Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
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Since the NCP did not have clear notice that ability to pay would be the critical question in<br />
this proceeding, nor was he provided with information that would have allowed the NCP to<br />
disclose such information, the South Carolina courts erred in finding him able to pay and thus in<br />
civil contempt.<br />
‣ We must decide whether the Fourteenth Amendment‘s Due Process Clause requires<br />
the State to provide counsel (at a civil contempt hearing) to an indigent person<br />
potentially faced with such incarceration.<br />
‣ We conclude that where as here the custodial parent (entitled to receive the support)<br />
is unrepresented by counsel, the State need not provide counsel to the noncustodial<br />
parent (required to provide the support). But we attach an important caveat, namely,<br />
that the State must nonetheless have in place alternative procedures that assure a<br />
fundamentally fair determination of the critical incarceration-related question,<br />
whether the supporting parent is able to comply with the support order.<br />
‣ The Due Process Clause of the 14th Amendment, while it does not require a state to<br />
provide counsel at civil contempt proceedings to indigent individuals, even if<br />
incarceration is a possibility, does require some safeguards to prevent the erroneous<br />
deprivation of liberty. South Carolina Supreme Court reversed and remanded.<br />
‣ To determine whether a right to counsel is required here, opposing interests and the<br />
probable value of ―additional or substitute procedural safeguards‖ must be taken into<br />
account.<br />
‣ An available set of procedural safeguards, if employed together, can significantly<br />
reduce the risk of an erroneous deprivation of liberty. These include:<br />
(1) notice to the defendant that his ―ability to pay‖ is a critical issue in the contempt<br />
proceeding;<br />
(2) the use of a form (or the equivalent) to elicit relevant financial information from<br />
him;<br />
(3) an opportunity at the hearing for him to respond to statements and questions<br />
about his financial status; and<br />
(4) an express finding by the court that the defendant has the ability to pay.<br />
‣ The record indicates that Turner received neither counsel nor the benefit of<br />
alternative procedures like those we have described. He did not receive clear notice<br />
that his ability to pay would constitute the critical question in his civil contempt<br />
proceeding. No one provided him with aform (or the equivalent) designed to elicit<br />
information about his financial circumstances. The court did not find that Turner was<br />
able to pay his arrearage, but instead left the relevant ―finding‖ section of the<br />
contempt order blank. The court nonetheless found Turner in contempt and ordered<br />
him incarcerated. Under these circumstances Turner‘s incarceration violated the<br />
Due Process Clause.<br />
‣ This decision does not address civil contempt proceedings where the underlying<br />
support payment is owed to the State. (likely in such matters the right of an indigent<br />
NCP to court appointed counsel would be guaranteed.)<br />
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