Facing Jail for Failing to Pay Child Support in Massachusetts – You May Be Entitled to a Court-Appointed Attorney

| Aug 5, 2020 | Child Support |

The Massachusetts Supreme Judicial Court recently heard arguments in a case that could create a new right to a court-appointed attorney, paid for by thestate, for people at risk of jail time for failure to pay child support.

Today, indigent defendants in criminal cases are entitled to a public defender, as are litigants in DCF-related cases and people facing civil commitment for mental health or substance abuse matters or in guardianship cases. An effort is afoot to expand that right to tenants and landlords in eviction cases. Some assistance is also available to poor civil litigants through legal aid organizations.

In this case, Department of Revenue vs. Joshua Grullon, Grullon argued that he should have been entitled to a court-appointed attorney because he faced jail time.

General counsel of the Massachusetts Bar Association filed an amicus brief in support of Grullon, and said the goal is to “level the playing field” between the parent who owes child support and the Department of Revenue, which often represents the custodial parent.

You’re dealing with laypeople going into an imposing situation in a courtroom with a judge going against a highly trained attorney for the Department of Revenue. People don’t feel comfortable, don’t know how to assert their rights in that situation.

It is recognized whenever an indigent individual is facing any kind of imprisonment or loss of liberty, they should be entitled to counsel before they risk that liberty.

Grullon and his wife divorced in 2017, and Grullon was ordered to pay $123 a week in child support. He fell behind by more than $5,600, and faced a hearing in Essex County Probate and Family Court. Grullon obtained limited help from Veterans Legal Services but did not have a lawyer at the hearing.

The Department of Revenue asked that Grullon be incarcerated. After an eight-minute hearing, a judge ordered him jailed for 10 days unless he could pay $500. Grullon served the 10 days in jail.

In addition to challenging other aspects of the judge’s order, Grullon is arguing that he should have been eligible for a court-appointed attorney. “Both the Massachusetts Constitution and the Constitution of the United States protect an indigent defendant’s right to due process before the government may incarcerate him,” Grullon’s attorneys wrote in a court brief. “Here, in Mr. Grullon’s civil contempt hearing for failure to pay child support, he faced likely imprisonment, and therefore the Probate Court should have appointed counsel to represent him.”

The Department of Revenue argues that courts should not require appointed counsel for indigent defendants in child support cases. The department wrote that the question of a parent’s ability to pay can, in most cases, be decided without a lawyer. Rather, courts can institute other safeguards to protect the parent from incarceration, such as determining and taking into account the parent’s ability to pay or allowing for structured repayment.

Under state law, a parent can be jailed for refusing to pay child support, but only if a judge determines that the parent can actually afford to pay the debt.

“Civil contempt proceedings based on nonpayment of child support are typically legally and factually straightforward,” attorneys for the Department of Revenue wrote. “While significant liberty interests may be implicated in civil contempt proceedings, those interests can be adequately protected by substitute procedural safeguards that do not require recognizing an automatic right to counsel.”

The department said creating a right to counsel could be unfair to the parent to whom child support is owed.

The Massachusetts Bar Association and the Boston Bar Association both weighed in on behalf of Grullon, arguing that indigent defendants should have a right to counsel in civil contempt cases for failure to pay child support “in which there is a realistic risk of loss of personal liberty by imprisonment for debt.”

“There is no substitute for having competent attorneys on both sides of a case to increase the probability of a correct decision and to avoid the slightest appearance that particular litigants or attorneys obtain preferential treatment or wield undue influence over the outcome of court proceedings,” attorneys for the bar associations wrote.

The attorneys’ groups say calculating someone’s ability to pay can be complex, and the average indigent defendant is no match for Department of Revenue attorneys.

“Court ordered imprisonment for a debt one cannot pay, at the request of government attorneys in a judicial proceeding at which an indigent defendant had no legal counsel, violates the due process of law guaranteed by our Massachusetts Constitution,” the bar associations wrote.

The Committee for Public Counsel Services, which would be responsible for providing the attorneys, wrote a letter to the SJC supporting a right to counsel. CPCS wrote that judges must strike a difficult balance in determining that the client is indigent, but also that the client can pay the child support judgement. Without an attorney, someone who owes money may be unable to prove that they cannot pay child support, and therefore may be improperly incarcerated.

None of the briefs directly address the additional cost to the public defender’s office and therefore to taxpayers of providing these attorneys.

The bar associations’ brief says only a small percentage of child support cases result in incarceration. The Massachusetts Bar Association was unable to estimate how many cases would require an attorney and how much that would cost.

Should you be involved in a contempt action for failure to pay child support, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.

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