When will a Bench Warrant issue for child support arrears? This is a question often worried about by a payor that is in over his head financially and behind in his child support obligation.
First, rest assured, you will be notified several times before a warrant is issued for your arrest. In the instance where a payor pays through the County Probation Department there will be a notice sent requesting his appearance sent to the home address on file with the Probation Department. This will be for either a hearing office from the Probation Department or a Superior Court Judge, often dependent on the particular County the payor resides in. If the payee receives direct payments from the payor, not through any direct garnishment of wages, then in all likelihood she or he will have to go to the Superior Court and file a motion for the enforcement of litigants rights, or for the reimbursement of child support where there are no pre-existing child support orders in place.
What is important to know is that New Jersey law defines three distinct bases for incarceration in a situation where there are arrears due. The three bases of law that will allow for incarceration are as follows:
- Relief to litigant proceedings pursuant to R. 1:10-3, R. 5:3-7.
- Contempt proceedings pursuant to R. 1:10-2.
- Criminal prosecution pursuant to N.J.S.A. 2C:24-5.
Of those three, relief to litigant proceedings under R. 1:10-3 is the most frequently used because the resort to either criminal prosecution under N.J.S.A. 2C:24-5 or contempt proceedings under R. 1:10-2 is rare in New Jersey.
A warrant for an Expedited Enforcement of Litigants Rights (ELR) hearing, pursuant to R. 1:10-3, R. 5:3-7, will require a noncompliant payor to come before a judge. The warrant is often issued for the continued failure to make support payments or provide medical coverage after already having an ELR hearing, or failing to appear at one or more ELR hearings.
The recommendation is made by the case worker from the Probation Department assigned to your case, based on consideration of several factors related to the case. A supervisory review within the County Probation Department is also required before any such recommendation to issue a warrant is forwarded to the judge, who then makes the final decision to issue the warrant. The Probation Department must consider factors affecting the obligor’s ability to pay, e.g., employment, disability, public assistance. Such hearings may result in an order in aid of litigant’s rights requiring an additional payment or a series of periodic payments to catch up the accrued arrears. As a way to help ensure compliance, the Order may provide that if the payor’s future payments are missed, a warrant may be issued without any additional notice to the obligor. The purpose of such a warrant is to bring the obligor before the court on an expedited basis in the event of future alleged non-compliance.
A Judge may issue a Bench Warrant for the arrest of a payor in three basic circumstances:
- Failure to Appear for an ELR Hearing. If, after service of the notice to appear for a ELR hearing, the payor fails to appear, an arrest is necessary to ensure obligor’s appearance before the court, known as a Warrant for Failure to Appear.
- Future Failure to Make One or More Child Support Payments. Where an Order from a ELR hearing provides that if the obligor fails to make one or more child support payments in the future, a warrant for arrest may issue in order to address the non-compliance as quickly as possible.
- Coercive Incarceration. Where an obligor has been ordered to make a payment toward child support arrears or provide medical coverage and refuses to do so, and incarceration is necessary to coerce compliance with the court’s order.
Also important to note is that there is a requirement that a indigent payor be provided with counsel for the hearings; the Supreme Court in Pasqua v. Council, 186 N.J. 127 (2006) (“Pasqua”), held that indigent parents, charged with violating child support orders and subject to coercive incarceration at hearings to enforce litigants’ rights, have a right to appointed counsel.
These questions have many facets, and the Administrative Office of the New Jersey Courts also has issued what is known as an Administrative Directive to all of the Superior Courts and various agencies involved in the proceedings. The following is a link to the Administrative Directive entitled “Use of Warrants and Incarceration in the Enforcement of Child Support Orders” : http://www.judiciary.state.nj.us/directive/2008/dir_15_08.pdf.
Contact Lyons & Associates
The Directive relates to child support enforcement actions brought by the Probation Division and discusses the nature of the court’s findings, the rights of the payor, and the conduct of hearings at length. For further answers to your specific child support arrears questions, contact us at Lyons & Associates. To schedule an appointment, contact us online or call our office at 908-575-9777.
Written by: Jennifer Presti, Esq.