This is primarily about Child Support and Incarceration. Child support is a vital source of income for millions of children and their custodial parents who receive the payments. In 2003, the Office of Management and Budget recognized child support as one of the most effective programs in federal government, and it is widely credited for keeping children and their families out of poverty. In 2018, 22 million children under 21 were eligible to receive child support, according to Census Bureau survey data. State legislatures have enacted laws focused on noncustodial parents who do not, or are unable to, pay child support. These policies overlap into criminal justice. Noncustodial parents with child support orders can intersect with the criminal justice system in two primary ways:
• A noncustodial parent is not in compliance with a child support obligation and that noncompliance leads to incarceration (short-term, primarily in local jails) as a result of either a civil contempt or criminal non-support action taken by the state.
• A noncustodial parent is incarcerated for a criminal offense and has a current or delinquent child support obligation. In this case, the parent’s incarceration is not due to failure to pay child support orders, and incarceration is often for longer periods of time and in a state or federal prison.
Federal Rule on Child Support Incarceration for Failure to Pay Child Support
When parents fail to pay child support, they can face legal ramifications, including civil contempt of court, criminal charges and incarceration. Recognizing that most parents cannot pay child support when they are incarcerated, many states have established programs to help parents meet their obligations—both before and as a part of the civil contempt process. These programs include examining child support orders to reflect realistic payment amounts given the individual’s circumstances and diversion programs to reduce incarceration rates and increase child support payments.
The state of Utah have a process for criminal prosecution for failure to pay child support. States consider failure to pay either a misdemeanor or felony, depending on how much money is owed.
Civil contempt proceedings are intended to encourage compliance with court orders rather than punish the defendant. In the case of child support, civil contempt is used to incentivize the defendant, also known as the obligor, to comply with the court order. Federal law requires that civil contempt only be used when the noncustodial parent has the ability to pay and is willfully avoiding paying. State policies and practices vary in how this limitation is implemented by the state child support agency. With noncustodial parents who are simply unable to pay their child support obligation, diversion or employment programs could have a significant impact in improving the likelihood of payment. The 2016 and 2020 final rules, as discussed above, formalize the due process requirements by providing guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt.
Diversion and Employment Programs
Parents who are delinquent in their child support payments may be ordered by the court to participate in diversion programs. Diversion programs are intended to redirect the parent toward training opportunities and away from the consequences of jail time.
Fair Child Support Orders
In addition to diversion and employment programs, states are also looking at the ways to ensure child support obligations are being calculated, as federal law requires, based on the noncustodial parent’s ability to pay. States’ efforts to establish orders that reflect a parent’s current earnings are designed to promote regular payment of support and reduce the likelihood a parent will fall behind on child support and accrue debt.
Incarcerated with Child Support Orders
A second category of incarcerated noncustodial parents are those who are in prison for criminal offenses not involving child support and who have current and/or delinquent child support orders. As of 2018, approximately 2.2 million people were in jails and prisons throughout the United States. According to the Bureau of Justice Statistics, 47% of state prisoners and 58% of federal prisoners have at least one child under the age of 18. In the U.S., over 5 million (7%) of children in the U.S. have a parent who is or was incarcerated. At least 20% of those, or about 440,000 of parents in prisons and jails, have a child support obligation.
Does A Person Have To Pay Child Support When They’re In Jail?
There are some things in life that are difficult to get out of: your cousin’s wedding, that blind date that just won’t end, and child support.
Child support in Utah is so difficult to get out of that it follows people to jail (or prison, as the case may be). At first, being responsible for paying child support while in jail doesn’t make sense.
How can you pay child support in jail? It’s almost completely impossible. It just seems mean to hold someone responsible for something they can’t possibly do.
There’s pretty good logic to it, though.
Being a criminal is a decision.
Admittedly, it’s a bad decision, but it’s a decision people make every day.
The decision to do criminal things comes with certain, let’s say, potentialities, like, let’s say, jail time.
All criminals know they could serve jail time. It’s why they try to not get caught. So, if a parent decides to do criminal things and knows very well he or she may go to jail for doing those things why should that parent’s child suffer for that decision? In other words, a child shouldn’t be deprived of support simply because a parent does something criminal and gets caught. It’s not the child’s fault, so the child should suffer as little as possible.
What if there already is a child support order, but the other parent goes to jail?
Going to jail does not automatically change a child support order. Only a judge can change (modify) a child support order. If a parent that is in jail has income or assets that can be used to pay for your child’s support, he or she has to continue to pay child support.
If there already is a child support order, and the parent who was ordered to pay child support goes to jail (is incarcerated), the child support order does not automatically end. The order remains in effect until the court changes it (modifies it).
The incarcerated parent may be able to pay child support if he or she still has income or assets that could be used to support your child. An incarcerated parent (in jail) may still have income or assets that he or she must use to support your child.
How can someone be in jail and still have income or assets that can be used to support a child?
Even though you are in jail, you might still have:
• interest or dividend income from investments such as stocks or bonds
• money from selling investment assets such as stocks or bonds.
• rental income
• disability, retirement, or other similar benefits.
• bank accounts, retirement accounts, or other accounts which could be used to support the child
• money from selling property (real estate, a vehicle, or other valuable property)
How do I enforce a child support order if the person who is supposed to pay child support is in jail?
You can file a contempt action in court. The court can hold a person in contempt of court for failing to pay a child support order even if he or she is in jail. The parent who is in jail must show that he or she cannot pay the support. An incarcerated parent may actually be able to pay the support. If the incarcerated parent claims inability to pay the child support, he or she will have to convince the judge. The judge will decide and can take into account other sources of child support described above. Even if the judge decides that the other parent is not in contempt that does not automatically mean that the child support order ends. If the judge does not actually modify the child support order, the unpaid child support will continue to add up. Unpaid child support is called “arrears.” The judge can later order the other parent to pay the arrears when he or she is able.
Incarceration for Non-Payment of Child Support
Incarceration is a real risk for parents who fail to pay child support. If you’ve found yourself in this situation, use the tips below to learn more about what the courts typically consider, along with what to do while serving jail time for non-payment of child support.
For non-custodial parents who owe back child support, it’s important to recognize the risks. While you may be able to get away with child support non-payment for a while, you can bet it will eventually catch up with you. When it does, the court may decide to hold you in contempt. This usually means fines (on top of what you already owe). In addition, the court can choose to incarcerate you for non-payment of child support. This means going to jail, and it’s the most serious consequence the courts use to enforce child support payments.
When the Court Rules for Incarceration
If a court finds a parent to be behind on child support payments, the judge may have that parent arrested for non-payment. The period of time for incarceration is generally considered:
• A minimum amount of time
• The amount of time it takes to ensure the child support payments will be paid in the future
• Usually not more than six months
Most courts will only consider incarceration after attempting to collect the child support payments through other methods, such as garnishing the parent’s wages. Courts generally take the position that it is in the child’s best interests to receive care and financial support from both parents, which is why they do not frequently overlook repeat offenders when it comes to child support non-payment.
Factors of Consideration
Before incarcerating a parent for non-payment of child support, the court will typically consider the following factors:
• Any reasons given for non-payment; for instance, if a father is questioning paternity, the court may decide not to hold a father in contempt until a paternity test has been completed
• The amount of child supports owed (in other words, the amount still outstanding, including fines and penalties)
• Whether the non-custodial parent is gainfully employed
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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