Right to counsel; civil contempt
The Fourteenth Amendment’s Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration.
First, the likely critical question in these cases is the defendant’s ability to pay, which is often closely related to his indigence and relatively straightforward. Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding,” Gagnon, supra, at 787, creating a degree of formality or delay that would unduly slow payment to those immediately in need and make the proceedings less fair overall. Third, as the Federal Government points out, an available set of “substitute procedural safeguards,” Mathews, supra, at 335, 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.
691 S. E. 2d 470, vacated and remanded.
10-10 Turner v. Rogers
Breyer, J.; Thomas, J., dissenting.