Department of Justice Warns State Child Support Enforcement Agencies of Illegal Practices

May 5, 2016
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Five years ago, the United States Supreme Court ruled in Turner v. Rogers that state judges are required to hold a hearing to determine whether a parent who’s behind on his/her child support obligations should be jailed for contempt. In some cases, the parent may be entitled to an attorney paid for by the state. But in all cases, prior to committing him to jail, the court must find not only that the parent hasn’t paid, but that failure to do so is willful, i.e. he/she has the ability to pay, but hasn’t.

But all too often, state bureaucrats in the child support enforcement authority and family court judges simply ignore the requirements laid down by the Court in Turner.

Now the Department of Justice (DOJ) has issued a “Dear Colleague” letter informing recipients that their failure to follow the dictates of Turner can subject them to civil liability under federal Civil Rights Statute, 42 U.S.C. §1983. In due course, Commissioner Vicky Turetsky of the federal Office of Child Support Enforcement (OCSE) informed state officers of their responsibility to find a willful refusal to pay before a noncustodial parent can be sent to jail:

“One purpose of the DOJ letter is to address “some of the most common practices that run afoul of the United States Constitution and other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully.”…

The letter states that courts may not incarcerate a person for nonpayment of fees and fines without first conducting an indigency determination and establishing that the failure to pay was willful. In addition, courts must consider alternatives to incarceration for indigent defendants who are unable to pay. 

The letter provides that courts also must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees, and must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections…

OCSE’s Action Transmittal 12-01 provides clarity to courts regarding their legal duty to inquire about a parent’s ability to pay prior to incarceration for nonpayment, which specifically refers to the Turner v. Rogers ruling. “Civil contempt that leads to incarceration is not, nor should it be, standard or routine child support practice. By implementing procedures to individually screen cases prior to initiating a civil contempt case and providing appropriate notice to alleged contemnors concerning the nature and purpose of the proceeding, child support programs will help ensure that inappropriate civil contempt cases will not be brought.” 

Did you ever think you would live to see the day when the head of the top child support enforcement agency in the country would acknowledge that some of the collection practices of the states have been illegal, and even unconstitutional???

Truly, change is in the wind, and NPO is fanning it. Child support enforcement is harsh enough as it is. Kudos to the DOJ and the OCSE for forcing states to abide by the law as laid down by the U.S. Supreme Court.