New Jersey Father Jailed for Non-Payment of Support for Kids He Supports and Lives With

By Hans Bader | May 3, 2016 | 3:29pm EDT
(AP Photo/Stephen Morton)

A Bergen County, N.J. father has been jailed for non-payment of support for kids that live with him. It is one example of the abuses committed by unjust, sometimes sexist (anti-male) judges in that county. As the Bergen Dispatch notes,

“Henry Peisch, a 56-year-old Bergen County father of seven children … has been incarcerated in the Bergen County Jail since April 8th for failure to pay court ordered child and spousal support.

“What is most concerning about the case of Henry Peisch is that only one child currently lives with the Mother, yet Henry is ordered to pay his ex-wife support for four children plus $581 per week in spousal support.

“Bergen County Superior Court Judge Gary Wilcox has ruled that Henry’s incarceration would ‘not have a detrimental effect on his son Samuel.’ Wilcox does not address the other household members.”

As the Dispatch notes, judges in the county have perpetrated “a systematic denial of basic due process to litigants facing incarceration.” They have violated court rulings like Pasqua v. Council, 892 A.2d 663 (2006), in which the New Jersey Supreme Court “ruled that indigent parents facing the threat of incarceration for nonpayment of child support were entitled to legal counsel,” and “a hearing in which their ability-to-pay must be determined.” Despite this clear ruling interpreting the state constitution, “In 2013, the Bergen County Family Court openly refused to conduct ability-to-pay hearings and counsel provided to indigent parents refused to ask for those hearings.  … The practice by New Jersey Family Courts of ignoring the Pasqua v. Council decision was not limited to Bergen County. In most other counties indigent parents were locked up daily without even being provided counsel” or “ability-to-pay hearings.”

Child support obligations are often excessive due to design-flaws in the methodology used to develop state child support guidelines, as I explain at this link and this link. Child support schedules in most states have been computed in a way that reflects massive double-counting of expenses for many parents. (State child support guidelines often effectively force a non-custodial parent to pay for expenses for which a custodial parent has already been partly reimbursed by the government, through refundable tax credits, tax exemptions, etc. They also double-count expenses in a different way, as expenses already partly reflected in the basic child support obligation imposed on a non-custodial parent (based on the parent’s income, under a state’s child support schedule) are awarded in their entirety yet again through statutory “add-ons” contained elsewhere in the state’s child support guidelines.)

In recent years, state legislatures have mostly increased child support obligations, and this has resulted in hundreds of thousands of non-custodial parents going broke. It also has resulted in increased correctional and court costs as thousands of such parents are jailed for nonpayment of support. County jails in some states include large numbers of people for non-payment of child support, some of whom simply cannot afford to pay what they have been ordered to pay.

As I noted in 2014 in the Richmond Times-Dispatch:

“You can be jailed for not paying your child support. That’s an exception to the usual rule that imprisonment for not paying your debts violates the 13th Amendment. Thousands of people are already jailed across America for failing to pay child support.

“In Mahoney v. Mahoney (2000), the Virginia Court of Appeals refused to hear the appeal of a father who had been found in contempt of court for not paying his child support. The court cited his failure to pay for an appeal bond. That requirement to put up an appeal bond can create a Catch-22 situation for parents, because if they are too poor to pay their child support, then they are also too poor to afford an appeal bond.”

Child support increases can backfire for state legislatures that enact them, since an increase can drive up state court costs by increasing the number of time-consuming legal proceedings involving dead-broke noncustodial parents unable to pay their full child-support obligation. The Supreme Court’s decision in Turner v. Rogers (2011) made clear that states cannot constitutionally jail parents for not paying child support, if the nonpayment is due to a genuine inability to pay. The court stated that while the [federal] Constitution does not “automatically require” states to pay for a lawyer for a noncustodial parent facing jail for inability to pay, they must provide either appointed counsel (at state expense) or “alternative procedures” to enable noncustodial parents to demonstrate their inability to pay.

Under the New Jersey state constitution, by contrast, there is a clear right to counsel.

Earlier, I wrote about how alimony provisions are often applied by judges in a sexist manner, and in a way that harms families and small businesses, at this link and this link.

For a scholarly discussion of how child-support obligations tend to be inflated under state child-support guidelines, see William S. Comanor, Mark Sarro, and R. Mark Rogers (2015), The Monetary Cost of Raising Children, in James Langenfeld (ed.), Economic and Legal Issues in Competition, Intellectual Property, Bankruptcy, and the Cost of Raising Children (Research in Law and Economics, Volume 27), Emerald Group Publishing Limited, pp. 209 – 251.

(As I noted in the Times-Dispatch, I am not divorced, in case you are wondering; my wife and I have one child, a daughter.).

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.

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