While most parents are diligent about making their child support payments, some try to move out of state to avoid their responsibilities. As a response to this, Congress enacted the Federal Deadbeat Parent Punishment Act (Act) in 1992.
Even though enforcement of child support orders is usually under the jurisdiction of the states, in certain cases the willful failure to pay child support can be a federal offense. Under 18 U.S.C. § 228, more commonly known as the Federal Deadbeat Parent Punishment Act (Act), the failure to pay past-due child support for a child residing in another state can be prosecuted as a federal crime.
Basis for Federal Jurisdiction
While the details of the offense, under 18 U.S.C. § 228 are complicated, the primary requirements for a violation consists of: (1) willfully failing to pay a support obligation for a child living in another state, when the obligation has not been paid for at least one year or when the amount of support owed exceeds $5,000; or (2) traveling between states to avoid paying a support obligation for a child living in another state; or (3) willfully failing to pay a support obligation for a child living in another state, when the obligation has not been paid for at least two years or when the amount of support owed exceeds $10,000.
Under the Act, there is a presumption that the parent who has committed an offense under the Act has the ability to pay the support owed. This clearly is a big assumption. However, if a parent cannot afford child support then that parent is solely responsible for filing a motion to modify child support to meet the parent‘s current financial situation.
Conviction Can Result in Prison
Upon conviction, a defendant must pay mandatory restitution in the amount of the support owed as of the time of the judgment. The penalties under the Act depend on whether it is a first time offense or whether the defendant has repeatedly failed to pay child support obligations.
In case of first time offenders under subsection (1) above, the punishment is a fine, and up to six months in prison, or both. If the defendant is a first-time offender under subsections (2) and (3), or a repeat offender under subsection (1), the punishment is a fine, and up to two years in prison, or both.
To obtain a conviction under the Act, the prosecutor will have to prove that: (1) there is a past due support obligation; (2) the defendant had the ability to pay;(3) the defendant willfully failed to pay; (4) the obligation remained unpaid for more than one year or exceeds $5,000 (or more than two years and exceeds $10,000); and, (5) the child resides in another state.
Willful Failure to Pay
The Act defines “support obligation” as any amount determined by a court or administrative body to be owed to a person for the support of a child or the support of a child and the parent that resides with the child. “Willfully” failing to pay is defined as knowing that there is an obligation and making a decision to ignore or avoid it. Paying support in part does not remove liability under the Act because the Act defines “support obligation” as any amount past due.
Document Your Payments – Never Pay Cash!
When paying child support, it is always important to do so in a manner that can be documented. It may be surprising to some, but not those experienced in this area, that parents often face child support delinquency issues even though they have paid. It is in fact quite easy for the receiving parent to deny the receipt of cash or other undocumented payments.