than for juvenile criminal defense. (Besides, if you could afford to retain me to fight a contempt charge, you could afford to pay the child support and then you would not be held in contempt, right?)
Still, this bothers me greatly. Child support contempt proceedings are like a revolving door to prison for some people. They cannot pay the child support, they are held in contempt of court and sentenced to 6 months to a year in prison without the assistance of counsel, they get out of prison and have no job or life because they've been in prison for the past however many months, they get hauled back into court and are sentenced again for contempt of court for not paying child support.
In Price v. Turner, decided March 29, the S.C. Supreme Court held that there is no right to counsel for indigent defendants in family court child support proceedings - the Defendant was held in contempt for failure to pay child support (nearly six thousand dollars worth), and was sentenced to one year in prison.
The Courts have approved the continuation of one of the few debtor's prisons remaining in the world today - if people have no money to pay the debt how is imprisoning them going to help the situation? Perhaps we could make them indentured servants upon release until the child support arrears are paid off, like we did in the 1800's.
The Court's reasoning for denying counsel to the defendant is that the contempt is civil - the purpose of civil contempt is not to punish, but to coerce the person to comply with the court's order. That makes sense, if the person has six thousand dollars in their bank account and simply refuses to pay it; but this defendant, according to the appellate opinion, testified that the failure to pay was due to incarceration, drug addiction, unemployment, and injury. Tell me again how another year in prison helps the situation?
Criminal contempt, which is designed to punish, triggers additional safeguards which include the right to counsel. Civil contempt, which is designed to coerce the defendant to comply with the court's order, has no such safeguards.
It appears that the issue on appeal in this case was the denial of the right to counsel, and the Court did not decide any other issues in the case. I am wondering if the evidence in the court below really supported a finding of a willful violation of the court's order - if there is no money available to "purge the contempt" and secure release from prison, can the contempt really be civil?
Comments
There would be less of these cases if it was mandatory that Child Support Enforcement produce educational material for fathers informing them that they provide free legal representation for a modification of child support.
http://child_support_modifications.dads-house.org/
http://www.pueblo.gsa.gov/cic_text/family/childenf/noncustodial.htm#food
Posted by: George R. McCasland | April 5, 2010 7:35 PM
I have flied an order of contempt for non payment of child support for the 2nd time in six months. I am in support of the statement that if you can afford an attorney, or a $500 car payment, etc. than you can pay your child support. I am also in support of the idea that jail time, suspension of driver's license does not help the situation. No money is being made in those 2 situations. I do not have the luxury, as the primary custodian or whatever they are calling it now, to not pay bills. I cannot miss my payments for child care, I need to work. I carry the children's health insurance, can't miss. What would this person be doing with the kids if I wasn't taking care of everything?? There has to be a better way. I cover costs by picking up extra hours. Why not impose a second job, or money management on someone who is making money but decides that there are things that are more fun than paying for health insurance for their children. And this person still gets to have visitation as dictated in the same final judgement that established child support. I don't get it. Shouldn't responsibility be some issue when you are spending time with your children?
Posted by: Molly delorme | August 1, 2010 2:40 AM
Contempt rules are not followed in our family court system. If you are unemployed in todays economic down fall and are looking for a job and have a good education how is it a Judge could find you in willful contempt? Our system is broken. Our judges need to get off the high horse our system gave them to ride and look out the window. Stop sending people to jail because they lack a job and a woman cries foul.
Posted by: Dale brooks | September 8, 2010 12:42 PM
In Charleston County, many defendants are permitted to participate in a work release program -- they live in jail, but can leave for work and then return at night. If that's true elsewhere in the state, your argument fails.
Posted by: R | November 7, 2010 4:41 PM
I was paying over a $1000 a month toward my support and arrears and still it was considered willful contempt. I only bring home $1600 a month in my current job. Kind of hard to live off of $600 a month. Also, being incarcerated and on work release has reduced the amount of hours I can work which makes it even harder to get caught up.
Posted by: M Brown | March 1, 2011 12:33 PM