Court-Appointed Lawyers in Child Support Enforcement Proceedings
By Snyder & Sarno on October 11, 2016
Under New Jersey Administrative Directive #2-14, a parent taken into custody for nonpayment of child support obligations has a right to counsel. If the court finds that the parent is indigent for purposes of representation, then an attorney must be assigned to represent the parent. If counsel is not provided, “incarceration is not available as a tool for coercive enforcement of the child support obligation.”
In Macek v. Peisch, the mother and father of seven children divorced in 2011. Because only two of those children are minors, the father is required to pay $42 per week in child support to the mother, plus $581.40 per week in alimony and $60 per week to cover arrears totaling $69,433. The father’s most recent support payment was made in August 2014, and he paid only $7. On January 7, 2015, at an enforcement hearing in the Family Part, the father surrendered himself on an arrest warrant that was issued as a result of his failure to pay support obligations. The father did have a court-appointed attorney at the hearing—his 3rd assigned lawyer, in fact—but the father requested that counsel be relieved, claiming that the attorney was not doing things that the father believed were reasonable to do. The father had also filed a malpractice suit against his two previous appointed attorneys, and threatened to file a grievance against the current attorney.
The Family Part judge was convinced that the father was firing or threatening malpractice suits against his lawyers on purpose. The father was indigent, and had been advised of the provisions of Administrative Directive #2-14; he therefore knew that he could not go to jail if he did not have a lawyer. The judge said that "[i]f I appoint another counsel [you are] just [going to] fire or threaten to fire that counsel, and then this is going to keep going on and on.” The judge accordingly concluded that the father was "using the appointed counsel as a ploy to [either gain] time or delay this proceeding” and that, as a result of this behavior, he had effectively waived his right to counsel. The judge ordered that the father could be represented by the lawyer who was handling certain appeals for him on a pro bono basis since that attorney was “inherently familiar with th[e] matter,” or by another attorney of his choosing.
The father filed a motion for reconsideration, which the judge denied for substantially the same reasons. Notably, in two proceedings subsequent to the father’s filing of this appeal in April 2015, the father was found non-indigent. Nevertheless, the Appellate Division concluded that the issue was not moot, reasoning that although the issue was not relevant to current enforcement proceedings, the father could be found indigent again at some point in the future. The Appellate Division thus proceeded to consider the issue.
The Appellate Division essentially agreed with the Family Part judge that someone like the father could be found to waive his right to counsel through acts like those at issue, but that the judge below did not have enough information to hold that the father had in fact waived his right. The Appellate Division began by reciting the basic principle that someone entitled to a court-appointed lawyer “cannot have it both ways—that is, he cannot refuse to represent himself but at the same time reject the services of assigned counsel." Moreover, the Appellate Division noted that an individual’s behavior can result in restrictions on certain rights; for example, enjoining litigation may be proper where someone has filed frivolous lawsuits on multiple occasions. The issue in this case was that the Family Part judge assumed without any information that the malpractice suit filed by the father against his two previous lawyers was frivolous. The judge did not have a copy of the malpractice complaint or the affidavit of merit, did not evaluate the underlying claims, and did not inquire into the status of the litigation of those claims. The Appellate Division concluded that the limited information in this case could not support a knowing and voluntary waiver of the elementary right to an attorney. The Appellate Division therefore reversed the judge’s order insofar as it found the father had waived his right to counsel and, directed the judge to consider the issue if and when the father is found indigent in the future.
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