by: Maury Beaulier, Attorney.
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.
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-
(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.
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