Right to Counsel Not Always Guaranteed in Civil Contempt CasesSunday, 03 April 2011 11:33
A parent who fails to pay child support as ordered by a court in Ohio faces penalties both civil and criminal in nature. The penalties and procedures for these cases are different, though, especially when it comes to the issues of seeking a court-appointed attorney for indigent defendants.
Most people are aware of the right to an attorney in criminal cases. Advising a defendant of his right to counsel is part of the familiar Miranda warnings required to be read to defendants before interrogation upon their arrest. A criminal charge for non-support of dependents, which ranges in penalty from a first-degree misdemeanor (maximum of 180 days in jail) to a fourth-degree felony (maximum of 18 months in prison) carries this right to counsel. Upon the showing that the defendant is indigent, and cannot afford to hire an attorney, the court must appoint legal representation.
Failing to pay support pursuant to a court order also carries the potential of a civil contempt of court charge – i.e., failing to comply with an order of the court. This is not a criminal charge, but it does carry the possibility of up to 30 days in jail for a first offense, 60 days in jail for a second offense and 90 days in jail for third or subsequent offenses. Despite the possibility that one charged with civil contempt could ultimately be deprived of his civil liberty and incarcerated as in a criminal matter, the right to counsel in civil contempt cases is not automatic and those charged must be aware of this or they can forfeit that right.
O.R.C. §2705.031(C)(2) requires the summons served on the accused at the time the civil contempt proceedings are filed include “notice that the accused has a right to counsel, and that if indigent, the accused must apply for a public defender or court appointed counsel within three business days after receipt of the summons.” O.R.C. §2705.031(C)(3) states that the court “may refuse to grant a continuance at the time of the hearing for the purpose of the accused obtaining counsel, if the accused fails to make a good faith effort to retain counsel or obtain a public defender.”
The Summons in Contempt issued by the Butler County Domestic Relations Court appears to broaden the right to counsel, as it informs the accused of the obligation to request counsel “at your first appearance before the Court” rather than within three business days of receipt of the summons.
Jurisdictions in Ohio are split on whether there is an absolute right to counsel in civil contempt matters (with some District Courts of Appeal holding that a 1981 Supreme Court case is controlling, and others not agreeing). But, locally the Twelfth District Court of Appeals in Middletown (serving 8 counties including Butler, Warren, Clermont, and Preble) has affirmed the right to counsel is not automatic under this statute as recently as September 2010.
On March 23, 2011, this issue was argued before the United States Supreme Court in relation to a South Carolina case. The decision is pending, but the outcome could affect the law in Ohio, South Carolina, Florida, Maine and New Hampshire – all of which presently do not automatically appoint counsel in civil contempt cases. Until the Supreme Court rules, however, those charged with civil contempt for failing to pay child support must be careful to exercise due diligence to preserve their right to counsel.
As always, if you are charged in such a case you should seek advice from an attorney before proceeding on your own. The law office of Daniel W. Gehr can help you defend your rights in cases such as this. Don’t wait to call until it is too late to ensure you are protected.
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