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US SCt: Right to counsel or other kinds of help when facing jail for support arrears

Michigan international family lawyer Jeanne Hannah has noted  a new U.S. Supreme Court ruling in Turner v. Rogers, saying that a parent facing jail for non-payment of support has a right either to a lawyer or to procedures that would help him understand and defend the case.

Judge Breyer wrote, "the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order,even if that individual faces incarceration. ... In particular, that Clause does not require the provision of counsel where the [recipient of support] is not represented by counsel and the State provides alternative procedural safeguards ... adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings" [specifically, a formal finding that the defendant had the ability to pay].

Breyer distinguished that situation from two other kinds of cases:

"civil contempt proceedings where the underlying child support payment is owed to the State ... . Those proceedings more closely resemble debt-collection proceedings. The government is likely to have counsel or some other comptent representative. ... The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”

"Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.”

Presumably, those are cases where the need for defense counsel is more compelling. But even in this case, the Court found that due process was violated because the indigent defendant neither had counsel nor the following set of safeguards:

"(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; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay."


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