The Child Support Recovery Act (CSRA) of 1992, makes the willful failure to pay a past due support obligation with respect to a child residing in another state a federal misdemeanor offense. The Deadbeat Parents Punishment Act (DDPA) of 1998, amended the CSRA. The DDPA entails felony punishment for a parent who moves to another state, or country, with the intention of evading child support payments if the debt has remained unpaid for over a year or is greater than $5,000. Parents who owe $10,000 or more, or who fail to pay for two years, may face up to two years in prison. Parents may also face fines and could be responsible for making restitution for unpaid child support.
Rebuttable Presumption of Ability to Pay
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.
Consequences of Federal Conviction
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. 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.
Upon a conviction, the defendant is placed on probation for a period of years. During that probationary period, certain conditions 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:
- The defendant must support his or her 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 another 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.
- The defendant must work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip him or her for suitable employment.
- If the defendant is unemployed he/she must work in community service as directed by the court.
- The defendant must appear at all scheduled state/local court child support hearings.
Elements of the Offense
In order to convict a defendant accused of violation the DDPA, the United States must prove that the defendant:
- willfully failed to pay an obligation,
- it is a known and past due child support obligation,
- the obligation has remained unpaid for longer than one year or is an amount greater than $5,000, and
- the obligation is for a child who resides in a different state than the defendant.
There is no clear definition of "willful" under the DPPA. Willfulness cannot be presumed from non-payment by the defendant alone. The prosecution has the burden to prove beyond a reasonable doubt that any failure to pay child support was willful at the time the child support was due to the custodial parent and that 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.
Even if partial payments have been made by a defendant, he/she may still be convicted under the DPPA because that statute defines a "past due support obligation" as "any amount" that is due and owing. However, a partial payment may be relevant to a defendant's ability or inability to pay support. Even if full payment is made before the prosecution concludes its case, that does not obviate the offense since the willful intent not to pay support and the act of not paying it when it was due already occurred.
The location where the case is heard is called the "venue." The venue for a prosecution under the DPPA may occur in either the district where the child resides or the district where the defendant resides.