Child Support Enforcement: Criminal Non-Support of Dependents
By Geraldine Jensen
Criminal Non-Support of Dependents Under State Laws
Child Support Enforcement
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. To determine willful non- support: 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 the non-paying parent.
- If adequate evidence is present and the 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 parent. the parent can be released on bond ( ask for this to be forfeited to you for the support owed rather than to the state. The non-paying parent may be released on their own recognizance.
- An arraignment will be held. At the arraignment hearing, the non-paying parent enters a plea.
- 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 revoke support payment reason enough to revoke probation orWork Release Program.
- If the plea is Not Guilty:
The a trial date is set. It can be a jury trial or heard by aa Judge. The County Attorney must prove willful non-support .
- If the plea is no contest (admitting guilt, but go ahead and punish me) the outcome should be the same as being found guilty.
Interstate 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 non-paying parent. Violation of federal law for 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 make restitution in the amount of past due support.
For your case to qualify:
- The non-paying parent must live in a different state than the child.
- 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 six months in jail. $10,000 or 2 years-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 as 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 ability 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 parent did 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 full payments.
- 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 is on welfare, the welfare records are also in the district where the children live.
- 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 U.S.Attorney should give priority to cases where:
- The non-paying parent flees the area after being served with withholding notices, enforcement proceedings and/or contempt hearings;
- The non-paying parent shows a pattern of changing jobs, hiding assets or using different social security numbers
- the non-paying parent fails to abide by the order after being held incontempt
- the non-paying parent ‘s failure to make payments is connected to other federal criminal charges such as: bankruptcy fraud (hiding assets), bank fraud (false statements to the bank), federal income tax charges (false statements or tax evasion) or other criminal behavior;
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.
- If the plea is Guilty: non-paying parent is sentenced, this can be jail time, a fine or both. You can ask for probation with nonpayment as reason enough to revoke probation or a Work Release Program.
- If the plea is Not Guilty: a trial date is set. It can be a jury trial or heard by a Judge. The County Attorney must prove willful non-support has occurred.
- If the plea is No Contest: (Non-paying parent is saying, “I’m not admitting guilt, but go ahead and punish me”) – Outcome should be the same as being found guilty.
What is the difference between the state criminal non-support law and federal criminal non-support law (Deadbeat Parent Act).
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 to investigate and to ask the U.S. Marshall to travel anywhere in the U.S. to arrest the non-paying parent.
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 to your 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 offense.
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 nonsupport laws. She is also the Publisher of Families Online Magazine
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