Understanding Barriers to Representation for Civil Contempt in Child Support Cases & Examining Rule 13.8(b)
Parents who fail to pay court-ordered child support can face a range of penalties, including civil contempt of court and misdemeanor or felony charges, which could result in fines or even incarceration. The data is incomplete, but it’s estimated that at an average of 50,000 parents (mainly fathers) are incarcerated on any given day for child support nonpayment.
Every jurisdiction in the United States has a criminal prosecution process for nonpayment of child support; the charges range from misdemeanors to felonies depending on how much money is owed, with fines and prison sentences varying by state. Typically though, before any criminal charge is filed, a person may be found in civil contempt of court for failure to comply with payment of a child support order. The purpose of civil contempt is to coerce the person to obey a court order they violated to “protect another litigants’ rights.” Unlike criminal contempt, which serves to punish someone for violating a court order or disrespecting the court, civil contempt intends not to punish but to induce compliance.
A parent who hasn’t made a court-ordered child support payment may be brought into court on a petition for rule to show cause, which is the court’s way of enforcing payment. These parents can be found to be in civil contempt of court and may be put on probation or jailed for up to 60 days in Illinois (750 ILCS 5/505(a-5)). Importantly, people found in civil contempt are not entitled to legal representation as they would be in cases of criminal contempt, even though they may be jailed as a consequence. This means that public defense is not available to them.
In 2007, the Presiding Judge of the Domestic Relations Division of the Circuit Court of Cook County created a court rule, Rule 13.8(b), aiming to remedy this problem. Under Rule 13.8(b), Domestic Relations judges can appoint pro bono counsel to represent parents in child support contempt hearings when they “lack sufficient funds to obtain counsel.” Unfortunately, Rule 13.8(b) is not fully meeting the legal needs of parents in civil contempt hearings. Research is required to determine exactly what reforms will help the program better serve parents, but it appears that the program is hindered by several factors:
- The rule itself is vague with regard to when and how appointment of pro bono counsel should be made.
- The program relies on a pool of eligible volunteer attorneys, which is not managed by the court or any other entity.
- It’s not clear that judges are aware of Rule 13.8(b) and their opportunity to use it, nor that parents themselves are aware of the program and its purposes.
Moreover, Rule 13.8(b) does not make clear the process for determining whether someone is financially incapable of obtaining counsel. It remains unclear what income is “sufficient” to obtain counsel, as well as whether a judge can independently schedule a hearing examining ability to pay if a parent has not filed a motion with the court asking for the appointment. Rule 13.8(b) is a local court rule, so judges may not have encountered it in their practice before becoming a judge assigned to the Domestic Relations Division. Together, ambiguities in the rule plus unfamiliarity with the rule mean it is not employed to best effect by judges in the division.
For an attorney to be eligible for appointment under Rule 13.8(b), they must have had at least two years of experience in domestic relations cases and have attended an initial training seminar. The rule requires that local bar associations vet attorneys for appointment and maintain lists of attorneys available for appointment. (Chicago Appleseed has not been able to confirm that any bar association is doing so at present.) Attorneys who are appointed under Rule 13.8(b) may be paid from public funds at a rate set by local rules, but no less than $150 an hour, according to Illinois Supreme Court Rule 299.
Clearly, a procedure for appointing counsel is insufficient without a meaningful program to recruit, train, and retain attorneys available for appointment. Using volunteers to manage a long-term or permanent program can be unreliable.
Chicago Appleseed is working to understand better the barriers to appointment, as well as the best options for maintaining a pool of qualified attorneys available for appointment. Access to justice depends not simply on access to the court, but also meaningful access to representation, especially in cases like these, where a person may be jailed or subject to other restrictions of their liberty for civil contempt of court. We hope to advise the court on revisions to Rule 13.8(b), which will make the process easier for the court, as well as raise the profile of the rule for parents and attorneys available for appointment.