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Ability to Pay in Child Support Contempt Hearings

With respect to child support, the rule in New Mexico is that both parents have a duty to support their children. The amount of the monthly child support is determined by the New Mexico Child Support Guidelines, which are meant to be uniformly enforced across the state, so the support should be the same whether you live in Albuquerque or Las Cruces. The amount of support is also the same whether it is awarded as part of a divorce or a paternity action and continues until a child turns eighteen, or until the age of nineteen if the child is still in high school. Unfortunately, given the current state of the economy, many parents are finding themselves unable to pay their court-ordered child support.

While the Courts understand that many parents have lost jobs during the past few years, the New Mexico Courts take parents‘ responsibility to support their children very seriously. This means that even if a parent has a reason for not paying child support, there can be severe punishment when they don‘t. If the Child Support Enforcement Division (CSED) is involved in a case, they have the ability to revoke a parent‘s driver‘s license or professional license if that parent doesn‘t pay support. CSED can also prevent a delinquent parent from getting a passport and can freeze their bank accounts and garnish their wages. In addition to the punishment delivered by CSED, the Courts can also hold a parent in contempt of court for failing to pay child support. Being found in contempt can be result in jail time and/or monetary sanctions. However, a recent United States Supreme Court case added some requirements to the contempt process that provides some relief for parents who are unable to pay support.

In Turner v. Rogers, a father was held in contempt for failure to pay close to six thousand dollars in court-ordered child support. After a hearing at which the father admitted that he hadn‘t paid the child support, he was held in contempt and sentenced to one year in jail. The Supreme Court held that parties generally can be held in contempt, and jailed, as part of a civil proceeding and that they are not entitled to counsel as part of such proceedings. However, that contempt proceeding must have other procedural safeguards in place that protect the delinquent parent‘s right to due process under the Fourteenth Amendment to the United States Constitution. One of the primary safeguards ordered by the Supreme Court was that a finding of contempt in the child support context requires an express finding that the delinquent parent has the ability to pay the child support. Thus, in a child support proceeding, a parent who is delinquent on his or her child support obligation cannot be held in contempt if that parent clearly establishes that they do not have the ability to pay the court-ordered support.

Of course, the ruling in Turner doesn‘t mean that parents will not be required to pay child support just because they show the Court that they don‘t have the ability to pay. The Courts will still have the power to impute income to unemployed, or under-employed, parents if the circumstances are right. And even if a parent is not held in contempt for failure to pay support, they will likely continue to accrue arrearages, or back support, that will need to be paid at some point. But the new ruling certainly provides additional protections for parents who are delinquent on child support obligations, especially those who are victims of the recent economic crises.

Though the Turner case provides some protection to delinquent parents, the consequences of non-payment of child support can still be quite harsh. The fact is that a delinquent parent can be held in contempt if the court finds the parent has the ability to pay and has not. Attending one of these hearing unprepared is highly inadvisable. Anyone faced with a child support delinquency, whether they owe support or the support is owed to them, should consult a family law attorney as soon as possible so that they can understand their rights and responsibilities under all of the applicable laws, including the ruling in Turner.

Collins & Collins, P.C.
Albuquerque Attorneys

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