Deadbeat dad’s get little help at the US Supreme Court

Until Chancellor Primeaux’s post about Turner v. Rogers, I had forgotten that the issue of non-represented deadbeat dads going to jail for failure to pay child support was before the United States Supreme Court. 

When it comes to clients, deadbeat dads rank right up there with child molesters and people that hurt puppies.  Not much sympathy there.   According to Turner’s own admissions,

I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September.

Depending on how you want to look at it, he either had a really bad run of luck or suffered the consequences of his own actions.  Either way, he landed in jail for contempt based on his failure to make timely child support payments.  The Court phrased the question as “whether the Due Process Clause grants an indigent defendant, such as Turner, a right to state appointed counsel at a civil contempt preceding, which may lead to his incarceration.”

The Court noted the “importance of the interest at stake” but found three considerations weigh against requiring the State to provide indigents with counsel in every preceding like this.  First, indigence can be determined easily in many cases prior to providing counsel.  Second, where the person opposing the deadbeat is his unrepresented wife rather than the government, appointment of counsel would create asymmetry of representation.  Third (and this is what the Court really latched on to), there are a set of substitute procedural safeguards which 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;
  3. An opportunity at the hearing for the defendant 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.  

I rarely read dissents, but the following quotes from Justice Thomas were spot on:

  • When fathers fail in their duty to pay child support,children suffer.
  • The interests of children and mothers who depend on child support are notoriously difficult to protect.
  • That some fathers subject to a child support agreement report little or no income “does not mean they do not have the ability to pay any child support.”
  • Rather, many  deadbeat dads opt to work in the underground economy to shield their earnings from child support enforcement efforts.
  • To avoid attempts to garnish their wages or otherwise enforce the support obligation, “deadbeats” quit their jobs, jump from job to job, become self-employed,work under the table, or engage in illegal activity.
  • Whether “deadbeat dads” should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support.

In any cases where you intend to ask for jail time for contempt, document the ability to pay of the non-custodial parent. 

  1. Get an 8.05 financial statement.
  2. Subpoena w-2’s and earning history from past and present employers.
  3. Get the last 3-5 years tax records.
  4. Send some discovery to  determine all sources of income and expenses.
  5. Find out the lifestyle of the non-custodial parent and compare it to income (Porche in garage and boat in Orange Beach?, but can’t pay?)

About randywallace
I am a husband, father, attorney, outdoorsman and cook.

One Response to Deadbeat dad’s get little help at the US Supreme Court

  1. ken goins says:

    According to the courts (and 99.99% of all Petitions for Contempt/informations (indictments) for Criminal Non-support), if the Obligor Parent is alive and not on a respirator; He has the ability. Never, not once ever will a court sua sponte take up the question of whether the monthly amount required is excessive or whether the Obligor parent has the ability (sufficient income after expenses) to pay the required monthly amount.

    Why would you ever look at assets without looking at income and expenses? Because you don’t care about ability only collection. Family law judges are quoted saying we know you are unemployed but do you have assets from which you can pay? This sounds like the children are the focus, but really the focus is on collection. what is a fair amount if you are unemployed. how much is the old boat/car worth? is the monthly amount now based on a guess as to how much you can sell the boat?

    if you In the Turner case, what is ironic in your description is that you describe a guy on meth, pot, every dope you can imagine and then broke his back and then argue that he is sophisticated enough to put on a case regarding his ability to pay with no legal training against a prosecutor (who only does this docket for last 8 years!!!)

    talk about a fait accompli. – you can shoot a US Senator on national TV and get more help than an unemployed father of 2 children with a high school diploma who went from 45k to minimum wage because the bicycle plant closed and moved to china who could not afford the $1,750 retainer fee to hire an attorney to file the modification. Instead he concentrated on keeping the utilities on and providing (and saving) the house so his children can have someplace to live during his custody (assuming 50/50 or 65/35 joint custody).

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