1Paul Nichols
Friday, May 06, 2016
On Friday, Henry Peisch, a Bergen County Father of seven children faced a Superior Court Judge for the third time since he was arrested in court on April 8, 2016 and remanded to the Bergen County Jail for non-payment of support.
Bergen County Superior Court Judge Gary Wilcox ordered that Peisch to be moved from the jail’s general population to the ‘work release’ program, something that Peisch has objected to since his incarceration four weeks ago. Peisch is ordered to pay his ex-wife support for four children plus $581 per week in spousal support. Currently, however, only one child lives with the Mother.
Over the years that have passed since Henry was divorced in 2011, the court has one-by-one reversed its custody ruling - removing the children from the Mother and granting custody to Henry. The stories of how this came to pass are heart wrenching and the emotional toll that process has taken on the family immeasurable. The court, however, has turned a blind eye and is seeking only to enforce an outdated order that fails to reflect the reality this family faces.
Currently in Henry’s home, in Woodcliff Lake, live three of his children, Nathan, age 22, Sarah age 20 and Samuel age 17. At the time of Henry’s incarceration, Sarah was 9 months pregnant and has since given birth to a grandchild Henry has not seen. Additionally Henry’s sister, who is terminally ill with cancer, resides in the home along with Henry’s 84-year-old mother.
The three oldest children live on their own, one a single Mother raising kids of her own. Their youngest sibling, age 12, resides with the Mother and has asked the court numerous times to be placed in the custody of his Father.
Henry Peisch is no stranger to Bergen County’s child support enforcement. The mild mannered 56-year-old Peisch has been quietly railing against the system for many years. What may be seen as civil disobedience in Henry’s case is coupled with an economic reality that he cannot raise his family and comply with the court’s orders at the same time.
But to Henry, what this case is about is due process and a judiciary that refuses to play by its own rules.
I first met Henry in 2013 when he also was in and out of the child support enforcement system and preaching about case law and rules of the court. Time and again, armed with the law, court directives and common sense, Henry butted heads with Bergen County judges. Henry simply demanded that the court follow the rules and time after time the court fought back with a disdain for its own rules and for anyone who challenges their system.
In 2013, 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.
Pasqua v. Council re-established the principal that incarceration for non-payment of support was the exception and not the rule and incarceration was a tool only permitted only to coerce a parent to pay support if they were found to be willfully withholding money.
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 to me “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.
In February 2014 the Administrative Office of the Courts issued a new directive to ALL New Jersey family courts requiring that counsel be provided and that hearings were not only held but detailed reasoning put on the record before a parent was incarcerated.
Throughout most of New Jersey the meaning and spirit of Pasqua v. Council has been finally accepted as law. Most counties have decided that the expense of providing attorneys and holding full hearings on a parent’s ability to pay is too expensive and in fact, if done properly, very few parents would be found to be willfully non-compliant.
On March 14, 2016, the U.S. Department of Justice (DOJ) issued a Dear Colleague letter to state and local courts that announced apackage of resources to assist state and local efforts to reform practices for assessment of ability to pay as part of enforcement efforts to collect fees and fines, as well as child support.
The Federal Office of Child Support Enforcement has said that most unpaid child support arrears are owed by noncustodial parents with reported incomes below $10,000 per year. There is no evidence that incarceration results in more reliable child support payments that families can count on to make ends meet. Rather, incarceration can result in the accumulation of additional child support debt, and has the potential to reduce future earnings, erode a child’s relationship with his or her parent, and negatively impact family and community stability.
In its findings and recommendations the Federal Office of Child Support Enforcement refers to a Federal court case Turner v. Rogers, 131 S. Ct. 2507 (2011). Turner v. Rogers much like Pasqua v. Council challenged the enforcement system nationally. The New Jersey Supreme Court, however, in Pasqua v. Council cited protections for citizens of New Jersey that are guaranteed under our State Constitution.
While Turner v. Rogers addressed a Federal guarantee of rights to parents, in New Jersey we are guaranteed much, much more. New Jersey’s State Constitution guarantees its citizens a level of fairness and justice that exceeds those of the United States Constitution. It is unfortunate that those guarantees are only as good as the judges and justices that apply them in our courts.
Henry Peisch would give you the shirt off his back, the shoes off his feet or the last dollar in his pocket. What Henry will not give up is the protection of his rights under the law, nor will he sit by and watch another person’s rights be violated.
On April 8, 2016 Henry Peisch appeared before Bergen County Superior Court Judge Gary Wilcox. Peisch was summoned to the court on a Notice of Motion to Enforce Litigants Rights. Minutes in to the proceeding Judge Wilcox announced that this was now an ability-to-pay hearing.
While a ‘motion’ is decided on filings with the court and without witnesses or testimony, a hearing is for all practical purposes a trial. Henry was now faced with defending himself at trial without the benefit of documents, witnesses or any testimony other than his own.
Judge Wilcox played the role of prosecutor as well as Judge and found Henry to be not credible. Henry was also not entitled to be represented by court appointed council because his testimony as to his indigence was – you guessed it, not credible.
Since Henry, with no attorney or witnesses or chance to provide a defense, had failed to prove he was not guilty he was remanded to the Bergen County Jail.
Judge Wilcox ordered that Henry sell his vehicle, which he estimates is worth $3,000, and surrender that money in order to be released from jail. Although if released an arrest warrant would automatically be issued if Henry were to miss two future weekly payments of spousal and/or child support.
The endless cycle of warrants and incarceration that, like Henry, many parents who fall behind on support face is the product of a court unwilling to address the needs of a family and interested only in how much can you pay today?
As part of the enforcement cycle, Henry and other parents locked away for non-support, are scheduled to see a Judge every two weeks. The purpose of the bi-weekly hearing is to determine if incarceration remains a viable means to coerce a litigant to pay the amount ordered to secure their release.
Since his arrest in court on April 8, Adrian Bermudez, a family friend and attorney has represented Henry pro-bono in ‘emergent’ appeals to the Appellate Division and to the New Jersey Supreme Court. Bermudez has argued on Henry’s behalf that the proceedings in Bergen County do not meet the standard required by our law and that a decision should be rendered immediately due to Henry’s incarceration.
Both the Appellate Division and New Jersey Supreme Court have declined to certify Henry’s appeals as ‘emergent’ or an emergency. As such, both courts refuse to rule on the issue immediately and Henry would be required to file a non-emergent appeal that would take, normally, at least a year to be heard.
Today, Bermudez filed an Order to Show Cause on Henry’s behalf and once again argued before Judge Wilcox the merits of the judge’s refusal to find Henry eligible for an attorney and the validity of the 15 minute impromptu ability-to-pay hearing.
Wilcox ignored both issues telling Bermudez that both the Appellate and Supreme Courts had denied his motions on those issues.
On Monday morning at 5:30am, Henry Peisch will be let out of the Bergen County Jail only to report back at 4pm. While in work release Henry is subject to the work release contract.
In March of 2014, after 421 days in the Bergen County Jail’s work release, another Bergen Father - Kevin Macfie - was granted his release by the New Jersey Supreme Court. A month later the high court vacated the order holding Macfie saying that Judge Wilcox had never given Macfie a proper ability-to-pay hearing. A few months later Macfie was arrested by officers from the Bergen County Sheriff’s Department and charged with escape. Macfie served two months in jail before a public defender convinced him to plead guilty to escape in exchange for time served and a year’s probation.
For those who wish to watch the wheels of justice in motion, today’s proceedings before Judge Wilcox can be viewed on YouTube atHenry Peisch - Child Support Enforcement Hearing May 6, 2016 - YouTube
If you would like to help out Henry and his family visit
Friday, May 06, 2016
On Friday, Henry Peisch, a Bergen County Father of seven children faced a Superior Court Judge for the third time since he was arrested in court on April 8, 2016 and remanded to the Bergen County Jail for non-payment of support.
Bergen County Superior Court Judge Gary Wilcox ordered that Peisch to be moved from the jail’s general population to the ‘work release’ program, something that Peisch has objected to since his incarceration four weeks ago. Peisch is ordered to pay his ex-wife support for four children plus $581 per week in spousal support. Currently, however, only one child lives with the Mother.
Over the years that have passed since Henry was divorced in 2011, the court has one-by-one reversed its custody ruling - removing the children from the Mother and granting custody to Henry. The stories of how this came to pass are heart wrenching and the emotional toll that process has taken on the family immeasurable. The court, however, has turned a blind eye and is seeking only to enforce an outdated order that fails to reflect the reality this family faces.
Currently in Henry’s home, in Woodcliff Lake, live three of his children, Nathan, age 22, Sarah age 20 and Samuel age 17. At the time of Henry’s incarceration, Sarah was 9 months pregnant and has since given birth to a grandchild Henry has not seen. Additionally Henry’s sister, who is terminally ill with cancer, resides in the home along with Henry’s 84-year-old mother.
The three oldest children live on their own, one a single Mother raising kids of her own. Their youngest sibling, age 12, resides with the Mother and has asked the court numerous times to be placed in the custody of his Father.
Henry Peisch is no stranger to Bergen County’s child support enforcement. The mild mannered 56-year-old Peisch has been quietly railing against the system for many years. What may be seen as civil disobedience in Henry’s case is coupled with an economic reality that he cannot raise his family and comply with the court’s orders at the same time.
But to Henry, what this case is about is due process and a judiciary that refuses to play by its own rules.
I first met Henry in 2013 when he also was in and out of the child support enforcement system and preaching about case law and rules of the court. Time and again, armed with the law, court directives and common sense, Henry butted heads with Bergen County judges. Henry simply demanded that the court follow the rules and time after time the court fought back with a disdain for its own rules and for anyone who challenges their system.
In 2013, 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.
Pasqua v. Council re-established the principal that incarceration for non-payment of support was the exception and not the rule and incarceration was a tool only permitted only to coerce a parent to pay support if they were found to be willfully withholding money.
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 to me “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.
In February 2014 the Administrative Office of the Courts issued a new directive to ALL New Jersey family courts requiring that counsel be provided and that hearings were not only held but detailed reasoning put on the record before a parent was incarcerated.
Throughout most of New Jersey the meaning and spirit of Pasqua v. Council has been finally accepted as law. Most counties have decided that the expense of providing attorneys and holding full hearings on a parent’s ability to pay is too expensive and in fact, if done properly, very few parents would be found to be willfully non-compliant.
On March 14, 2016, the U.S. Department of Justice (DOJ) issued a Dear Colleague letter to state and local courts that announced apackage of resources to assist state and local efforts to reform practices for assessment of ability to pay as part of enforcement efforts to collect fees and fines, as well as child support.
The Federal Office of Child Support Enforcement has said that most unpaid child support arrears are owed by noncustodial parents with reported incomes below $10,000 per year. There is no evidence that incarceration results in more reliable child support payments that families can count on to make ends meet. Rather, incarceration can result in the accumulation of additional child support debt, and has the potential to reduce future earnings, erode a child’s relationship with his or her parent, and negatively impact family and community stability.
In its findings and recommendations the Federal Office of Child Support Enforcement refers to a Federal court case Turner v. Rogers, 131 S. Ct. 2507 (2011). Turner v. Rogers much like Pasqua v. Council challenged the enforcement system nationally. The New Jersey Supreme Court, however, in Pasqua v. Council cited protections for citizens of New Jersey that are guaranteed under our State Constitution.
While Turner v. Rogers addressed a Federal guarantee of rights to parents, in New Jersey we are guaranteed much, much more. New Jersey’s State Constitution guarantees its citizens a level of fairness and justice that exceeds those of the United States Constitution. It is unfortunate that those guarantees are only as good as the judges and justices that apply them in our courts.
Henry Peisch would give you the shirt off his back, the shoes off his feet or the last dollar in his pocket. What Henry will not give up is the protection of his rights under the law, nor will he sit by and watch another person’s rights be violated.
On April 8, 2016 Henry Peisch appeared before Bergen County Superior Court Judge Gary Wilcox. Peisch was summoned to the court on a Notice of Motion to Enforce Litigants Rights. Minutes in to the proceeding Judge Wilcox announced that this was now an ability-to-pay hearing.
While a ‘motion’ is decided on filings with the court and without witnesses or testimony, a hearing is for all practical purposes a trial. Henry was now faced with defending himself at trial without the benefit of documents, witnesses or any testimony other than his own.
Judge Wilcox played the role of prosecutor as well as Judge and found Henry to be not credible. Henry was also not entitled to be represented by court appointed council because his testimony as to his indigence was – you guessed it, not credible.
Since Henry, with no attorney or witnesses or chance to provide a defense, had failed to prove he was not guilty he was remanded to the Bergen County Jail.
Judge Wilcox ordered that Henry sell his vehicle, which he estimates is worth $3,000, and surrender that money in order to be released from jail. Although if released an arrest warrant would automatically be issued if Henry were to miss two future weekly payments of spousal and/or child support.
The endless cycle of warrants and incarceration that, like Henry, many parents who fall behind on support face is the product of a court unwilling to address the needs of a family and interested only in how much can you pay today?
As part of the enforcement cycle, Henry and other parents locked away for non-support, are scheduled to see a Judge every two weeks. The purpose of the bi-weekly hearing is to determine if incarceration remains a viable means to coerce a litigant to pay the amount ordered to secure their release.
Since his arrest in court on April 8, Adrian Bermudez, a family friend and attorney has represented Henry pro-bono in ‘emergent’ appeals to the Appellate Division and to the New Jersey Supreme Court. Bermudez has argued on Henry’s behalf that the proceedings in Bergen County do not meet the standard required by our law and that a decision should be rendered immediately due to Henry’s incarceration.
Both the Appellate Division and New Jersey Supreme Court have declined to certify Henry’s appeals as ‘emergent’ or an emergency. As such, both courts refuse to rule on the issue immediately and Henry would be required to file a non-emergent appeal that would take, normally, at least a year to be heard.
Today, Bermudez filed an Order to Show Cause on Henry’s behalf and once again argued before Judge Wilcox the merits of the judge’s refusal to find Henry eligible for an attorney and the validity of the 15 minute impromptu ability-to-pay hearing.
Wilcox ignored both issues telling Bermudez that both the Appellate and Supreme Courts had denied his motions on those issues.
On Monday morning at 5:30am, Henry Peisch will be let out of the Bergen County Jail only to report back at 4pm. While in work release Henry is subject to the work release contract.
In March of 2014, after 421 days in the Bergen County Jail’s work release, another Bergen Father - Kevin Macfie - was granted his release by the New Jersey Supreme Court. A month later the high court vacated the order holding Macfie saying that Judge Wilcox had never given Macfie a proper ability-to-pay hearing. A few months later Macfie was arrested by officers from the Bergen County Sheriff’s Department and charged with escape. Macfie served two months in jail before a public defender convinced him to plead guilty to escape in exchange for time served and a year’s probation.
For those who wish to watch the wheels of justice in motion, today’s proceedings before Judge Wilcox can be viewed on YouTube atHenry Peisch - Child Support Enforcement Hearing May 6, 2016 - YouTube
If you would like to help out Henry and his family visit
