Civil Contempt and the Indigent Child Support Obligor: the Silent Return of Debtor’s Prison

Each day in the United States thousands of persons are jailed on charges arising from failure to pay court-ordered child support. Some of them have been convicted of contempt of court, a crime based on willful defiance of the court order. However, most are incarcerated pursuant to the court’s civil authority to jail contemnors as a means of coercing compliance with the order. In the case of the civil contemnor, confinement generally occurs without the procedural protections that are available as a matter of right in criminal proceedings. A finding of ability to pay the ordered support is a necessary precedent to both a finding of contempt and the penalty of coercive incarceration. Otherwise, the incarceration can only be characterized as punishment for being poor. Yet many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay. A variety of systemic and judicial flaws have coalesced to create a fertile environment for unjustified incarcerations. Prominent among these are serious deficiencies in current civil contempt practice. Restoration of equity and due process to this area will require an array of adjustments in federal and state law, agency practice, and judicial process.