The Acting Administrative Director of the Courts, Judge Glenn A. Grant, issued a memorandum detailing the steps that trial courts must take with respect to incarcerating individuals for non-payment of support.
In Pasqua v. Council, the New Jersey Supreme Court held that an indigent person facing incarceration for failure to pay child support must be provided representation by counsel. Apparently for the past several years, indigent individuals have not been provided counsel when they were faced with incarceration. The memorandum issued by Judge Grant addressed this issue and is a directive to the New Jersey trial courts to ensure that Pasqua is followed. The memorandum provides that during an enforcement hearing, the trial court must make a finding of whether or not a person is indigent. If they are found indigent, then counsel must be appointed. If a person is indigent and has not knowingly and voluntarily waived their right to counsel, and counsel is not appointed, then incarceration cannot be used as a method of enforcement. After the indigence hearing, the court must also conduct a hearing and make factual findings to determine whether or not the obligor has the ability to comply with the existing support order. To ensure compliance, the memorandum provides that the Probation Services Division and Family Practice Division will be conducting on the job training for court staff.