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.