May 5, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Once again, an outrage is occurring in the courts of New Jersey and once again, the Bergen Dispatch is standing tall in its opposition (Bergen Dispatch, 4/28/2016). Reporter Paul Nichols is to be commended for his unsparing criticism of judges and public defenders who routinely ignore not only state but also federal precedents that are supposedly binding on them.
Nominally, the issue is about Henry Peisch, but in truth, it’s about hundreds, even thousands of non-custodial parents living in the Garden State and subject to the child support orders issued by family court judges.
Peisch is the father of seven children. Three are adults and “out of the nest.” Two more are over the age of 20 but still live in his house. One boy, Samuel, is 17 and lives in his father’s house. Henry also provides his house to his sister who is terminally ill with cancer and his mother who is 84.
The only one of his children who still lives with his mother is 12. The boy has repeatedly asked family court judge Gary Wilcox to live with his father, but no action has been taken on that request. Reading between the lines, the Dispatch article makes it clear why that’s the case.
Put simply, over the years, Peisch has refused to roll over for the whims of Judge Wilcox and is now being punished for his impertinence. Wilcox is maintaining the youngest child in his mother’s custody in order to force Peisch to pay child support to her. Such at any rate is my reading of the matter.
That Wilcox’s actions are simply punitive toward a litigant he doesn’t like is made plain by the fact that, despite all the children having started out in their mother’s custody, over the years six have gone to live with their father. But Wilcox has never reduced the amount of child support Peisch is required to pay to reflect the ever-decreasing number of kids living with Mom.
Peisch has taken on each new addition and done his best to support them, plus himself, his sister and mother and of course continue paying child support for his kids and spousal support for his ex.
But now he’s out of resources, so naturally, Judge Wilcox couldn’t think of any better way to deal with the situation than to put Peisch behind bars. That’s right. Because he is unable to pay child support for kids who live with him and who are in any case adults, Wilcox put him in jail. Never mind the damage that does to everyone under Peisch’s care. No, according to Wilcox, jail is the only answer.
But it gets worse, much worse. As outrageous as the Peisch case is, as much as it violates the plain rulings of the New Jersey and United States Supreme Courts, it’s nothing but the tip of the proverbial iceberg. Apparently Wilcox’s behavior is just business as usual in New Jersey’s family courts.
In 2013, Henry Peisch along with dozens of other Bergen County parents faced with a revolving door to the Bergen County Jail began to file emergent appeals. By the end of 2013 more than 40 Orders from Bergen County Family judges incarcerating parents for non-support had been overturned, most by the New Jersey Supreme Court.
Those appeals showed a systematic denial of basic due process to litigants facing incarceration. In 2006, Pasqua v. Council, 892 A.2d 663, a landmark family court decision decided by the Supreme Court of New Jersey ruled that indigent parents facing the threat of incarceration for nonpayment of child support were entitled to legal counsel. Additionally the decision in Pasqua v. Council spelled out that prior to incarceration a parent was entitled to a hearing in which their ability-to-pay must be determined.
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. When asked, one of the public defenders paid by the county said “I used to ask for hearings but they told me to stop.”
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 and nowhere in New Jersey were ability-to-pay hearings being held.
What the Dispatch article neglects to mention is that the U.S. Supreme Court ruled much the same thing in 2011 in Turner v. Rogers. Although denying a right to court-appointed counsel in many cases, Turner made it clear that, before a parent could be incarcerated, judges are required to hold ability-to-pay hearings and make specific findings that the parent’s nonpayment is done willfully. That is, the parent has the ability to pay, but refuses to do so. Failing that, jail isn’t an option.
In short, the routine practice of family courts in New Jersey is to violate the rulings of both supreme courts.
Henry Peisch and others had the effrontery to contest those orders and, dozens of times, New Jersey appellate courts sided with them, overturning the orders of judges like Wilcox. But, rather than simply acknowledging their errors and changing their ways, Wilcox, et al, doubled down. So angered were they that litigants had the gall to actually assert their clear and unambiguous rights, the judges began punishing indigent parents.
If that doesn’t explain the bizarre and unconstitutional behavior of Wilcox toward Peisch, I’ll eat my hat.
Here’s more of that behavior that fairly screams “I am above the law; I can do anything I want.”
On April 8, 2016, when Henry was arrested in the courtroom he was NOT represented by counsel. The court had ruled that since Henry has filed a law suit against the public defender he had waived his right to counsel under Pasqua v. Council.
On April 8, 2016, when Henry was arrested in the courtroom, Judge Wilcox notified Henry that the proceedings were now an ability-to-pay hearing and did not give Henry an opportunity to gather evidence, present witnesses or make any defense other directly testifying on his own behalf.
Clear as well is that the judges started threatening public defenders who started refusing to demand the hearings the law says their clients are entitled to. That of course is legal malpractice and Peisch and others filed suit against the public defenders’ office for failure to competently defend their clients. That’s one they’ll win.
As this week’s National Parents Organization newsletter points out, there’s yet another twist to this tale that backs Henry Peisch and all the other non-custodial parents wronged by Little Napoleon’s like Wilcox. The United States Department of Justice has issued a Dear Colleague letter pointing out that, among other things, the dictates of Turner v. Rogers cannot be simply ignored. Indeed, doing so constitutes a violation of the federal civil rights statute, 42 U.S.C. §1983. Now Wilcox, being a judge, probably can’t be held liable, but others can be. Specifically, prosecutorial immunity doesn’t extend as far as judicial immunity does. Any prosecutor who violates a parent’s due process rights, knowing he/she is doing so, can be held liable. The requirement to hold an ability-to-pay hearing is crystal clear. No prosecutor can pretend ignorance of it. And in New Jersey and 44 other states, the right to court-appointed counsel is equally clear. That means that it’s not up to public defenders to ask for a hearing. Prosecutors should do so or potentially be sued for violation of an accused civil rights. And of course a run-of-the-mill legal malpractice suit will be available against any defense lawyer who doesn’t demand a hearing.
But for now, Henry Peisch and others like him continue to hold judges’ feet to the fire. They’re paying a high price, but eventually they’ll come out on top.
Kudos to Paul Nichols and the Bergen Dispatch for making their job just a little easier.
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