Right to counsel

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Litigation, Civil Contempt in Family Court

Originally, the Michigan Supreme Court held in Sword v. Sword, 249 N.W.2d 88 (Mich. 1976) that the analysis of a right to counsel in civil contempt proceedings. However, in Mead v. Batchlor, 460 N.W.2d 493 (Mich. 1990), the court, using the Mathews analysis, held the due process clause of the Fourteenth Amendment precludes incarceration of an indigent defendant in a contempt proceeding for nonpayment of child support if the indigent has been denied assistance of counsel.


The court pointed to the complexity of the child support contempt proceedings as greatly increasing the risk of error and concluded that, given the liberty interest at stake, "an indigent needs an attorney to advise him about the meaning and requirements of applicable laws and to raise proofs and defenses in his behalf."  The court also frequently mentioned the emphasis in Lassiter v. Dep't of Soc. Servs., 101 S.Ct. 2153 (1981), on the risk of incarceration as highly relevant to the analysis.


Mead may partially survive the U.S. Supreme Court's decision in Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not "especially complex"), with respect to cases outside Turner's purview. In Mead, the Cass County Friend of the Court petitioned for the contempt order, and while it is not clear that the support would be paid to the state, Turner was wary of indigent defendants appearing pro se against a government representative. The Mead court itself noted that "since the state's representative at such a hearing is well versed in the laws relating to child support, fundamental fairness requires that the indigent who faces incarceration should also have qualified representation." Mead, 460 N.W.2d at 503.

Appointment of Counsel: categorical Qualified: yes