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No lawyers for poor deadbeat parents

Appeals panel ruling could affect state directive not to jail those who can’t afford counsel
Saturday, September 11, 2004
BY ROBERT SCHWANEBERG
Star-Ledger Staff

NOTE: This article was published several days before the Supreme Court of New Jersey stayed the absurd appellate decision discussed herein.

Parents facing jail for failing to pay child support have no constitutional right to a court-appointed lawyer if they cannot afford their own, a state appeals court ruled yesterday.

It was unclear, however, what effect the ruling would have on a court directive adopted earlier this year that prohibits jailing parents who are too poor to hire a lawyer. As of yesterday, that directive remained in effect, according to Winnie Comfort, a spokeswoman for the courts.

Yesterday’s ruling allows, but does not require, the repeal of that directive. Whether it will remain in effect “is being considered,” Comfort said.

The directive was adopted to comply with last year’s ruling by Mercer County Assignment Judge Linda Feinberg that indigent persons facing jail for failing to pay child support do have a constitutional right to a court-appointed lawyer.

As a practical matter, there is no money to hire lawyers for such people, so the Administrative Office of the Courts issued a directive that they could not be jailed. That effectively removed the threat of incarceration for parents who have some money to pay child support, but not enough to afford their own lawyer.

“Sometimes a judge will say ‘Can you pay $10 a week?’ There are people who can’t afford a lawyer but can pay $10 a week,” said Assistant Attorney General Patrick DeAlmeida, who appealed Feinberg’s ruling. When such parents were locked up, they were released as soon as they paid and often found the money as soon as jail was threatened, DeAlmeida said.

Yesterday, a three-judge appeals court agreed with DeAlmeida that deadbeat parents have no constitutional right to a lawyer, adding that Feinberg was wrong to ignore a 2002 appeals court ruling that reached the same conclusion.

“It’s the correct decision,” DeAlmeida said. He said inquiries by judges into whether a person can afford to pay child support are so straightforward that “counsel is really not necessary.”

David Perry Davis, the Princeton lawyer who had won the case before Feinberg, said yesterday’s ruling “makes no sense.” He said the appeals court ignored Feinberg’s rationale, which he called “a completely separate theory of law” from the one rejected in the 2002 case.

Davis said 46 other states provide lawyers to poor people facing jail for failing to pay child support.

The appeals court said court-appointed lawyers are not needed so long as judges thoroughly inquire into a parent’s ability to pay, but Davis said the few judges who conduct such hearings properly “are the exception.”

The case, which was argued in June, was decided by Appellate Division Judges Harvey Weissbard, Barbara Byrd Wecker and Philip Carchman. Comfort said Carchman ruled before he became acting administrative director of the courts on Sept. 1 and will not take part in any administrative decisions on whether to repeal the rule against jailing indigent deadbeat parents.