U.S. Supreme Court Makes It Harder to Find Contempt for Falure to Pay Child Support

In the 2011 U.S. Supreme Court case of Turner v. Rogers the father failed to pay child support and argued, “Well, when I first got out, 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. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.” The trial court held him in indirect civil contempt and sentenced him to 12 months of imprisonment without making any finding as to whether he was able to pay as ordered , and the U.S. Supreme Court remanded the case back to the trial court after evaluating whether he should be entitled to court appointed counsel if indigent.

The U.S. Supreme Court held that he was not entitled to court appointed counsel if the custodial parent was not represented by an attorney and the state had alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order.

The Supreme Court’s ruling hinged on the payor’s ability to pay and purge his contempt, as opposed to the actions which made the payor unable to pay. The nature of civil contempt “giving the prisoner the keys to the jail” will release many under this focus when payors, through their own actions, harm their ability to pay. Since the ruling the Illinois Attorney General’s Office has file far fewer petition for contempt. They are filing more petitions for judgments of arrearages instead. It appears a less restrictive remedy for the payee to seek enforcement of the judgment without contempt. 5/508(b) requires that in every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the Court must order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorneys fees of the prevailing party. This would often seem preferable to contempt as the payee can seek attorney’s fees and the Court must award it. I’m concerned that current personal inability to purge will excuse many from contempt. In the past, persons held in contempt would borrow from relatives to purge. Why should custodial parents be the bank?

Illinois law provides many tools for child support collection, but most hinge on a finding of contempt first. Unfortunately, the recent U.S. Supreme Court decision will shift the financial burden to the payee instead.

Illinois Civil Unions: Not necessarily gay marriage

Effective June 1, 20100, the Illinois Religious Freedom Protection and Civil Union Act governs the legal status for same sex and different sex couples entering into “civil unions” in Illinois. Borsberry Law Offices, P.C. is ready to handle those new changes in the law. Keep in mind that a “civil union’ is not a “marriage” in Illinois and Illinois continues to not allow same sex marriages. Rather, the Illinois Religious Freedom Protection and Civil Union Act legally recognizes the relationships of two people applying for and obtaining a state license from a county clerk’s office to establish a civil union, having a formal ceremony, and obtaining a ratifying certificate issued by the clerk’s office. The civil union license is valid for 60 days, and is valid only in the county in which it was issued, which means that the couple’s civil union ceremony must take place within that county. There is a one-day waiting period before the license becomes effective. As is the case for marriages, a court can waive this waiting period for a couple who files a petition showing sufficient cause. An officiant must complete the certificate confirming that the ceremony was performed, and send it to the county clerk within 10 days of the civil union ceremony.
The two members applying for Illinois Civil unions status must be at least 18 years’ old. Neither may currently be married, or in a civil union or substantially similar legal relationship, and neither may be closely related to each other by blood or adoption. Therefore, it may be necessary to terminate one type of legal relationship before entering another, even if with the same person. Non-Illinois residents must demonstrate that an Illinois civil union would not be prohibited in their home state.
Persons in an Illinois civil union will have the legal benefits and protections, and be subject to the same legal responsibilities, as are provided under Illinois law to married couples. These may include the right to equitable division of the relationship assets and debts, upon dissolution, the responsibility of joint financial support and liability for family debts arising during the union, and the right to seek maintenance upon dissolution of the union. The new Illinois law governing civil unions makes written agreements, akin to pre-nuptial agreements, enforceable. Civil union partners may also use change their names when entering a civil union.
The new law will also provide the right to seek child custody, visitation and support orders. There is now a presumption that both partners are parents of children born into the civil union, as opposed to children born out of wedlock or civil unions where the children are presumed to be that of the mother, unless a Voluntary Acknowledgment of Paternity is signed, which essentially establishes parentage, but gives the mother custody.
Civil unions partners will also have the right to not testify against their partner is certain legal proceedings. Illinois civil unions will also provide rights of hospital visitation, medical decision-making, and authority to receive information about a partner’s medical condition or treatment, the right to make funeral plans for a partner, and the rights of inheritance. The most anticipated right will be the right to provide health insurance for public employees. Civil union partners will also be able to hold real property in “tenancy by the entirety” and be able to file joint state income tax returns.
Illinois civil unions do not provide federal rights or responsibilities, such as the right to file joint federal income tax returns.
The new law will not only extend protections to same sex couples, but different sex couples in committed relationships who have children, incur debts, or obtain property even though not married. Even though couples in civil unions in Illinois will receive the benefits of the new law, it is still advisable to consult with an attorney on any complex legal decision. Please note that Illinois civil unions may not be recognized in all states, countries or jurisdictions.
We at Borsberry Law Offices, P.C. are advocates for our clients, not judges. We do not judge you, your family situation, or your lifestyle choices. We only advise you to take legal steps to safeguard your rights and the rights of those you care about.