Deadbeat Parents Entitled to Hearing Within 72 Hours

AOC issues instruction for Family Part judges in all vicinages

By Mary P. Gallagher
New Jersey Law Journal

Family court judges must hold hearings within 72 hours for parents jailed for ignoring court dates on charges of failure to pay child support.

Administrative Director of the Courts Richard Williams issued the mandate last Wednesday in a memorandum to all assignment judges, the day after a Mercer County judge in a putative class-action suit called failure to provide expeditious review "a substantial danger to procedural due process."

Williams, reminding that "an ability to pay determination must be made contemporaneously with any decision to incarcerate a child support obligor," told assignment judges to "instruct your Family Division managers and judges that hearings for incarcerated child support obligors should be conducted within a reasonable amount of time, at least within 72 hours of the incarceration of the child support obligor."

Williams said he would ask the Conference of Family Presiding Judges and the Conference of Chief Probation Officers to "consider establishing a best practice for state-wide implementation on this issue."

Williams did not refer to the Mercer County suit explicitly, saying only that "it has come to my attention that in some vicinages a child support obligor who is incarcerated for nonpayment of child support or on a failure to appear warrant may potentially wait for up to two weeks" before seeing a judge.

The suit, Leonard v. Blackburn, L-3761-01, is on behalf of child support obligors allegedly jailed without the requisite judicial finding that they were able to pay the amount set by the court to secure their release. The named defendants are Family Part judges in Mercer, Monmouth and Ocean counties who allegedly set unjustified amounts or failed to review them properly.

In her ruling last Tuesday, Mercer County Assignment Judge Linda Feinberg directed judges in the three counties to provide an initial review within 72 hours of arrest and follow-up reviews every two weeks. She also denied class-action certification.

At issue in Leonard are the timing and adequacy of "pay or stay" hearings. Parents who are delinquent in paying support and who have disregarded court summonses are arrested and brought before a judge, who gives them the option of paying a purge amount to satisfy some of the arrears or staying in jail until they agree to do so.

The idea is to coerce compliance from delinquent parents who have the money but refuse to pay, but the plaintiffs claim that parents sometimes sit in jail for weeks or months before seeing a judge and that even when they do, the hearings are often cursory, without any meaningful inquiry into whether they can come up with the release amount.

In her opinion, which she is submitting for publication, Feinberg discussed at length the standards that apply to the hearings, but she denied relief on the issue of whether judges were improperly setting purge amounts that were not based on ability to pay.

She did not explain the denial, but her remarks during Jan. 11 arguments offer some insight. Though she acknowledged concern about "the level of inquiry by the judges," she said she was not an appellate judge and did not believe she had authority "to look at the transcripts of child support hearings and pass on whether a particular judge handled that hearing properly."

The 72-hour deadline for initial hearings should make a significant difference in Mercer County where child-support enforcement hearings are held only twice a month, on the second and fourth Thursdays. Feinberg found it unacceptable that a parent picked up on one of those days might have to wait as long as two weeks to get before a judge.

The impact of the 72-hour requirement elsewhere is less certain. Monmouth already provides hearings on the next business day, and Ocean holds them every Tuesday, Wednesday and Thursday.

The plaintiffs' lawyer, David Perry Davis, says many judges across the state have recently changed how they conduct the pay-or-stay hearings and now make a searching inquiry into ability to pay.

Where an obligor cannot pay, judges impose strict job-search and reporting requirements rather than incarceration, says Davis, a solo practitioner in Princeton.

Mercer, Monmouth, Ocean and Essex, however, were exceptions to this recent improvement. Davis says he decided to file the case after he visited a client jailed for nonpayment at the Mercer County Correctional Center on Thanksgiving weekend and learned of 12 others jailed because they were unable to pay the release amount. They could not afford to hire him, so he took them on as a class.

Davis had argued for judicial review within 12 hours, the same time period for setting bail after an arrest on criminal charges under court rule.

Davis finds Feinberg's 72 hours for initial hearings and two weeks for subsequent hearings an adequate standard, but he contends that some courts have not been following existing law.

Despite Mercer's alternate Thursday hearing schedule, plaintiff Craig Williams spent 93 days in jail on an $8,000 purge amount without a hearing last fall before being released in December, says Davis.

According to the complaint, the other 11 adult plaintiffs allegedly spent from 11 to 65 days in jail on purge amounts ranging from $500 to $8,000.

When Leonard was filed, 10 of the plaintiffs were incarcerated in Mercer and two had spent a few weeks in Ocean and Monmouth. By Jan. 11, the date of oral argument, all had been released after a hearing or through an emergent appeal.

Davis takes issue with Feinberg's denial of certification to the two putative classes - the incarcerated adults and their children. The children are allegedly deprived of their right to the parent's love, care and companionship by the improper incarceration. The plaintiffs also charge that keeping the parents in jail defeats the purpose of securing financial support because it prevents them from working or seeking employment. The complaint names five children of the adult plaintiffs as representatives of the class of children of the jailed parents.

Feinberg found the requirements for class certification lacking. Commonality and typicality were defeated by the fact-sensitive nature of each parent's situation, she stated. As for numerosity, Feinberg found that only five out of the 126 judges assigned to Family Part were named and transcripts were submitted from only 10 hearings out of the more than 50,000 child-support enforcement hearings that take place every year.

Davis argued to Feinberg that he had prevailed in all of eight emergent appeals he filed during the past 18 months to challenge the incarcerations and that this was sufficient to establish a pattern of unconstitutional conduct worthy of a class action. He also contended that under Third U.S. Circuit Court of Appeals precedent, a class of one can suffice on a civil rights claim.

Leonard is Davis' second attempted class-action suit challenging the way the New Jersey court system deals with child-support enforcement.

The first, Pasqua v. Council, 00-CV-2418, is a federal action under 42 U.S.C. 1983 alleging that indigent parents are entitled to counsel before they can be locked up for nonpayment. Last March 9, U.S. District Judge Garrett Brown abstained from deciding the state's motion to dismiss, citing Younger v. Harris, 401 U.S. 37 (1971), which allows federal courts to decline to exercise jurisdiction where it might conflict with a pending state court proceeding. Brown found there was a pending state court proceeding based on the Uniform Interstate Family Support Act, under which a court that has issued an order for child support has exclusive continuing jurisdiction over that order. Brown also relied on the possibility of continued state enforcement efforts.

Brown's ruling is on appeal. Briefing in Pasqua was completed in November but no argument date has been set.

Deputy Attorney General Barbara Stoop, who represents the state defendants in Pasqua as well as in Leonard, declines to comment on either case.

Date Received: January 25, 2002