Update: Indigent Parents Right to Counsel Case Before SCOTUS

The Supreme Court of the United States (SCOTUS) recently reached a decision in a child support enforcement case out of South Carolina.

Specifically, SCOTUS was called upon to decide whether the constitutional rights of an indigent father who was found to be in civil contempt for failing to make child support payments – and who was ultimately jailed – were violated.

The case is Michael D. Turner v. Rebecca Price and the South Carolina Department of Social Services.


In January 2008, a family court judge in Oconee County, South Carolina, found Michael Turner to be in civil contempt due to his failure to pay $5,728 in child support. Turner, who had been held in civil contempt for the same reason on multiple occasions, was subsequently sentenced to exactly one year in jail.

However, the family court judge also held that “[Turner ] may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release.” Essentially, this meant that if Turner paid the child support owed, he could avoid the sentence altogether.

It must also be noted that Turner represented himself at the hearing and was not informed of his right to an attorney.

The Appeal

Turner decided to appeal the family court judge’s civil contempt order and eventually wound up before the South Carolina Supreme Court. In his appeal, he argued that his rights under the Sixth (right to counsel) and Fourteenth (due process) Amendments had been violated, and that indigent defendants in civil contempt proceedings were guaranteed a right to an attorney under the U.S. Constitution.

However, the South Carolina Supreme Court disagreed, finding that no such right existed.

The court justified its decision by stressing the difference between criminal contempt and civil contempt. Specifically, that the primary objective of criminal contempt – where defendants have a constitutional right to an attorney – is unconditional punishment for disobedient or disrespectful behavior towards the court, while the primary objective of civil contempt is merely conditional punishment designed to force a party into compliance with a court order.

Accordingly, the court found that since Turner had the ability to free himself by paying the child support, and was subject to neither a permanent nor unconditional loss of his liberty, there was no constitutional right to an attorney.


In a 5-4 decision, the Supreme Court affirmed the decision of the South Carolina Supreme Court, ruling that no constitutional right to an attorney automatically exists in civil contempt hearings. However, the Court appeared to limit this decision to cases where the parent looking to recover past due child support is unable to hire their own attorney.

The Court’s rationale for this decision seemed to rest on the idea that to provide only delinquent parents (i.e. defendants) with legal representation at civil contempt hearings could result in an “asymmetry of representation” that would work squarely against a parent looking to collect child support.

Interestingly, Justice Breyer (who wrote the opinion) indicated that “substantial procedural safeguards” should still be utilized by the states in civil contempt proceedings involving the payment of child support to ensure that the rights of indigent defendants are protected.

Specifically, Breyer – joined in his decision by Justices Kennedy, Ginsburg, Kagan and Sotomayor – found that states should provide indigent defendants with notice that ability to pay will be the primary issue at the hearing; use a form or other mechanism to gather information about defendants ability to pay; provide defendants with opportunity to be heard; and mandate that judges only decide the issue of whether the defendant can pay but chooses not to do so.

Stay tuned for more from our Ft. Worth family law blog …

To learn more about child support or post-divorce issues, contact an experienced and skilled legal professional.

This post is for informational purposes only and is not to be construed as legal advice.

Related Resources:

Court issues split ruling on poor’s right to counsel (The New York Times)