Anne Pasqua, et al v. Hon. Gerald J. Council, et al
186 N.J. 127 (2006) (March 2006)
Pasqua v. Council successfully challenged New Jersey's unconstitutional practice of failing to appoint attorneys for indigent child support obligors at enforcement hearings where they face incarceration.
Use of Warrants and Incarceration in the Enforcement of Child Support Orders
Directive #15-08 November 17, 2008 [Supersedes Directive #18-06]
What Can You Do If You Or Someone You Know Is Jailed For Non Payment Of Child Support?
Is a non-custodial parent entitled to an opportunity to explain why he
or she has not paid child support?
Yes. Before a non-custodial parent can be sent to jail for nonpayment of child
support, the law requires that he or she be given notice of a hearing about his
or her ability to pay the child support that is due. A hearing officer listens
to testimony and considers evidence to determine if the non-custodial parent has
the ability to pay the required child support. If the hearing officer finds that
the non-custodial parent does not have the ability to pay the
outstanding child support, he or she may modify the child support order.
However, if the hearing officer finds that the non-custodial parent does
have the ability to pay child support and is willfully refusing to do
so, the hearing officer will make a recommendation to the court about how the
order should be enforced. Recommendations include suggesting:
- That the court immediately issue a bench warrant for arrest, or
- That the court issue an order placing the case in bench warrant status. (Placing
the case in bench warrant status means that, if in the future the
non-custodial parent is at least 14 days behind making child support payments,
either Probation or the custodial parent may ask the court for a bench warrant
without giving notice to the non-custodial parent.)
Do non-custodial parents facing jail for non-payment of child support
have a right to a lawyer?
Yes. As mentioned above, the New Jersey Supreme Court ruled in a recent case
that all non-custodial parents charged with violating a court order and facing
the possibility of going to jail for nonpayment of child support must be told at
the enforcement hearing that they have a right to be represented by a lawyer.
Low-income non-custodial parents facing the possibility of going to
jail must be told that they have a right to have a lawyer appointed to
represent them. The court may ask for proof of income. If the non-custodial
parent is able to show that he or she is indigent, the court must
provide an appointed lawyer.
What happens if the court does not inform the non-custodial parent about
the right to a lawyer or fails to provide a lawyer?
If the court does not inform the non-custodial parent about the right to an
attorney at an enforcement hearing or fails to provide a lawyer for a low-income
non-custodial parent, the court cannot use the threat of jail to force the
person to comply with the child support order.
There is currently no system in place to provide lawyers for low-income parents
facing jail time for failure to pay child support. Because the right to a lawyer
exists without the ability to provide for a lawyer, the family court will not be
able to use jail time as a way to enforce child support orders. This means that
when a motion to enforce a child support order is filed against a non-custodial
parent who is able to provide proof to the court that he or she is indigent, the
court will not be permitted to grant an arrest warrant against this parent,
unless there is a system to appoint an attorney for this person.
What if a bench warrant has already been issued?
If a bench warrant has already been issued for the arrest of a non-custodial
parent who is able to prove that he or she is indigent, the court must either
provide that parent with an appointed lawyer or release him or her from jail.
During the time that the recently decided Supreme Court case was making its way
through the courts, indigent parents who were in jail requested appointed
lawyers and were released after the court failed to provide them with
Are there other ways to enforce child support orders, besides jail?
There are other ways that the court can enforce child support orders, in place
of sending the non-paying parent to jail. These alternatives to jail do not
create the right to a lawyer at the enforcement hearing. Among these
- Taking money directly out of the paycheck of the non-custodial parent. This
procedure, known as “income withholding,” is almost always ordered in a child
support case except in situations where the non-custodial parent does not
receive a paycheck (for example, the person is self-employed).
- Forcing the sale of real property (a house or land or other building) and using
the proceeds from the sale of that real property to pay the child support that
- Forcing a non-custodial parent to pay outstanding child support by requiring
that the child support judgment be paid out of the net proceeds of any lawsuit
award or settlement.
- Denying, revoking, or suspending recreational licenses (for example, licenses to
fish or hunt), occupational licenses (for example, licenses to cut hair or
provide physical therapy or practice law), or driver’s licenses.
Until the state has a system for appointing lawyers to non-custodial parents who
face incarceration for failing to pay child support, Probation or the custodial
parent may have no choice but to ask for these alternative enforcement measures.
In the long run, these alternatives are likely to benefit both parents, because
they have already proven to be more effective than jail in increasing child