The 14th Amendment of the US Constitution requires states to provide legal counsel to an indigent person (noncustodial parent) at a child support civil contempt hearing that could lead to incarceration in circumstances where the custodial parent or opposing party was not represented by legal counsel. In the US Supreme Court appeals case, Turner v. Rogers, the Court held that a state does not need to automatically provide counsel to a defendant in a child support civil contempt proceeding, as long as the state provides due process protection.
The Federal Office of Child Support Enforcement (OCSE) recommends that states use procedures to safeguard the NCP from being cited to court for a contempt court action. These include:
Prior to citing an NCP to appear in court for failure to pay, CSS caseworkers must review the NCP's case(s) and determine if the NCP has the current ability to pay. Caseworker must attempt to identify information about the defaulting parent's income and resources in order to be prepared to testify to such information in court if the NCP is cited for a contempt action.
To meet minimum due process requirements, the CSS agency should follow certain procedural safeguards when citing the NCP to court for a contempt hearing:
The Motion/Order to Appear and Show Cause (DSS-4663) covers several of these due process requirements. The Findings of Fact in the resulting Order For Civil Contempt (DSS-4650) must include that the NCP has "ability to pay" the resulting ordered purge amount. Contempt sanctions can include such directives for the NCP as: participation in available workforce programs, fatherhood programs, or substance abuse programs, if appropriate.
Civil Contempt proceedings can be initiated when the obligor fails to abide by the terms of a voluntary support agreement or a civil court order that arose out of a hearing before a judge or jury, providing that the obligor has the ability to pay and procedural safeguards are followed. See Turner v. Rogers above.
The following is an explanation of civil contempt procedures:
Some judicial districts rely very heavily on pre-court negotiations to settle child support contempt actions. However, it must be noted that Clerks of Court accept only purge payments and that these payments do not prorate across all cases if the NCP has multiple obligations. If an agreement is reached after a NCP is served with a contempt action, a contempt order containing the agreed purge amount can be completed before court and presented to the judge. If accepted by the judge, the purge provision allows the NCP to pay the Clerk of Court. The Clerk does not accept any payments resulting from other types of negotiation, such as a voluntary dismissal or consent order, that do not find the NCP in contempt and contain monetary purge provisions. The NCP must mail those types of payments to the NCCSCC.
Administrative enforcement remedies other than contempt actions can be used to enforce child support obligations. For example, it might be advantageous to contact noncustodial parents (NCPs) prior to taking any other enforcement action, especially those NCPs who have recently allowed their support payments to become delinquent. If a repayment plan can be successfully negotiated, this approach can be considered as a cost savings to the CSS agency.
If a remedy involves a repayment plan that can be negotiated to avoid the remedy (such as revocation of occupational license), CSS caseworkers must investigate whether or not the NCP has multiple obligations. Since nearly all payments made to NCCSCC are prorated across all obligations, this must be take into consideration. Otherwise, the NCP can comply with a payoff plan or an amount agreed upon to reduce arrearages, but his/her account does not reflect this due to proration. Caseworkers must either investigate this possibility before taking further enforcement action or allow for the proration when initially establishing a repayment plan. It is important to remind the NCP that payments must be current on all cases if he/she expects to reduce arrearages on the case for which the enforcement action originally might have been taken.
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.