Case in Brief: Courts Uphold Criminal Penalties for the Failure to Pay Child
Support
By Teresa A. Myers
In the past twenty years, both state and federal courts have examined the
issue of whether parents who are seriously delinquent on their child support
payments may be jailed for their failure to support their children. Nearly half
of the state supreme courts and at least ten of the 11 federal circuit courts of
appeals have heard cases concerning criminal penalties for failure to pay child
support. As legislators and other policymakers debate the value and
appropriateness of criminal sanctions for nonsupport, a review of the court
holdings from state supreme courts and high level federal courts offers a legal
perspective to the policy discussions in this area. Below, we examine some of
the most commonly asked questions and how the courts have answered them.
Q. Why are states and the federal government using criminal penalties for
delinquent child support obligors?
A. State and federal laws aimed at criminally penalizing parents for not
paying child support are gaining backing for several policy reasons. First,
child support experts and state policymakers are detecting fundamental
differences among parents who are delinquent in child support - dividing them
into "can't pay" and "won't pay" parents. While millions of dollars nationwide
are being invested into programs to help the very low-income "can't pay"
parents, states are developing more aggressive enforcement tools to pursue the
"won't pay" parents who simply refuse to acknowledge their child support
obligation, despite having the financial resources to do so. The increasingly
common use of criminal statutes and court contempt orders in child support cases
reflects society's growing frustration with "won't pay" parents. A recent
opinion by the U.S. Ninth Circuit Court of Appeals aptly captured the prevailing
judicial sentiment toward parents who evade child support obligations:
"It is just as much a violation of the CSRA [Child Support Recovery
Act] for a non-custodial parent to fail to pay child support where his
refusal to work is motivated by sloth, a change of lifestyles or pursuit of new
career objectives. For most people, bringing children into the world does limit
life choices by imposing certain long-term financial obligations." [U.S.
v. Ballek, 1999 WL 125955 (9th Cir. (Alaska), Mar. 11, 1999) (NO.
97-30326)].
State and federal prosecutors are selectively using their state criminal
nonsupport laws to target parents who purposely hide assets, avoid employment or
otherwise contrive to shirk their child support responsibilities. Some states,
such as Kentucky, Ohio and Virginia, have conducted high profile trials and
"sting" operations to locate and prosecute parents with large child support
debts - in some cases several hundreds of thousands of dollars. Federal
prosecutions are also becoming more common as federal officials crack down on
wealthy child support obligors in interstate cases. The Inspector General's
Office and the Office of Child Support Enforcement of the U.S. Department of
Health and Human Services, along with the U.S. Department of Justice, created
Project Save Our Children (PSOC), "to create a nationwide comprehensive and
coordinated health and human services and criminal justice response to
unresolved child support enforcement cases." PSOC investigates and prosecutes
high-profile criminal nonsupport cases with interstate circumstances, typically
under the Child Support Recovery Act of 1992. By focusing on high-profile cases,
PSOC hopes to deliver a strong public message to delinquent obligors who
consistently avoid paying child support. Most of the parents arrested and
prosecuted by PSOC are wealthy individuals with substantial assets.
Q. Isn't child support a matter of civil, not criminal, law?
A. Laws concerning child support guidelines and most child support
enforcement mechanisms are civil in nature, but failure to pay child support may
subject a parent to criminal sanctions in three situations: 1.) prosecution
under a state criminal "failure to provide support" statute, 2.) prosecution
under the federal Child Support Recovery Act of 1992 (CSRA), or 3.) a finding of
contempt of court for failure to obey the court's child support order.
All states have criminal laws setting felony or misdemeanor penalties for
failure to support a child or family. Most of these laws were not specifically
written with child support in mind, but were originally intended for parents who
abandoned or neglected their children. Classifications of these statutes range
from "desertion and nonsupport" (Michigan) to "nonsupport of a child or spouse"
(Kansas) to "failure to meet an obligation to provide support to a minor"(West
Virginia). Likewise, maximum penalties under these laws vary greatly, from 14
years in prison for a felony conviction in Idaho to six months in prison for a
misdemeanor in Rhode Island.
Parents who willfully avoid child support payments for a child in another
state and owe the greater of a year's worth of child support or $5,000 may be
prosecuted under the federal Child Support Recovery Act of 1992. When the
statute originally was written, the crime was classified as a misdemeanor, and
delinquent parents risked a maximum jail term of six months. With the passage of
the Deadbeat Parents Punishment Act of 1998, this federal crime was upgraded to
a felony and now carries a maximum prison sentence of two years for parents who
owe at least $10,000, or are at least two years behind in their child support
obligation and possess two contempt citations for failure to obey their child
support order. The original offense also was expanded to include delinquent
parents who cross state lines to evade child support responsibilities, in
addition to those living in different states from the children.
Because child support orders are official court orders - with the same weight
as orders such as subpoenas to appear in court - a parent disobeying the terms
of the child support order risks a finding of contempt of court. Based on this,
a contempt of court order is probably the most common avenue for a delinquent
child support obligor to find himself or herself behind bars.
Q. Is
contempt of court a civil or criminal violation?
A. Contempt of court orders can be either criminal or civil in nature,
and criminal and civil contempt proceedings differ in several regards. Although
most states have many laws concerning contempt of court powers, courts do not
need explicit statutory authorization for issuing a civil contempt of court
order and subsequent penalty for violation of a child support order; this
contempt power is typically inherent in the court's basic authorization to
enforce its orders. Civil contempt of court may be punishable by jail time,
restitution, or fines. Under a civil contempt order, the person guilty of
contempt of court "holds the jailhouse keys" in that he can cure the contempt
and gain release from jail by abiding by the order, e.g. by paying the overdue
child support. In a civil contempt of court proceeding, the violation of the
order must be proven by clear and convincing evidence and the burden of proof
may be shifted to the defendant in some circumstances.
Despite carrying a criminal penalty of incarceration, civil contempt of court
orders are not classified as criminal actions; criminal contempt is a different
matter in several respects. Unlike in a civil contempt situation, under a
criminal contempt order, the contemnor does not "hold the keys to the jailhouse
door" -- he or she cannot shorten the imprisonment period simply by paying the
fine or complying with the order. Criminal contempt, rather, is a form of
punishment; a penalty imposed and required to be served to its completion.
Because of the punitive nature of these orders, they generally are accompanied
by many of the same due process requirements as a criminal trial (e.g. right to
notice, right to counsel, right to a jury trial, etc.), and criminal contempt
powers must be statutorily authorized by the legislature. Finally, in criminal
contempt hearings, the government bears the burden of proving the guilt of the
defendant beyond a reasonable doubt.
Courts differ in their characterization of contempt orders for failure to pay
child support. The lines between civil and criminal contempt are often blurred
in failure to pay child support cases, particularly if the court does not
explicitly clarify the charge facing the delinquent parent. Michigan's supreme
court decided that even though child support contempt proceedings were
statutorily intended to be civil in nature, the proceedings become criminal if
the defendant does not have the present ability to pay, and the defendant is
then entitled to representation by an attorney [Mead v. Batchlor, 435
Mich. 480, 460 N.W.2d 493 (Mich. 1990)]. New Mexico's state supreme court ruled
that a jail sentence, which is typically considered a criminal punishment, could
be imposed in a civil contempt proceeding for failure to pay child support
[Niemyjski v. Niemyjski, 98 N.M. 176, 646 P.2d 1240 (N.M. 1982)]. The
Supreme Court of Tennessee, however, held that child support contempt was a
criminal offense with a criminal penalty; therefore, the obligor could not be
incarcerated without a jury trial and a conviction [Brown v. Latham, Walker
v. Walker, 914 S.W.2d 887 (Tenn. 1996)].
The issue is further muddled by court decisions that not all child support
contempt proceedings classified as criminal are entitled to a jury trial [see
International Union, United Mine Workers of America v. Bagwell, 512 U.S.
821 (1994) [jury trial not constitutionally required for criminal contempt
proceedings]]. For example, in a criminal prosecution under the CSRA, the U.S.
Ninth Circuit Court of Appeals decided that a jury trial was not necessary
because the restitution penalty was not so severe as to convert the petty
offense - a misdemeanor - into a serious one deserving of a jury trial [U.S.
v. Ballek, 1999 WL 125955 (9th Cir. (Alaska), Mar. 11, 1999)(NO.
97-30326)].
State supreme court cases suggest that additional limits on the use of the
contempt power in the child support context exist. At least one state supreme
court has decided that if the delinquent parent proves he is financially unable
to "cure" the contempt, the court may not continue the incarceration [Hughes
v. Dept. of Human Resources, 269 GA. 587, 502 S.E.2d 233 (Ga. 1998)]. The
California supreme court adopted a more narrow reading of this concept, holding
that a delinquent parent's incarceration may continue "when the parent's
financial inability to comply with the order is the result of the parent's
willful failure to seek and accept available employment that is commensurate
with his or her skills and abilities" [Moss v. Superior Court, 17 Cal.4th 396,
950 P.2d 59 (Cal. 1998)]. Finally, the Supreme Court of Texas ruled that the
contempt order must consist of a written judgment of contempt or written order
of commitment before a parent may be incarcerated [Ex parte Strickland,
723 S.W.2d 668 (Tex. 1987)].
The only U.S. Supreme Court case to examine the issue of contempt for failure
to pay child support pivoted on this very question of whether the contempt was
criminal or civil in nature [Hicks v. Fieock, 485 U.S. 624 (1988)]. The
Court held that the California statute in question, which had a legal
presumption that the obligated parent was able to pay the required child
support, was an unconstitutional violation of the Due Process Clause of the U.S.
Constitution if the proceeding was a criminal contempt proceeding. The
statute's legal presumption reduced the burden of proof on the government and
transferred that burden to the delinquent parent, which is not permissible in a
criminal trial. On the other hand, the Court reasoned, if the statute were being
applied in a civil proceeding, the transfer of the burden of proof would be
constitutionally valid. Therefore, the Court remanded the case back to the lower
court to determine whether the contempt proceedings were civil or criminal in
nature. The Supreme Court also offered guidance to the lower court by more
clearly delineating some of the characteristics distinguishing civil and
criminal contempt orders and outlining examples of both.
Q. Does the child support obligor always have the right to an attorney during
contempt proceedings?
A. State courts have reached conflicting
conclusions regarding the question of the delinquent obligor's right to counsel
in child support contempt proceedings. Several state supreme courts, including
Delaware, Michigan, North Dakota, Texas, and Vermont, have ruled that
noncustodial parents facing incarceration for contempt of a child support order
have the right to be represented by a lawyer during the contempt proceeding
[Black v. Division of Child Support Enforcement, 686 A.2d 164 (Del.
1996)[civil contempt]; Mead v. Batchlor, 435 Mich. 480, 460 N.S.2d 493
(Mich. 1990) [civil contempt]; State v. Gruchalla, 467 N.W.2d 451 (N.D.
1991) [civil contempt]; Ex parte Gunther, 758 S.W.2d 226 (Tex. 1988)
[unclear whether civil or criminal]; Choiniere v. Brooks, 163 Vt. 625,
660 A.2d 289 (Vt. 1995) [civil contempt]. The Delaware supreme court
specifically found that "the presumption that an indigent defendant has the
right to appointed counsel applies when, if he loses, he may be deprived of his
personal liberty," but did not apply if the state sought punishment of something
less than incarceration.
Other state supreme courts, including Florida, Missouri, New Mexico and North
Carolina, have decided that parents subject to child support civil contempt
sanctions are not entitled to legal representation [Andrews v. Walton,
428 So.2d 663 (Fla. 1983); State ex rel. Sterling, 719 S.W.2d 455 (Mo.
1986); State ex rel. Dept. of Human Services v. Rael, 97 N.M. 640, 642
P.2d 1099 (N.M. 1982); Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (N.C.
1980)]. The Florida Supreme Court found that in a situation where the father had
the ability to pay the child support but willfully refused to do so, and thus
was not indigent, the father's due process rights were not violated when the
trial court ordered incarceration without appointing counsel for him in the
civil contempt proceeding.
Even indigent obligors are not necessarily entitled to a lawyer. The North
Carolina court ruled that "since the nature of nonsupport civil contempt cases
usually is not complex, due process does not require that counsel be
automatically appointed for indigents in such cases" and that counsel would only
need to be appointed in cases where it was "necessary for an adequate
presentation of the merits [of the case], or to otherwise ensure fundamental
fairness" [Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (N.C. 1980)].
Proving indigency in order to obtain court-appointed counsel can place the
delinquent parent in a potentially self-incriminating position if the he or she
is not found to be indigent. If the court rules that the parent is not indigent,
that ruling could lend credibility to a charge that the parent had the resources
to pay the child support and chose not to. Recognizing this, the Supreme Court
of North Dakota required that a father found in contempt for failure to pay
child support should have had the opportunity to prove his indigence for
purposes of appointment of counsel in private meetings with the judge and
lawyers, rather than in open court, since the disclosure of facts relative to
proof of his indigence could have been used against him in the contempt
proceedings [State v. Gruchalla, 467 N.W.2d 451 (N.D. 1991)].
Even if the defendant is entitled to counsel, he may not be entitled to have
the state pay for it. Missouri's Supreme Court held that the trial court in a
civil child support contempt proceeding "could not compel the state to expend
public funds by appointment of a public defender to represent the alleged
indigent father" [State ex rel. Sterling v. Long, 719 S.W.2d 455 (Mo.
1986)]. Similarly, the Delaware supreme court ruled that the Office of the
Public Defender could not be appointed to represent an indigent defendant in
criminal contempt proceedings arising out of child support orders [Black v.
Division of Child Support Enforcement, 686 A.2d 164 (Del. 1996)].
Q. What if the child support obligor claims that he or she doesn't have the
resources to pay the required child support?
A. Many parents delinquent in their child support payments and subject to
contempt citations claim that they are unable to financially meet their support
obligations. At least three state supreme courts - California, Oregon, and Texas
- have ruled that it is the obligor's responsibility to raise an inability to
pay as a defense, and to prove that inability by a preponderance of the evidence
[Moss v. Superior Court, 17 Cal.4th 396, 950 P.2d 59 (Cal.
1998); State ex rel. Mikkelsen v. Hill, 315 Or. 452, 847 P.2d 402 (Or.
1993); Ex parte Roosth, 881 S.W.2d 300 (Tex. 1994)]. It is not, according
to the courts, the responsibility of the custodial parent or the state to prove
that the noncustodial parent has the financial resources to meet his or her
child support obligation. The U.S. Supreme Court, in Fieock, also found
that allocating the burden of proof in this manner was constitutional and
reasonable in child support contempt proceedings.
Whether or not a parent has the financial ability to comply with the child
support order is particularly important in prosecutions under the CSRA, which
requires that the parent's failure to pay support must be "willful" in order to
warrant a conviction. In other words, in order to obtain a conviction under this
federal law, the government must prove that the parent has the resources to
comply and simply chose not to do so. See U.S. v. Mathes, 151 F.3d 251
(5th Cir. 1998); U.S. v. Brand, 163 F.3d 1268 (11th
Cir. 1998). The Ballek court examined the CRSA and Congressional
legislative history in order to clarify the willfullness requirement and
determined that "a noncustodial parent who does not have the funds to satisfy
the child support award, and who does not obtain a reduction or remission of the
award because of inability to pay, will almost certainly be engaged in willful
defiance of the state court's child support order" [U.S. v. Ballek, 1999
WL 125955, 1999 Daily Journal D.A.R. 2325 (9th Cir. (Alaska), Mar.
11, 1999)(NO. 97-30326)].
Noncustodial parents who truly lack the ability to meet their child support
obligations have the right in every state to request a downward modification of
their child support order based on a change in circumstances. Also, many states
offer parents who cannot meet their obligations and have amassed arrearages the
opportunity to negotiate a payment plan and avoid severe sanctions, such as
prosecution, revocation of certain licenses, or liens on their property. With
these alternatives available, many courts and state agencies are adopting a
tougher stance against parents who ignore their child support obligations.
Q. Isn't it unconstitutional for the court to order a person to work just to
pay off a child support debt?
A. Some delinquent parents have argued that requiring an obligor to meet
a court-ordered child support obligation, without consideration of his or her
current employment status, is unconstitutional because it violates the U.S.
Constitution's prohibition on slavery and involuntary servitude or because it
creates a criminal penalty for a civil debt. In a recent case, the California
state supreme court examined this argument in detail and ruled that enforcement
of a child support order did not run afoul of the Thirteenth Amendment's slavery
and involuntary servitude prohibition [Moss v. Superior Court, 17 Cal.
4th 396, 950 P.2d 59 (Cal. 1998)]. Specifically, the court found that "there is
no constitutional impediment to imposition of contempt sanctions on a parent for
violation of a judicial child support order when the parent's financial
inability to comply with the order is the result of the parent's willful failure
to seek and accept available employment that is commensurate with his or her
skills and ability." In reaching this conclusion, the court distinguished child
support from other types of family support and narrowed 100 years of the state's
common law in this area. California's highest court also reviewed U.S. Supreme
Court and U.S. Circuit Court of Appeals cases, Congressional legislative
history, the state constitution, and analogous areas of common law in order to
reach its holding. Based on this review, the court determined that the crucial
element in slavery or involuntary servitude is the requirement that the
oppressed person be bound to one employer or one form of employment. Since child
support orders do not require the obligor to work for a specific person or in a
particular line of work, the court held that enforcement of such orders does not
rise to the level or slavery or involuntary servitude. The court also noted that
the U.S. Supreme Court has outlined exceptions for the performance of other
civil duties, such as jury service, military service, road work, and enforced
labor as punishment for a crime, such as work camps.
In March 1999, the Supreme Court for the State of Colorado likewise ruled
against a father's claim that a criminal contempt sanction for failure to pay
child support violated the state constitution's prohibition against imprisonment
for debt [In re Marriage of Nussbeck, 1999 WL 112188 (Colo., Mar 01,
1999) (NO. 97SC540)]. In this case, the father argued that because his child
support arrearage was converted automatically to a judgment against him under
Colorado child support law, he was being imprisoned for a standing debt. The
court rejected this argument, holding that the father may be imprisoned for
failure to pay child support because the contempt order was predicated on his
failure to comply with the order, not on the existence of a judgment against
him. The fact that the arrearage converted to a judgment against him, the court
stated, was immaterial to the contempt order for noncompliance.
At least one federal circuit court of appeals has also ruled that enforcement
of a child support order is not akin to slavery [U.S. v. Ballek, 1999 WL
125955, 1999 Daily Journal D.A.R. 2325 (9th Cir. (Alaska), Mar. 11,
1999)(NO. 97-30326)]. The U.S. Ninth Circuit Court of Appeals cited three
reasons for distinguishing child support enforcement from involuntary servitude
and slavery: 1.) "the relationship between parent and child is much more than
the ordinary relationship between debtor and creditor"; 2.) "the state's strong
concern for the welfare of minor children is...manifested by the fact that
parental obligations at the dissolution of marriage are not left to private
agreement"; and 3.) "the state has an interest in protecting the public [funds]
by ensuring that the children not become wards of the state." Furthermore, the
court declined to "interpret the Thirteenth Amendment in a way that would so
drastically interfere with one of the most important and sensitive exercises of
the police power - ensuring that persons too young to take care of themselves
can count on both their parents for material support." This holding illustrates
courts' reluctance to create a constitutional loophole in child support
enforcement.
Q. Did Congress have the constitutional authority to enact the Child Support
Recovery Act of 1992?
A. Many parents with delinquent child support obligations have challenged
Congressional authority to enact the CSRA in the first place, but none have been
successful. At least ten of the 11 federal circuit courts of appeal have heard
cases of this kind. The most common claim is that Congress exceeded its
Constitutional authority when it enacted the CSRA, violating the Tenth Amendment
of the U.S. Constitution in the process. All ten U.S. Circuit Courts of Appeal
rejected this argument and further found that passage of the CSRA was a proper
exercise of Congress' broad authority under the Commerce Clause [U.S. v.
Bongiorno, 106 F.3d 1027 (1st Cir. 1997); U.S. v. Sage, 92
F.3d 101 (2nd Cir. 1996); U.S. v. Parker, 108 F.3d 28
(3rd Cir. 1997); U.S. v. Johnson, 114 F.3d 476 (4th
Cir. 1997); U.S. v. Bailey, 115 F.3d 1222 (5th Cir. 1997);
U.S. v. Black, 125 F.3d 454 (7th Cir. 1997); U.S. v.
Crawford, 115 F.3d 1397 (8th Cir. 1997); U.S. v. Mussari,
95 F.3d 787 (9th Cir. 1996); U.S. v. Hampshire, 95 F.3d 999
(10th Cir. 1996); U.S. v. Williams, 121 F.3d 615
(11th Cir. 1997)].
Q. Can parents be prosecuted under the
Child Support Recovery Act for arrearages that accrued before the federal law
was enacted in 1992?
A. A few obligor parents have argued that prosecutions under the CSRA for
child support arrearages that accrued prior to enactment of the federal law
violate the U.S. Constitution's protection that a person not be found criminally
liable for an action that was not criminal when it was committed. These
challenges to an ex post facto application of the CSRA have generated
limited success in the courts. In at least five of the cases at the federal
court of appeals level, the courts ruled that the prosecutions did not violate
the ex post facto clause of the U.S. Constitution [U.S. v. Rose,
153 F.3d 208 (5th Cir. 1998); U.S. v. Black, 125 F.3d 454
(7th Cir. 1997); U.S. v. Crawford, 115 F.3d 1397
(8th Cir. 1997); U.S. v. Hampshire, 95 F.3d 999
(10th Cir. 1996); U.S. v. Muench, 153 F.3d 1298
(11th Cir. 1998)] Only the U.S. Ninth Circuit Court of Appeals agreed
with the defendant that the retroactive application of the CSRA, which subjected
the defendant to federal criminal penalties for failure to pay support without
differentiating between delinquencies alleged to have occurred before and after
the CSRA's date of enactment, was an unconstitutional ex post facto
enforcement of the CSRA [U.S. v. Mussari, 152 F.3d 1156 (9th
Cir. 1998). Ex post facto challenges are examined in the context of the
circumstances giving rise to the case; therefore, any of these courts, given
different circumstances, could rule differently.
Case Citations:
For a more detailed explanation of civil vs. criminal contempt, see Poston
v. Poston
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