|
Non-Payment of Deadbeat Parents Punishment Act
Non-Payment of Deadbeat Parents Punishment Act
By Maury D.
Beaulier, Esq.
The Law
Although child support enforcement is primarily left up to state
enforcement, a non-payment of child support may also become a federal
criminal offense under certain conditions. Using the commerce clause as its
base of authority, Congress enacted the Child Support Recovery Act of 1992 (CSRA),
Pub. L. No. 102-521, making a willful failure to pay a past due support
obligation, with respect to a child residing in another state, a federal
offense. 18 U.S.C. § 228 The intent of the statute was to prevent
non-custodial parents from fleeing across state lines to avoid paying their
child support obligations and to facilitate recovery of unpaid child
support.
The Penalties
A person convicted of a first violation of the CSRA may be punished by up
to s ix months in a federal prison and a fine. It is important to note that
federal Sentencing Guidelines do not apply to a first violation of the CSRA
because it is considered a Class "B" misdemeanor. As a Class B misdemeanor,
which is a petty offense, there is no right to a jury trial. For any
subsequent violation of the CSRA, federal Sentencing Guidelines are
applicable which effectively increase the presumptive sentence for any
subsequent offense to two years imprisonment and/or a fine. A second or
subsequent violation is a Class "E" felony which carries with it a maximum
sentence of 2 years incarceration. In such a case, there is a right to a
jury trial. The Deadbeat Parents Punishment Act (DDPA) of 1998, amended the
CSRA of 1992 and established felony violations for traveling in interstate
or foreign commerce to evade a child support obligation or for failing to
pay a child support obligation which is greater than $10,000 or has remained
unpaid for a period longer than two years. The balance of the CSRA and its
enforcement remains intact
The 1998 amendments to 18 U.S.C. § 228 rewrote the statute to provide, in
relevant part:
(a) Offense.--Any person who-
(1) willfully fails to pay a support obligation with respect to a
child who resides in another State, if such obligation has remained
unpaid for a period longer than 1 year, or is greater than $5,000;
(2) travels in interstate or foreign commerce with the intent to
evade a support obligation, if such obligation has remained unpaid
for a period longer than 1 year, or is greater than $5,000; or
(3) willfully fails to pay a support obligation with respect to a
child who resides in another State, if such obligation has remained
unpaid for a period longer than 2 years, or is greater than $10,000;
shall be punished as provided in subsection (c).
(b) Presumption.--The existence of a support
obligation that was in effect for the time period charged in the
indictment or information creates a rebuttable presumption that the
obligor has the ability to pay the support obligation for that time
period.
Fines and jail sentences are not the only consequence of a federal
conviction for non-payment of child support. A court may also order a
defendant to pay restitution to the custodial parent in an amount equal to
the child support arrearage existing at the time that the defendant is
sentenced. 18 U.S.C. § 228(c).
In most cases, the prosecutor will not offer pre-trial diversion, which
generally means staying the jail sentence in order to allow the defendant to
comply over a probationary period of time. This is not offered to underscore
the seriousness of the offense and prevent second and subsequent.
Upon a conviction, the defendant will also be placed on probation for a
period of years. During that probationary periods certain conditions will
apply. If any condition is violated, it may result in the defendant serving
additional jail time. Common conditions of probation that are imposed for a
violation of the DPPA include the following:
1. That the defendant support his dependents and meet other family
responsibilities, and comply with the terms of any court
order or order of an administrative process pursuant to the law of a State,
the District of Columbia, or an other possession or territory of the United
States requiring payments by the defendant for the support and maintenance
of a child or of a child and the parent with whom the child is living.
2. That the defendant work conscientiously at suitable employment or
pursue conscientiously a course of study or vocational training that will
equip him for suitable employment.
3. That the if the defendant is unemployed he/she work in community
service as directed by the court."
4. That the defendant appear at all scheduled state/local court child
support hearings.
Elements of the Offense
In order to convict a defendant accused of violation the Dead Beat
Parents Punishment Act, the United States must prove that the defendant:
1. Had the ability to pay,
2. Willfully failed to pay,
3. A known and past due child support obligation,
4. Which has remained unpaid for longer than one year
OR is an amount greater than $5,000,
5. For a child who resides in a different state than the defendant.
Clarifications of the Law
Federal statutes and subsequent case law have helped to define some of
the key terms of the statute.
- What is Past Due Child Support?
The CSRA federal statute specifically defines a "past due support
obligation" as any amount determined by a court order or an order under an
established administrative procedure of any state which finds child support
due from a person to a child or a person with whom a child is living; and
the obligation has remained unpaid for a period longer than one year, or is
greater than $5,000. 18 U.S.C. § 228(d)(1).
- What does it mean to be Willful?
There is no clear definition of "willful" under the DPPA. However, a
good barometer of willfulness may be found under federal criminal tax law.
For criminal tax cases, willfulness is a " knowing and intentional
violation of a known legal duty." Cheek v. United States, 111 S.Ct.
604, 610 (1991).
It is important to recognize that willfulness cannot be presumed
from non-payment by the defendant alone. The prosecution has burden to
prove beyond a reasonable doubt that any failure to pay child support is
willful at the time the child support was due to the custodial parent AND
the defendant had sufficient money to pay the child support obligation or
that any lack of funds was caused by a voluntary and intentional act of the
defendant without justification in view of all the financial circumstances
of the case. H.Rep. No. 102-771, 102nd Cong., 2d Sess., at 6.
- What if partial payments have been made?
Even if partial payments have been made by a defendant, he/she may still
be convicted under the DPPA since that statute defines a " past due support
obligation" as "any amount" that is due and owing. A partial payment,
however, may be relevant to a defendant's ability or inability to pay
support. In fact, if full payment is made before the prosecution concludes,
it does not obviate the offense since the willful intent not to pay support
and the act of not paying when due has already occurred.
- Where is the Case Heard?
The location where the case is heard is called the "venue." The venue
for a prosecution under the DPPA may occur in one of two federal court
districts:
1. The District where the Child Resides; or
2. The District where the defendant resides.
To date Department of Justice has filed most cases in the district where
the child resides.
- When is the DPPA Usually Applied?
General guidelines have been set out for U.S. attorneys regarding when to
prosecute a defendant for a non-payment of child support. Although these
guidelines will not invalidate a qualifying prosecution under the statute
that does not comply with the guidelines, it provides a barometer of when to
expect a prosecution to occur.
First, U.S. attorneys are recommended to accept only cases where all
reasonable available remedies have been exhausted. That does not mean that a
state prosecution must occur first. It simply means that the U.S. attorney
must come to a subjective conclusion based on past history of the case and
past conduct of the defendant that other efforts would most likely prove
futile.
Cases that are ranked as priorities may include:
- a pattern of flight from state to state to avoid payment or
flight after service of process for contempt or contempt hearings; or
- a pattern of deception to avoid payment, such as changing employment,
concealing assets or location, or using false names and/or social security
numbers; or
- failure to make support payments after being held in contempt; or
- there exist particular circumstances which dictate the need for
immediate federal intervention, such as where the custodial parent and/or
child have special medical needs which are going unmet, where the custodial
parent and/or child is handicapped, or where the custodial family is in
danger of eviction and homelessness; or
- when the failure to make child support payments has a nexus to other
potential federal charges, such as bankruptcy fraud, bank fraud, federal
income tax charges or other related criminal conduct.
Priority should also be given to those cases where the children of the
non-paying parent are still minors. While there is no policy prohibiting the
filing of charges in "arrears only" cases where there is a chargeable period
of non-payment post-enactment of the DPPA, the policy of identifying cases
which are the most egregious encompasses the notion that the need to support
minor children, while they are minors, is of greater importance.
Possible Defenses
In screening cases, some of the possible defenses which should be
considered are:
1. Payment-in-kind - Often, a "non-paying" parent will
provide other assistance to his or her children, such as food, clothing,
tuition or other direct financial assistance not recorded or known to the
child support agency monitoring the case. Such "payments" may bear upon the
issue of willfulness.
3. Amount Accrued. A defendant may assert that the
arrearage amount of $5,000 accrued prior to the enactment of the statute.
2. Constitutional Challenges. Challenges to the
constitutionality of the statute may be made. In part, it may be argued that
statute is overbroad and unsupported under the Interstate Commerce Clause
or the 10th Amendment.
(Sixth Circuit) held that the Child
Support Recovery Act (CSRA) - the precursor to the DPPA - is not a proper
exercise of Congress’ power to regulate interstate commerce. The Court
stated that the CSRA criminalized conduct that was not criminal in Michigan
(the father’s failure to comply with a Michigan child support order). The
Court also stated that by criminalizing the failure to pay based solely on
the parent’s residence in a different state than the child, regardless of
how that diversity in residence resulted, the CSRA went beyond Congress’
stated intent in passing the law preventing parents’ interstate flight to
avoid child support payments.
|
