Judge rules lawyer needed in back child support cases

Friday, April 25, 2003

By LINDA STEIN

Poor New Jersey parents who owe back child support must be represented by a lawyer at any hearing where they may be incarcerated, Mercer County Assignment Judge Linda R. Feinberg ruled yesterday.

Further, the lawyer must be appointed within 72 hours of an arrest, the judge said.

Previously, courts had found that because deadbeat parents were facing incarceration in a civil proceeding they were not entitled to an attorney.

But Feinberg, in a 52-page opinion, found that the 14th Amendment to the Constitution provides the right to an attorney.

“Civil contempt hearings are examples of proceedings which are civil in form but which can nevertheless result in incarceration,” Feinberg said in her opinion.

She noted that only a “handful” of jurisdictions do not give those facing hearings for nonpayment of child support the right to an attorney. And in many states those who fail to pay child support cannot be jailed.

Feinberg had said during an earlier hearing on the matter that she discussed it with her 17-year-old son while they were driving. Her son told her, “Well, Mom, anytime you’re going to incarcerate somebody, you know, shouldn’t you give that person a lawyer if they can’t afford it?” Feinberg said, “It’s a simple concept.”

Princeton attorney David Perry Davis, who sued family court judges and the state court system on behalf of three indigent plaintiffs who face incarceration for not paying child support, was thrilled with the ruling.

“There are close to 300 people in jail for `coercive’ incarcerations,” said Davis, meaning they were jailed to pressure them into making child support payments.

But, said Davis, most of those affected are inner-city men “with six kids by three women who cannot even support themselves.”

“They need to review everybody (in jail) with an attorney at their side and see if they need to stay in jail,” he said.

Davis said those who can pay court-ordered child support and simply refuse are “the ones who belong in jail.” But, he pointed out, “There (are) no doctors in jail with trophy wives and Porsches” who aren’t paying support.

Most of those who are in jail “(aren’t) being coerced to pay, they (are) being punished for being poor.”

Feinberg’s opinion suggests that each county counsel’s office either provide the lawyers or that private lawyers be hired by the courts. A financial form similar to the one used by the state Public Defender’s Office could be used to determine a defendant’s income level, she wrote.

“Did she provide us with the money?” asked Alfred B. Vuocolo Jr., Mercer County counsel.

“One obvious concern that I would have is the county counsel and members of his staff are prohibited from doing any criminal defense work. I don’t know what the ramifications would be. If it’s a state mandate, the state would have to pay for it.”

A local attorney who practices family law said the decision may create some chaos at first.

“It’s probably an appropriate determination for what’s going to be an onerous situation,” said David Saltman, a lawyer who specializes in family law.