of Dependents Under State Laws
Criminal non-support state laws apply when both parents live in the
same state and in some interstate cases.
In many states willful failure to pay child support can be a
misdemeanor offense (less serious, like a parking ticket) or a felony
offense (more serious, like robbery). Often the dollar amount
of support not paid determines if the offense is a felony or a
misdemeanor. To file criminal charges, non-support must be
willful. An investigation should be done to determine whether
or not the non-paying parent had the money and the ability to pay the
obligation but chose not to pay or that the non-paying parent voluntarily and
intentionally did not have the funds to pay child support.
- File a police report or provide county attorney
information about arrears due and income/assets of non-paying parent.
- If adequate evidence is present and
county attorney determines non-paying parent has violated state non-support
laws, a warrant will be issued.
- A warrant will be issued and the sheriff or
local police should arrest the non-paying parentg parent, paying parenton-paying parent can be releases
on bond ( ask for this to be forfeited to you for the support owed
rather than to the stpaying parentor the non-paying parent maybe release on their own
- An arraignment will be held.
At the arraipaying parentt hearing, the non-paying parent enters
paying parent If the Plea is Guilty:
non-paying parent is sentenced, this can be jail time, fines or
both. You can ask for probation with to revokea
support payment reason enough torevoke probation or
Work Release Program.
- If the plea is Not Guilty:
trial date is set. It can be a jury trial or heard by
a Judge. The County Attorney must prove willfI the pleanon-support hcontestrred.
- If the plea is no contect (admitting guilt, but go ahead and
punish me) the outcome should be the same
as being found guilty.
Cases-- Make a Federal Case of it!
If you have a difficult Interstate case with a large arrearage you may
want to seek federal prosecution of the law forying parent. Violation of
federal lawfor first offenders is time served
in a federal penitentiary of six months. Second offense or
more is up to 2 years in a federal jail. The non-paying parent must
restitution in the amount of past due support.
For your case to qualify:
Attorney should give priority
to cases where:
- The non-paying parent must live in a different
- It has been determined either under a court order
or administrative order that the non-paying parent has a
past due support obligation of at least one year or $5000. punishable
at six months in jail. $10,000 or 2 year
non-support is punishable at up to 2 years in jail.
- The non-paying parent has willfully failed to
pay. Willfulness for these purposes is defined the same as
the federal criminal tax law as the knowing and intentional violation
of a known legal duty. The government
must prove that the non-paying parent had the money and the
to pay the obligation but chose not to pay.
- Partial payments do not mean that these charges
cannot be filed. However, partial
payments may show that the non-paying
not have the ability to pay the entire child support
obligation. An investigation should be done to
determine if partial payments are being made because of the
inability to pay or because the non-paying parent chose not to make
- Prosecution under this law should take place in
the Federal District Court where the
children live. Benefits
include; the child support agency's records of payments and arrearage
are in the children's district; there would not be any transportation
costs for the custodial parent and children to serve as
witnesses, and if the family isare alsoing welfare, the welfare records
arealso in the district where the children
- Cases should be referred
from the child support agency to the U.S. Attorney's office after
all reasonable efforts to enforce the case have
been tried and have failed.
The non-paying parent should be arrested and arraigned after
the warrant is issued. At
the arraignment hearing, the non-paying parent enters a plea.
- The non-paying parent flees the area after being
served with withholding
proceedings and/or contempt hearings;
- The non-paying parent shows a pattern
of changing jobs, hiding assets or
- the non-paying parent fails to abide by the
order after being held in
- the non-paying parent 's failure to make payments
is connected to other
such as: bankruptcy fraud (hiding assets), bank fraud (false statements
federal income tax charges (false statements or tax evasion) or other
What is the difference
between the state criminal non-support law and
federal criminal non-support law (Deadbeat Parent Act).
- If the plea is Guilty: non-paying
sentenced, this can be jail time, a fine or both. You can ask
for probation with misrevoke probationpayment reason enough to
revokeprobation or Work Release
- If the plea is Not Guilty: a trial
is set. It can be a jury trial or heard by a Judge.
County Attorney must prove willful non-support has occurred.
- If the plea is No Contest: (Non-paying parenting
is saying, "I'm not admitting guilt, but go
and punish me") - Outcome should be
the same as being found guilty.
The federal law requires that the case be an interstate case, that
$5,000 is due or payments have not been received for one year,
whichever occurs first. Under this law, a U.S. Attorney files
the charges, not the local prosecutor or District Attorney.
The case is heard before a federal court not the local county or state
court. The U.S. Attorney has the ability to ask the FBI investigate and
to ask the U.S. Marshall to travel anywhere in the U.S. to arrest the
Under state criminal non-support a local District Attorney can file
charges, if state law is violated. This varies from state to
state. On state criminal interstate cases, the local sheriff
has to travel to another state to extradite the non-paying parent back
state. This is a burdensome process and costs the local
county money. In some states it is not available because
there is no state law making non-support a felony offence.
About the Author:
Geraldine Jensen is the author of How to
Collect Child Support, 3rd Edition . She served on the US Commission
of Interstate Child Support and was instrumental in the
development and passage of child support enforcement laws for paternity
establishment, income withholding and federal criminal non
support laws. She is also the Publisher of Families Online Magazine