In my July 13 post I discussed the U.S. Supreme Court decision in Turner v. Rogers , in which the high court discussed the procedural safeguards necessary to meet due process in a civil contempt hearing in which a non-paying parent could be sent to jail. While a court-appointed lawyer was not required in the circumstances of this case–in which the child’s mother, without her own lawyer, rather than a government agency, brought the action to collect back support–other procedural safeguards were required. The Court laid these out. They are clear notice that ability to pay is the crucial issue at the contempt hearing, a form or an equivalent way to establish information about the non-payor’s financial condition, the opportunity for the non-payor to respond to the information presented, and a judicial determination that the non-payor has the ability to pay.
Because the problems presented in the Turner case are common everywhere, I asked Lisa Gorrasi, the Administrator of the Hamilton County Domestic Relations Court what the local policy is in a civil contempt hearing. Here is her answer:
“At a civil contempt hearing for failure to pay child support, if the magistrate makes the finding that an obligor has an inability to pay, there will not be a contempt finding, since the inability is a defense. However, the burden to prove the inability lies with the obligor.
Additionally, when the government (the local Child Support Agency) files a contempt action, the Summons that is issued has the following language: You have the right to counsel in these proceedings. If you believe that you are indigent, you must apply to the Public Defender’s Office, 800 Broadway, 1st floor lobby (information desk), within three business days after receipt of this summons. The Court may refuse to grant a continuance to obtain counsel if you fail to make a good faith effort to do so prior to the hearing.
Also, prior to imposition of sentence on a contempt finding, the assigned judge again advises the obligor in writing of their right to have a lawyer at the hearing and any future hearings. If the obligor waives the right, a Waiver of Counsel is signed and placed of record.”
My thanks to Lisa for her response