Civil contempt orders can be applied to a willful failure to pay court ordered child support. This process is initiated by a Motion for Rule to Show Cause in which the alleged failure to pay support is detailed. Unlike in defending a criminal charge in which the State must show beyond a reasonable doubt that you failed to provide food, clothing, shelter or medical care here it only needs to be shown, by a preponderance of the evidence, that you failed to pay court ordered support.
Before it gets to this stage you need to take some actions to protect yourself. File a Motion to Modify Child Support Payments. Use the Indiana Child Support Calculator to determine what the presumptive support amount should be. If you must travel a significant distance to facilitate visitation then there should be a downward revision for that. Any expenses you incur beyond necessary support that directly benefits your child should also be detailed in this motion. If your child is active in 4H and you are the one who takes your child to all events including the times that are not on your weekends. This along with the entry fees and other costs should be detailed also.
Child Support Payment Orders are to established to maintain the lifestyle for the children that they would have enjoyed had the parents relationship stayed intact. To this end you should seek an accounting order to ensure that the support payments are actually being used for the child’s benefit. It is also not the purpose of the Support Guidelines to force a parent into additional work just to make the support payments.
Often the county prosecutor will join the action ‘in rem’ meaning in place of your child. The prosecutor must file a Motion to Intervene pursuant to TR24. If your cause comes for hearing and the State appears without having filed a Motion to Intervene then you should object for lack of standing as not being a party to the cause. The prosecutor must also file an appearance pursuant to TR3.1.
At a hearing you are entitled to be represented by an attorney if you feel you need one. If you cannot afford an attorney the court must appoint one to represent you. In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987). The United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), held that “an indigent litigant has a right to appointed counsel … when, if he loses, he may be deprived of his physical liberty.” This should be secured through a Motion for the Appointment of Pauper Counsel.
In 1963 the Supreme Court first applied the Sixth Amendment right to counsel to the states, through the Fourteenth Amendment. The Court in Gideon v. Wainwright, 372 U.S. 335 (1963), held that the right to counsel for a criminal defendant is “fundamental,” and that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344. While the Gideon Court clearly addressed the issue of due process and the Sixth Amendment, it did not ultimately determine what constituted a “criminal prosecution” for entailing Sixth Amendment coverage.
In 1972 the court answered that question with its holding in Argersinger v. Hamlin, 407 U.S. 25 (1972). Charged in Florida with carrying a concealed weapon, a crime punishable by up to six months imprisonment, and/or $1,000 fine, plaintiff was tried, convicted, and sentenced to ninety days in jail. Upon these facts the Court held that a defendant threatened with imprisonment, regardless of length of potential sentence, is entitled to the assistance of counsel and further, that a defendant is entitled to the appointment of counsel when he cannot afford his own. Ibid. The Court specifically stated that, under the Sixth Amendment, “no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at trial.” Id. at 37. The court made clear that the right to counsel in a criminal case is not dependent on the character of the charge, but rather on the potential loss of liberty. Where physical liberty is not at stake, the Court held, no such presumption exists. The potential loss of “physical liberty” therefore becomes the critical factor determining the right to counsel; Lassiter made clear that the labels “civil” and “criminal” are no longer important.
If the court fails to provide counsel to the alleged child support obligor then it has determined at that moment that incarceration is not an option.
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