Volume 25

Turner in the Trenches: A Study of How Turner v. Rogers Affected Child Support Contempt Proceedings

by Elizabeth G. Patterson

On April 4, 2015, Walter Scott was shot to death while running from a policeman in North Charleston, South Carolina.1 It was one of a series of police shootings of black men that grabbed the nation’s attention in the spring and summer of 2015.2 In Walter Scott’s case, the incident focused attention not only on law enforcement officers’ use of excessive force, but also on a second, less visible issue that clouds the lives of many low-income men and some women3—the difficulty of staying current with their child support obligations and the potential jail time if they fail.

Many persons wondered why Scott ran from a police officer who pulled him over for something as minor as a broken tail light. Family members opined that he was probably afraid of being jailed again for delinquent child support payments.4 At the time of the shooting, Scott was the subject of an outstanding order to appear before a family court judge and explain his failure to make the mandated payments.5 If found to be willfully noncompliant, he could have been held in contempt of court and incarcerated, as happens to hundreds of noncustodial fathers in South Carolina, many of whom are low-income and without permanent employment.6 Scott’s flight may have been motivated by a fear that he would be jailed even if his delinquency were merely a reflection of a lack of resources.Many observers believe that such a fear would be well justified, though until recently there has been little evidence one way or the other.

Beginning in 2009, researchers at the University of South Carolina (USC) School of Law conducted a series of inquiries aimed at examining the extent to which indigent child support obligors are being jailed on account of their inability to pay court-ordered support. During this same period the U.S. Supreme Court heard and decided the case of Turner v. Rogers,7 a South Carolina case concerning the procedural rights of child support obligors in civil contempt proceedings that could result in incarceration.

Prior to the decision in Turner, the researchers conducted a study in which 326 South Carolina child support contempt hearings were observed to assess the quality of the decision-making on the “ability to pay” issue. The study, presented in an amicus curiae brief filed in Turner,8 indicated that the practices and procedures used in those hearings resulted in incarceration of large numbers of child support obligors who lacked the ability to make their child support payments and who would not be able to pay the purge amounts necessary to secure their release. The following year the Supreme Court held in Turner that the proceedings in Mr. Turner’s contempt hearing, which were in most respects typical of the hearings observed in the study, violated the obligor’s right to due process of law.9

In the wake of Turner, courts and child support agencies throughout the country modified their child support contempt procedures, and judges became more sensitized to the constitutional implications of their handling of these cases. Because of their earlier court observation study, the USC researchers saw a unique opportunity to assess the effects of the Turner opinion on the processes and outcomes of child support contempt proceedings at the local level. Taking advantage of this opportunity, they conducted a second court observation study in 2013, two years after the Turner decision, which replicated the earlier study both in methodology and location. The study was partially repeated once more in 2016 to confirm that practice remained consistent with the 2013 observations.10

This article will examine and compare the findings of these studies to identify direct and indirect effects of the Turner decision on child support contempt proceedings in South Carolina. It will also offer insight regarding the mechanisms by which Supreme Court mandates become incorporated into practice. Initially, Part II will explain the legal context of the hearings that were observed, with particular attention to the mandates of the Supreme Court’s decision in Turner v. Rogers, which was decided between the two sets of hearings. Part III will describe findings of the study concerning procedural matters, such as duration of hearings, representation by counsel, and roles of the judge, the child support agency, and the custodial parent. Part IV presents findings related to the outcomes of the hearings. It will address the central questions of whether child support obligors who lacked the ability to pay were nonetheless being found in contempt and incarcerated, and whether the Turner ruling affected these outcomes. Part V examines the ways and means by which changes in judicial practice were brought about in the wake of Turner, primarily the federal and state administrative response to the decision, and changes in judicial awareness of what is at stake at child support contempt proceedings. Part VI takes this analysis one step further by assessing the likelihood that new regulations issued by the federal Office of Child Support Enforcement (OCSE) in 2017 will further alter the conduct or outcome of these hearings.


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1. Michael S. Schmidt & Matt Apuzzo, South Carolina Officer Is Charged with Murder of Walter Scott, N.Y. TIMES (Apr. 7, 2015), www.nytimes.com/2015/04/08/us/south-carolina-officer-is-charged-with-murder-in-black-mans-death.html?_r=0.

2. See, e.g., Sandhya Sonashekhar et al., Black and Unarmed, WASH. POST, (Aug. 8, 2015), http:// www.washingtonpost.com/sf/national/2015/08/08/black-and-unarmed/.

3. Since the vast majority of child support obligors are men, masculine pronouns will be used when referring to obligors or contemnors.

4. Schmidt & Apuzzo, supra note 1. Another law enforcement shooting of a fleeing child support obligor is described in Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011).

5. Lauren Sausser, Walter Scott Dogged by System that “Criminalizes” Debt, POST & COURIER (Apr. 9, 2015), http://www.postandcourier.com/news/walter-scott-dogged-by-system-that-criminalizes-debt/ article_e211c5c9-c6ba-5ded-a92e-a2fc363d179c.html.

6. Id.

7. Turner v. Rogers, 564 U.S. 431 (2011).

8. Brief of Elizabeth G. Patterson et. al as Amici Curiae in Support of Petitioner, Turner v. Rogers, 564 U.S. 431 (2011) (No. 10-10), 2011 WL 141223, at *5–22.

9. Turner, 564 U.S. at 449.

10. In 2016, hearings in only five of the original thirteen counties were observed.