Although incarceration for failure to pay child support is a last resort for most judges, it is still a very real penalty for failing to meet your child support obligations. The possibility of sentencing someone to jail for a civil offense brings up an interesting legal dilemma: Is a defendant in a civil proceeding entitled to legal counsel if he or she is facing the possibility of incarceration? As you are probably aware, defendants in criminal proceedings have the right to be represented by an attorney, according to the Sixth Amendment of the U.S. Constitution. The key word here is “right”, as opposed to “entitled”, meaning that the defendant would have to hire his or her own attorney. If, however, the defendant cannot afford one, he or she can apply for a court-appointed attorney.
Court-appointed counsel for indigent defendants is mostly limited to felony or misdemeanor cases, although exceptions are made for juveniles, mentally ill or developmentally disabled defendants, and cases involving custody and/or child protection. In New Jersey, the Supreme Court case of Pasqua v. Council (2006) established that an indigent person is entitled to legal representation in child support enforcement proceedings, as there is a threat of incarceration if the defendant is found to be in willful non-compliance. It is required, however, that you prove your inability to afford a lawyer by providing information about your finances, living situation, criminal history (if any) and employment status.
In addition to a lawyer, you have the right to consult experts who can help support your claims, but there is no law or constitutional right that entitles you to expert evaluations, even if you are indigent. A recent case that illustrates this point is Ariel Schochet v. Sharon Shochet, which was decided by the Appellate Division in 2014. The litigant had already been approved for a public defender to represent him in a child support obligation hearing, but he also petitioned the courts for an employment expert and an accounting expert.
The appeals courts denied these requests, stating that in cases of failure to pay child support, the information that would be evaluated by employment and accounting experts would be information that the courts would already have through standard factual finding procedures. This information includes specific details about the payor's income, assets, employment, and other factors that determine a person's ability to pay. Another critical factor is that the experts would only be determining factors that are relevant to a person's ability to pay, but not whether that person's failure to pay is willful or inexcusable. The issue of willful failure to pay is what's at stake for the defendant, thus the right to counsel is justifiable, but the expert witnesses are not.
The need for expert testimony is debatable, but legal representation is critical when there is a real threat of incarceration. You should, at the very least, speak to an experienced attorney about your rights and legal options prior to your hearing.
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