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Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments—much of it owed to the state which sought to recover welfare payments—New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months. Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “obligor's driver's license shall be suspended by operation of law.”

Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness.” Relying on our state constitution in her 187-page opinion in Kavadas v. Martinez as chief administrator of the Motor Vehicle Division, the Mercer County assignment judge enjoined such automatic suspensions and gave the state 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.

The obligation to pay child support depends on the ability to comply with court-ordered child support payments. Delinquency is concentrated among low income parents with support obligations. It is only willful failure to pay that is enforceable and sanctionable. Judge Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc. Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin, our Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.

Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend, or a judge may order, suspension of a license as a punitive and coercive measure. Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support. Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants' rights hearings. She explained that “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver's license suspension to a court, or at any hearing when the family court itself is considering a driver's license suspension.”

In her comprehensive opinion, Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission—“Motor Vehicles Affordability and Fairness.” The report “found that 42 percent of individuals who had their licenses suspended lost jobs as a result of the suspension, 45 percent of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report's findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.” The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers…were ten times higher than the statewide average.”

We find that Judge Jacobson's ruling addresses an important public problem. We hope that the governor, attorney general, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate. Judge Jacobson declined to make her order retroactive. Thousands of parents—especially low income—doubtless remain stranded without driving privileges. Their status is something which the Legislature can and should address.

Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.” We concur with Judge Jacobson that “[s]uch an amendment would also end New Jersey's outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver's license suspensions.”