The New Jersey Supreme Court (the state’s highest 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 hearings that they have a right to be represented by a lawyer. This article will explain that right as well as how child support orders are enforced.

How is a child support order enforced?

When the parents of children live apart, the court often orders the parent without custody (the non-custodial parent) to pay child support to the parent who lives with and cares for the child (the custodial parent). Payments must be made on a regular basis, such as every two weeks or every month. When a non-custodial parent fails to pay child support for two weeks, or when the unpaid amount equals the amount that should have been paid for two weeks, the Probation Division of the Superior Court (Probation) is required by law to take action to help the custodial parent get the child support owed.

To do this, Probation first files with the court a statement of facts that describes how the non-custodial parent is disobeying the court’s order for child support. Next, Probation chooses to file either a complaint for contempt or an application called a motion in aid of litigant’s rights, or both.

Probation rarely files a complaint for contempt against a non-custodial parent who owes outstanding child support. More commonly, Probation or the custodial parent will file a motion in aid of litigant’s rights in order to force the non-custodial parent to pay the child support owed.

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 representation.

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 alternatives are:

• 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 is owed.
• 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 support collections.