Gusty A.E. Sunseri & Associates, P.C. Attorneys at Law

Jail for failure to pay child support not enough to require lawyer

It has been established since the landmark case of Gideon v. Wainwright in 1963 that criminal defendants facing the possibility of going to jail must be provided with an attorney if they cannot afford one. Earlier this week, the U.S. Supreme Court had to decide whether the Constitution requires the same protection for civil defendants in contempt hearings for failure to pay child support.

Failure to pay child support carries the possibility of going to jail for contempt of court. For that reason contempt cases have the same threat to an individual's liberty that was found in Gideon. However, the Supreme Court was not convinced that the same right to counsel applies in child support collection cases.

Pittsburgh child support attorneys point out that while child support collection cases do involve the threat of jail, they are civil cases and not criminal cases. The Supreme Court found that this distinction was crucial to the determination of whether there is a right to counsel for child support collection defendants.

In the view of the Supreme Court, jail for failure to pay child support is not the same as jail for a criminal conviction, because the defendants jailed for failure to pay child support have the ability to get themselves out of jail by paying up. They hold the keys to their own jail cells, so to speak.

Also, the right to counsel that was identified in Gideon was based on the Sixth Amendment, which applies only to criminal, not civil, proceedings.

The decision was 5-4, with the more conservative justices in the minority, but not because they believed there was a right to counsel in civil contempt cases. Their dissent was based on other aspects of the majority opinion, which addressed the possibility of the plaintiff, but not the defendant, having a lawyer in a civil contempt case, and which made recommendations based on suggestions by the federal government, which was not a party to the case before the court.

Source: NYT "Court Issues Split Ruling on Poor's Right to Counsel" 6/20/2011

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