Although we rarely see family law related questions decided by the U.S. Supreme Court, a decision on whether a person facing incarceration for non-support during a civil contempt hearing is entitled to appointed counsel was decided by the Court in June 2011.
In that case, Turner v. Rogers, a South Carolina family court ordered petitioner Turner to pay $51.73 per week to respondent Rogers to help support their child.Turner repeatedly failed to pay the amount due and was held in contempt five times. For the first four, he was sentenced to 90 days’ imprisonment, but he ultimately paid what he owed (twice without being jailed, twice after spending a few days in custody).
The Court noted that in a civil contempt proceeding of this type, the private interest that will be affected argues strongly for the right to counsel. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment since freedom “from bodily restraint” lies “at the core of the liberty protected by the Due Process Clause.”
The Court held that under the circumstances, Turner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedural safeguards. The Court pointed to substitute procedural safe-guards, that, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty, specifically the following:
(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.
The Court took note that Turner did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. Moreover, the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated for one year.
This, held the Court, provides justification for court-appointed counsel in such a case.
See Turner v. Rogers, 546 U.S. ____ (2011) to read this decision.