Written by attorney Carina Castaneda

Criminal penalties for failure to pay child support

Why are the states and the federal government using criminal penalties for delinquent child support obligors? Both state and federal laws targeting parents who willfully fail to pay child support to be criminally prosecuted are gaining support in the legislatures, the courts, and the public. Child support experts and policymakers are differentiating between those who "can't pay" and those who "won't pay." Nationwide, the states are developing and using more aggressive enforcement mechanisms to pursue those who simply refuse to pay. State and federal prosecutors target parents who purposely hide assets, avoid employment or otherwise shirk their responsibilities. States such as Kentucky, Ohio and Virginia, have conducted high profile trials and "sting" operations to locate and prosecute parents with large child support debts - in some cases there is several hundreds of thousands of dollars at stake. Federal agencies involved are the Inspector General's Office and Office of the Child Support Enforcement of the U.S. Department of Health and Human Services, along with the U.S. Department of Justice, created Project Save our Children (PSOC) to create a comprehensive health and human services and criminal justice response to this issue. Most of the parents arrested and prosecuted by PSOC are wealthy individuals with substantial assets. Many think that child support is a matter of civil law (family law) and not criminal. It's true that the child support guidelines and enforcement mechanisms are civil in nature, but failure to pay child support may result in criminal sanctions in three situations:

  • Prosecution under a state statute. In California, Penal Code Section 270 states in part, "If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of misdemeanor punishable by a fine not exceeding $2,000, 1 year county jail, or both."
  • Prosecution under federal law. The Deadbeat Parents Punishment Act was passed in 1998 and signed by President Bill Clinton and made it a federal crime to cross state lines in order to avoid child support payments. If a parent who failed to pay child support a minimum of $5,000 for a period of at least 1 year or if the parent owes at least $10,000, the parent may be charged with a felony and, if convicted, may be sentenced to up to 2 years in state prison.
  • Because child support orders are official court orders, a parent disobeying the order risks contempt of court.

What if the parent doesn't have the resources to pay the child support? The inability to pay defense must be raised by the obligor. Additionally, instead of letting your arrears increase, a motion for downward modification based on change of circumstances must be immediately filed. Both the federal and state must prove that whether or not a parent has the financial ability to comply with the child support order is critical in their prosecutions. In other words, in order to obtain a conviction, a prosecutor has to prove that the parent has the resources to pay child support and simply chose not to do so. Before you face prosecution, parents who truly lack the ability to pay child support should consult an attorney to see what options are available besides a modification. Many states offer parents who cannot meet their obligations the opportunity to negotiate a payment or substantially decrease their debt.

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