On Friday, April 11 attorney David Perry Davis submitted a letter
to Supreme Court Justice Barry Albin addressing 'widespread non-compliance' by the NJ Courts of a 2006 NJ Supreme Court decision Pasqua V. Council that found that the New Jersey Constitution guaranteed the right to an attorney for indigent parents facing incarceration for child support arrears.
The New Jersey Supreme Court ruled in 2006 that the courts must provide attorneys to indigent parents facing incarceration at child support enforcement hearings but refused to order the Public Defender’s office to bear the burden and expense for civil litigation. The Supreme Court ordered that until the state found a way to provide attorneys incarceration could not be used as an option.
In the eight years since the Supreme Court’s decision only Bergen County has provided an attorney for indigent parents at child support enforcement hearings yet statewide parents have been jailed without representation as a regular course of action
Today the New Jersey Administrative Office of the Courts issued a memorandum addressing the issue.
According to the AOC memorandum, "The revisions to the form are due to a significant increase in the number of emergent appeals to both the Appellate Division and the Supreme Court challenging the orders of incarceration for nonpayment of child support obligations. The revised order is intended to ensure that the trial court has included in the order for enforcement of litigant rights specific factual findings"
From November 2013 through just weeks ago the Bergen Dispatch made available fax, copy, computer and scanning services that allowed over two dozen parents in Bergen and Passaic Counties the ability to file emergent appeals arguing that their incarceration was done without due process and without a finding of fact.
Bergen County parents face judges in a makeshift courtroom inside the Bergen County Jail
"As a result of the holding in Pasqua, at child support enforcement hearings, trial courts must advise all parents charged with violating a court order of their right to counsel."
"In addition, the Court advised that all parents facing potential incarceration must be advised of their right to counsel if they are indigent and, upon verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders" -- the memorandum states.
Parents brought before judges in New Jersey have been held without consideration of unemploymet or underemployment and reqired to either make payments of thousands of dollars or face jail.
“This is not a hearing” a source involved in Bergen County’s child support enforcement told the Bergen Dispatch, “this is a sentencing, you were already found guilty when you walked in the court room. Now you need to make a payment or you are going to jail."
One unemployed parent, recently released by the NJ Supreme Court
, spent more than a year in the Bergen County Jail ordered to pay $7.500 to be released.
Parents held for support arrears are brought before a judge every two weeks and simply ordered back to jail if they have not paid.
Addressing this the AOC memorandum directs the court to make and include a factual finding before incarceration.
"the court must conduct a hearing to determine whether the obligor has the ability to comply with the existing child support obligation and must make and include in the order specific factual findings in that regard" the memorandum reads.
According to the memorandum on April 7, 2014, Family Division judges received mandatory training regarding Pasqua
and Directive #15-.08, including the proposed revised ELR. order.
The Probation Serviices Division and Family Practice Division will be conducting joint training for court staff on the procedures to ensure compliance with Directlve #15-08 and this memorandum. AOC staff will coordinate the training with the vicinages.
"As noted at the outset, the purpose for making these revisions to the form ELR Order is to ensure that the court is in all cases making specific factual findings as to both the indigence determination and the ability to comply, thereby creating a more complete record if the case is appealed."
David Perry Davis had the following comments in an email concerning the new directive.
"Wow. I received a call from the AOC at 2:45 saying my letter to Justice Albin had been received and that a new directive was being issued today. Directive #02-14 attached. (No more references to #15-08)."
"I'm still reading it, but thus far it is weak (too weak) on the issue of the mandatory finding that an obligor has the current ability to pay any release amount established, but is refusing to do so."
The Bergen Dispatch spoke to David Perry Davis this evening and he was pleased that the Administrative Office of the Courts had addressed the issue however he was disappointed that they did not go far enough. “This goes back to the founding of our country, we don’t have debtor’s prison in America” Davis said.
In a letter obtained by the Bergen Dispatch Glenn A Grant, Acting Administrative Director of the Courts addressed Davis' letter:
"you suggested “that there has been widespread non-compliance with the [Pasqua] mandate that no litigant be coercively incarcerated unless a finding is made, based on evidence in the record, that there is a current ability to pay any release amount established."
"The Judiciary was aware of the need for clarification and at its April 8 administrative conference the Supreme Court approved a detailed set of procedures and revisions to the form order regarding ability to pay hearings.. Those procedures and the revised form order were promulgated on April 14 in Directive #02-14, which expressly modifies Directive #15-08. Directive #02-14 sets forth the steps for the court to follow when conducting a child support enforcement hearing, including: (a) the court's determination of the obligor's indigence, and (b) its separate determination of the obligor's ability to comply with the previously ordered child support obligation, consistent with Pasqua."
"The Family judges received training on this on April 7. Court staff will be trained on the Directive #02-14 procedures shortly to ensure compliance with Directives #02-14 and #15-08."
"Thank you for raising these concerns in an administrative setting. I trust that Directive #02-14 and this letter demonstrate the Judiciary's responsiveness to those concerns."
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