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S.C. hears arguments on right to attorney in child support cases

The U.S. Supreme Court recently heard oral arguments on the issue of whether parents facing incarceration because of failure to pay child support have the right to an attorney.

The appeal arose from a case involving a South Carolina man who had been held in civil contempt multiple times and put in jail for up to a year at a time for failure to pay child support.

Civil contempt is intended as a coercive measure, and-at least theoretically-is not a punishment. But the dad involved the suit was unable financially to comply with the court's order, and faced multiple incarcerates as a result. He claimed that an attorney would have helped him convince a judge that putting him in jail was a mistake, given his circumstances.

Following Gideon v. Wainwright in 1963, a series of decisions established that the 6th Amendment guarantees indigent criminal defendants facing loss of liberty the right to an attorney. But those cases didn't establish the right to an attorney in civil proceedings. Still, the majority of states currently provide lawyers to indigent parents facing incarceration for failure to pay child support.

Attorney for the man behind Wednesday's hearing told the justices that they should rule that anyone facing incarceration because of failure to pay child support is entitled to a lawyer. Some of the justices, however, questioned how broadly such a rule would be applied. Justice Ginsburg asked the attorney whether such a rule would apply to spousal support cases, to which the attorney replied in the positive.

The opposing attorney said that such a ruling would inevitably include many immigration and extradition cases, and would require the reformulation of rules in a large number of states. He warned the justices that requiring states to provide lawyers could cause states to not go after parents defaulting on child support, because of the attorney costs involved.

Counsel for the federal government argued that the Supreme Court should take a middle ground and rule that indigent parents at least have the right to "a meaningful opportunity to establish [their] present inability to pay."

Source: New York Times, "Justices Grapple With Issue of Right to Lawyers in Child Support Cases," Adam Liptak, 23 Mar 2011.

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