No jail for some parents after child support ruling

Saturday, September 27, 2003
By LINDA STEIN

A homeless, mentally ill Hamilton woman who owes $13,000 in back child support will no longer have to worry about being thrown in jail.

Anne Pasqua, 37, who spent two weeks in jail over the debt, is the lead plaintiff in a lawsuit filed in Superior Court demanding that lawyers be appointed to represent indigent deadbeat parents at child support hearings.

Now an appellate court ruling has set the stage for the release of those jailed over such unpaid debts.

In May, Superior Court Assignment Judge Linda R. Feinberg ruled that the impoverished parents have the right to be represented. That decision was stayed pending appeal, which the higher court lifted on Thursday.

In her opinion, Feinberg found that the 14th Amendment of the Constitution provides the right to an attorney for those who might be incarcerated in lieu of child support.

Parents in nonsupport hearings must be advised of that right and if they cannot afford an attorney one must be appointed, Feinberg found.

Previously, courts held that parents did not have that right as their cases, heard in family court, were deemed civil rather than criminal.

Princeton lawyer David Perry Davis, who filed the litigation in 2000, believes there are 300 poor parents jailed statewide. However, Winnie Comfort, spokeswoman for the Administrative Office of the Courts, put the number at about 50.

Pasqua lost custody of her two children in 1999 to her former husband due to psychiatric problems and was ordered to pay $160 a week in support. When she was unable to pay, a warrant was issued for her arrest, Davis said.

Pasqua then appeared before Judge F. Lee Forrester, who told her she had to pay $3,400 or be jailed. When she could not pay she was sent to the Mercer County Corrections Center for two weeks.

“She was in psychiatric crisis and should not have been thrown in jail,” Davis said. “In fairness to Judge Forrester, he did not realize that. But he would have if she were represented by an attorney.”

She is now living in a halfway house, Davis said.

Davis said the 14 indigent individuals being held now at the Mercer County Corrections Center should be released soon.

But Comfort said their cases will have to be reviewed by a judge after the probation department determines whether they are actually indigent. Jude Del Preore, court administrator for Mercer County, said all cases will be reviewed individually.

While those who can pay child support and simply refuse should be jailed, Davis said, “some of these people didn’t have shoes on their feet and were required to pay $3,500 to be released.”

Meanwhile, Judge Richard J. Williams, administrative director of the courts, issued a memo to state assignment judges about the change mandated by Feinberg’s opinion. In it, Williams noted that since publicly funded lawyers are not available, judges may not incarcerate those parents found indigent in order to coerce compliance with child support payments.

However, the administrative office of the courts is continuing its appeal of Feinberg’s ruling, Comfort said.

In the appeal, Deputy Attorney General Patrick DeAlmeida, who represents the administrative office, said that because the Legislature has not appropriated funds to pay for lawyers for delinquent parents, either private attorneys will have to work for free or the court will lose a tool to collect back child support.

DeAlmeida called Feinberg’s ruling “clearly an incorrect trial court decision.”

New Jersey was one of six states that do not appoint counsel to parents who owe back child support, Davis said