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Criminal Law Newsletters
FEDERAL ENFORCEMENT OF CHILD SUPPORT
Family Law: Child Support: Child Support Recovery Act
The Child Support Recovery Act of 1992 makes it a federal offense to willfully fail to pay a past due child support obligation for a child who resides in another state. A first offense under the Act is subject to a maximum penalty of six months in jail, to a fine, or both. Subsequent violations of the Act may be subject to a maximum penalty of two years in prison, to a fine, or both.
In order to convict a defendant under the Act, the federal government must prove that there is a known past due child support obligation, that the obligation has been unpaid for more than one year or is greater than $5,000, and that the obligation is for a child who resides in another state. The terms "past due child support obligation" mean an amount that has been set forth in a court order or in an administrative proceeding under a state's laws, an amount that is due from the defendant for the support and maintenance of a child or of a child and a parent with whom the child is living, and an amount that has been unpaid for more than one year or that is greater than $5,000.
In order to convict a defendant under the Act, the federal government must also prove that a defendant had the ability to pay the past due child support obligation and that the defendant willfully failed to pay the obligation. The term "willfully" means that the defendant intentionally violated a known legal duty. The defendant's willfulness to pay the obligation cannot be presumed from the fact that the obligation was not paid. The government must prove beyond a reasonable doubt that when the obligation was due the defendant had sufficient funds to pay the obligation or that his or her lack of sufficient funds was the result of a voluntary or intentional act on the part of the defendant.
The fact that a defendant has made a partial payment of his or her past due child support obligation does not mean that the defendant has not violated the Act. A past due child support obligation may consist of any amount. However, the fact that the defendant made a partial payment may be used to show the defendant's inability to pay or to negate the element of "willfulness" under the Act.
A defendant who is being prosecuted under the Act often alleges that the custodial parent interfered with the defendant's visitation rights or that the underlying child support order is invalid. However, these types of collateral issues are generally not defenses under the Act.
The Federal Bureau of Investigation has primary responsibility for investigating violations of the Act. The Department of Health and Human Services and the Office of the Inspector General may also be involved in an investigation.
In addition to being subject to imprisonment and/or a fine, a defendant who has been convicted under the Act is required to pay restitution to the custodial parent for the amount of the past due child support obligation. If the defendant receives probation, he or she may also be required to pay his or her current child support obligation, to be employed, to perform community service, to appear at any future child support hearings, or to file any and all necessary state and federal tax forms regarding child support.
Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.
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