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 this proceeding, nor was he provided with information that would have allowed the NCP to disclose such information, the South Carolina courts erred in finding him able to pay and thus in civil contempt. ‣ We must decide whether the Fourteenth Amendment‘s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. ‣ We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order. ‣ The Due Process Clause of the 14th Amendment, while it does not require a state to provide counsel at civil contempt proceedings to indigent individuals, even if incarceration is a possibility, does require some safeguards to prevent the erroneous deprivation of liberty. South Carolina Supreme Court reversed and remanded. ‣ To determine whether a right to counsel is required here, opposing interests and the probable value of ―additional or substitute procedural safeguards‖ must be taken into account. ‣ An available set of procedural safeguards, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. These include: (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 record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with aform (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant ―finding‖ section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner‘s incarceration violated the Due Process Clause. ‣ This decision does not address civil contempt proceedings where the underlying support payment is owed to the State. (likely in such matters the right of an indigent NCP to court appointed counsel would be guaranteed.) - 54 -
Duty to Support; Duration of Support §42-371.01 Duty to pay child support; termination, when; procedure; State Court Administrator; duties. (1) An obligor’s duty to pay child support for a child terminates when (a) the child reaches nineteen years of age, (b) the child marries, (c) the child dies, or (d) the child is emancipated by a court of competent jurisdiction, unless the court order for child support specifically extends child support after such circumstances. (2) The termination of child support does not relieve the obligor from the duty to pay any unpaid child support obligations owed or in arrears. (3) The obligor may provide written application for termination of a child support order when the child being supported reaches nineteen years of age, marries, dies, or is otherwise emancipated. The application shall be filed with the clerk of the district court where child support was ordered. A certified copy of the birth certificate, marriage license, death certificate, or court order of emancipation or an abstract of marriage as defined in section 71-601.01 shall accompany the application for termination of the child support. The clerk of the district court shall send notice of the filing of the child support termination application to the last-known address of the obligee. The notice shall inform the obligee that if he or she does not file a written objection within thirty days after the date the notice was mailed, child support may be terminated without further notice. The court shall terminate child support if no written objection has been filed within thirty days after the date the clerk’s notice to the obligee was mailed, the forms and procedures have been complied with, and the court believes that a hearing on the matter is not required. (4) The State Court Administrator shall develop uniform procedures and forms to be used to terminate child support. Source: Laws 2006, LB 1115, § 30. §43-504. “(1) The term dependent child shall mean a child under the age of nineteen years who is living with a relative or with a caretaker who is the child's legal guardian or conservator in a place of residence maintained by one or more of such relatives or caretakers as his, her, or their own home, or which child has been removed from the home of his or her father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first or second cousin, nephew, or niece as a result of judicial determination ..” Source: Laws 2007, LB 351, §1 § 43-1410. Child support; decree or approved settlement; effect after death of parent. Any judicially approved settlement or order of support made by a court having jurisdiction in the premises shall be binding on the legal representatives of the father or mother in the event of his or her death, to the same extent as other contractual obligations and judicial judgments or decrees. Source: Laws 1941, c. 81, §10, p. 325; C.S.Supp.,1941, § 43-710; R.S.1943, (1983), §13-110 Cavanaugh v. DeBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992) The Nebraska Supreme Court, in Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992), held that in the absence of a statutory provision otherwise, in a child custody controversy, a fit biological or adoptive parent has a superior right to custody of the child. The right of a biological parent to custody of the minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and the courts may - 55 -
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Happy 2012! In The News: Unicameral
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Table of Contents:* * (accessible v
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Table of Contents (continued): Pare
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A Note for Legal Practitioners: Mem
Page 9 and 10: Overview/ IV-D Attorney Duty Gangwi
Page 11 and 12: appear to him [or her] legal and ju
Page 13 and 14: ―the Court draws a distinction be
Page 15 and 16: otherwise provided in sections 25-2
Page 17 and 18: State ex rel. Lemon v. Gale, 272 Ne
Page 19 and 20: disobedience as an essential elemen
Page 21 and 22: student loan that the noncustodial
Page 23 and 24: only if it shall find and determine
Page 25 and 26: Emery v. Moffett, 269 Neb. 867, 697
Page 27 and 28: $60,000+ in retro support for 17 ye
Page 29 and 30: month by said clerk in cases in whi
Page 31 and 32: concerning the proceedings in the a
Page 33 and 34: Minimum Contacts. An act of sexual
Page 35 and 36: [UIFSA] Section 42-742(a)(5) clearl
Page 37 and 38: In the case of People v. Lucero, 74
Page 39 and 40: A court may not impose punishment
Page 41 and 42: Contempt What follows is a discussi
Page 43 and 44: waived sovereign immunity, the juve
Page 45 and 46: A parent has no right to insist upo
Page 47 and 48: usiness realities, the amount of th
Page 49 and 50: 9, of the Nebraska Constitution, bo
Page 51 and 52: Drew on Behalf of Reed v. Reed, 16
Page 53 and 54: Absent circumstances which justify
Page 55 and 56: Welch v. Welch, Jr., 246 Neb. 435,
Page 57 and 58: guardian ad litem to represent the
Page 59: Clymer v. La Velle, 194 Neb. 91, 23
Page 63 and 64: Finnern v. Bruner, 167 Neb. 281, 92
Page 65 and 66: Henke v. Guerrero, 13 Neb. App. 337
Page 67 and 68: Millatmal v. Millatmal, 272 Neb. 45
Page 69 and 70: 24A Am. Jur. 2d Divorce and Separat
Page 71 and 72: the tax exemptions. [The noncustodi
Page 73 and 74: obligation, should generally apply
Page 75 and 76: ―[C]oncerns regarding the stigma
Page 77 and 78: (3) The court shall apply the statu
Page 79 and 80: (d) If, at any time in the proceedi
Page 81 and 82: Birth related medical expenses rema
Page 83 and 84: Brockman v. Brockman, 264 Neb. 106,
Page 85 and 86: Daycare and medical reimbursement o
Page 87 and 88: equired by the guidelines. Such req
Page 89 and 90: health care coverage to be provided
Page 91 and 92: Given that the agreement sets forth
Page 93 and 94: Newer Case Law re. Incarceration an
Page 95 and 96: Dueling v. Dueling, 257 Neb. 862, 6
Page 97 and 98: has no control over should not be c
Page 99 and 100: Any employer who shall fail or refu
Page 101 and 102: §43-1718.01. Obligor; subject to i
Page 103 and 104: such notice bears to the total amou
Page 105 and 106: forward the child support payment.
Page 107 and 108: Servicemembers Civil Relief Act of
Page 109 and 110: Judgments (see also Jurisdiction) 2
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(3) The individual resided with the
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―in a proceeding under the Nebras
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Juvenile Court Many headaches are c
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§ 43-3319 License holder; motion o
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distributions to the judgment for $
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appellate court tries factual quest
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Note: In response to a new federal
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§43-512.14. Title IV-D child suppo
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adduce evidence of any inequity tha
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Non-custodial parent who lost high
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Lamb v. Lamb, 14 Neb. App. 337, 707
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trouble at work and resigned his jo
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Riggs v. Riggs, 261 Neb. 344, 622 N
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not, under the circumstances presen
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Wilson v. Wilson, 19 Neb. App. 103,
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§43-512. Application for assistanc
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§43-1406 Determination of paternit
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(4) All judgments under this sectio
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Carlson v. Bartels, 143 Neb. 680, 1
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as to the paternity of the minor ch
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Snodgrass v. Snodgrass, 241 Neb. 43
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Quirks, Oddities and other Practice
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Note: Additional resources relating
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egular contact with the child. Comp
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Cooper v. Cooper, 8 Neb. App. 532,
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into or born into these relationshi
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Moore v. Bauer, 11 Neb. App. 572, 6
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parents; child support; termination
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(B) the servicemember has a meritor
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Ward v. Ward, 7 Neb. App. 821, 585
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specifically finds that conformity
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[A] petition to modify alimony will
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Hall v. Hall, 238 Neb. 686, 472 N.W
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interests of a child are served by
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Source: Laws 1993: LB 500, § 22.
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seeks modification in the respondin
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§ 42-745 Effect of registration fo
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… First, we properly look to the
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Neither of the parties is authorize
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the purpose of that litigation, all
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and that the child's best interests
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D. Unless otherwise agreed to, inte
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(E) Any order for support presented
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Unicameral Update (A daily report o
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services. Under LB 288, cash medica
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BAH FAQ - http://perdiem.hqda.penta
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Daily Legal Newswire - www.law.com/
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Above All Else: Keep your sense of
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Child Support Enforcement - Sarpy County Nebraska

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