It is not often that the United States Supreme Court hears a family law case, so the Court's June, 2011, ruling in Turner v. Rogers has made a big impact and that impact can definitely be felt by family law practitioners in New Mexico.
The Turner case involved a father in South Carolina who was held in contempt and jailed for failure to pay child support. The opinion includes a long discussion of the right to counsel and what procedural safeguards are necessary to prevent an unconstitutional deprivation of liberty when parties to a civil proceeding face incarceration. The initial holding is that parties to a civil proceeding, even when that civil proceeding can result in jail time, do not have right to counsel under the Sixth Amendment.
However, the Court went on to hold that a contempt proceeding for failure to pay child support must provide some protection of the delinquent parent's due process rights. The safeguards include: 1) notice to the delinquent parent that his or her ability to pay is critical issue in the contempt proceeding; 2) the use of a form or some standardized procedure to gather the delinquent party's financial information; 3) a hearing at which the delinquent parent is allowed to present evidence as to his or her financial status; and 4) a specific finding by the court that the delinquent parent has the ability to pay.
Given this new ruling, the judges in the Second Judicial District for Bernalillo County, New Mexico, which encompasses much of the Albuquerque area, have recognized that the ability to pay is the key issue in contempt proceedings for failure to pay child support. Thus, they are now requiring attorneys who file motions for orders to show cause (which include a request that the responding party be held in contempt) to provide a responding party with a form designed to elicit their financial information.
In addition, the Court has will also ensure that a hearing will be held on all such contempt motions at which the allegedly delinquent parent be allowed to give statements and answer questions about his or her financial situation. And, finally, they are requiring an express finding that an allegedly delinquent parent has the ability to pay the support ordered before holding him or her in contempt.
Now, as is often true, the Turner case may create more questions than it answers. For instance, it specifically does not apply to cases wherein the state may be owed money because it has been making welfare or TANF payments on behalf of a child not being supported by the delinquent parent. This leads to the question of how the Turner ruling will affect cases when the Child Support Enforcement Division is involved and whether, ultimately, there may be additional procedural safeguards in those situations. For now, it suffices to say that Turner has changed the way courts around the country, including New Mexico, address the payment of child support.