ENFORCEMENT OF SUPPORT OBLIGATION

CS 844P-1 Criminal Nonsupport:  State Prosecution Procedures

09/86 Revised 12/11/14 Training Completed 12/26/14

18 U.S.C. 228; UCA 15-1-4(3), 76-1-302, 76-3-201(1)(d), 76-3-201.1, 76-7-201, 76-7-202, and 77-30-24

 

Case Criteria for State Prosecution

 

In considering a case for State prosecution, the CSS Agent, Attorney General’s Office (AGO) and others (e.g., Team Manager, Associate Regional Director (ARD), and Regional Director (RD)), are responsible to review the case and determine if it meets the criteria listed below.

 

1.                  There is an administrative order based on stipulation or a judicial order in place in which the support obligation is specified.  Do NOT make a referral in which the sole support order is an administrative default order or a participation order.

 

2.                  The non-custodial parent (NCP) had notice of the order with proof of service.

 

3.                  The NCP has failed to voluntarily make full payments of support for at least 18 out of the past 24 months, and/or the arrearage equals or exceeds $10,000.00.   Receipt of money from tax offset or lien/levies does not count as voluntary collections.

 

4.                  Reasonable and appropriate civil remedies, which include administrative or judicial remedies, have been pursued or after consultation with the civil AGO only, the attorney assigned to the case believes there is good reason to doubt that civil enforcement would be successful.  If this occurs, you must document the reason in the case narratives.  Some examples of this may include:

a.                   The NCP immediately quits work after income withholding has been implemented or his/her wages have been garnished;

b.                  The NCP evades service of civil process for support enforcement; or,

c.                   The NCP has successfully hidden his/her assets so they cannot be enforced upon civilly.

 

5.                  The NCP’s parental rights have not been terminated, i.e., through an adoption, and there is no pending action to terminate the NCP’s parental rights.

 

6.                  The NCP has a verified serviceable address, i.e., not a PO Box or a general delivery address.

 

7.                  The custodial parent (CP) is or was a IV-A recipient or a Non-IV-A applicant, i.e., the case is currently an open IV-D case.

 

8.                  The ORS Agent has been in contact with the CP within the 30 days prior to the case being referred, and that contact include verifying a serviceable address and valid phone number for the CP.

 

9.                  The CP is willing to cooperate by giving testimony in court.

 

10.              If another state’s child support agency is involved as the record keeper of past due support, the ORS Agent has verified that the other state will cooperate by attesting to the accuracy of the payment record, providing an explanation of their procedures, and if necessary, having a representative available to testify in court.

 

11.              At least one child was under the age of 18 at the time of the alleged crime.

 

In addition to the criteria listed above, it may be appropriate to consider the factors listed below.  Review the facts of the case with the regional criminal nonsupport (CNS) contact.  The regional CNS contact may consult with the  prosecuting attorney for assistance with evaluating the case facts against case law and/or other precedence.

 

12.              The child is in needy circumstances or would be if not for the support received from a source other than the NCP (i.e., the child is being supported by the CP, CP’s current spouse, public assistance, etc.).

 

13.              The NCP knowingly failed to provide the support.  In determining whether or not the element of the defendant “having a child” (U.C.A. 76-7-201) can be met, the prosecutor may consider, among other things, whether or not a genetic test has been completed.

 

14.              The NCP failed to do the best that s/he could reasonably be expected to do to provide support.  The NCP must have had the ability to provide support. This may be established by proof of actual income and assets or by proof of the NCP’s ability to generate income through employment, experience, training, education, and marketable skills.

 

15.              The NCP does not have a long history of incarceration on multiple occasions (i.e., long periods of time in prison).

 

16.              The NCP is not on public assistance (i.e., the NCP is open on IV-A Cash Assistance (AF) or General Assistance (GF)).

 

17.              The NCP is not physically or mentally disabled (i.e., the NCP is receiving a Social Security disability benefit).

 

18.              The NCP meets the criteria for civil enforcement and s/he has multiple cases with multiple CP’s. 

 

NOTE:  Before referring this type of case(s) to the AGO for civil enforcement, send the cases to the CSS regional office contact for a criminal prosecution screening.

 

In addition to the criteria listed above, the prosecuting attorney may review the case for the factors listed below.

 

19.              Statute of limitations:  The date of the offense is within:

a.                   two years for a misdemeanor; and,

b.                  four years for a felony.

 

The statute of limitations may be extended for cases that the NCP resided outside of Utah.

 

20.              Utah has jurisdiction in that the NCP, the CP or the child(ren) resided in Utah during the period of nonsupport being charged.

 

21.              There is a reasonable probability of conviction recognizing that the standard of proof is beyond a reasonable doubt.

 

22.              If an issue arises that calls into question the competency of the defendant or an insanity defense appears to be a possible issue, the prosecutor will consult with the Children’s Justice Division supervisors.

 

Procedures – Case Referral for State Prosecution

 

Once the CSS Agent, Team Manager, AGO, ARD, and RD decide that a case meets the criteria for criminal nonsupport, it should be referred to the appropriate regional CNS contact (Ogden, Salt Lake City, and St. George – Team 24) for consideration and possible Phase 1 Pre-filing Procedures.

 

NOTE:  If the AGO identifies a potential case for criminal non-support, they will:

 

1.                   Send an email to:

a.                   The regional CNS contact within their perspective office/region requesting a criminal prosecution screening; and,

b.                  The agent referring the case to the AGO, notifying him/her that the case should be reviewed for criminal nonsupport.

 

2.                   Leave the pending enforcement referral open until the regional CNS contact completes his/her review of the case.

 

3.                   After the regional CNS contact completes his/her review of the case, s/he will:

a.                   Send the case to the appropriate regional CNS contact, if necessary (e.g., the case was sent to the regional CNS contact in the Ogden office, but the CP resides in St. George).

b.                  Coordinate with the AGO to determine the next appropriate action:

i.                    Close the current enforcement referral because the  case will be referred for criminal nonsupport; or,

ii.                  Continue working the civil enforcement referral, because:

A.                It is appropriate to work the two actions simultaneously (e.g., service, etc.); or,

B.                 The case does not meet the criteria for criminal nonsupport.

c.                   Notify the referring agent that the case will be:        

i.                    Referred for criminal nonsupport; or,

ii.                  Worked by the AGO for civil enforcement.

 

The regional CNS contact is responsible to review the referral and consult with the CNS AGO for assistance in further evaluating the case for possible prosecution.  The referral may be declined by either the CSS regional CNS contact or the CNS attorney.

 

Initially a CNS referral is assigned to the criminal nonsupport team (Team 24).  The case will be worked by the appropriate regional CNS contact (office closest to where the CP resides).  If the NCP has multiple cases with multiple CPs, the cases will be worked by the office closest to where the NCP resides.

 

NOTE:  Effective September 1, 2014, all CNS referrals that would normally be sent to Utah County should now be sent to the Salt Lake CNS contact for review and final preparation.  Once the final preparation on the case is complete, the Salt Lake CNS contact will forward the case to the Salt Lake CNS attorney (AGO) to pursue. 

 

Before referring a CNS case to the regional CNS contact, the post-order agent is responsible to review the case and complete all applicable procedures listed below.

 

1.                  Ensure the current support (CRS) charge is correct.  This includes making sure all child(ren) emancipations have been completed accurately as of the date of the CNS referral.

 

2.                  Check for any pending administrative or judicial action that may be pending at the time of the CNS referral.  Narrate the results of the search.

 

3.                  Review the case for any new alerts and/or mail and complete the required action.

 

4.                  Determine if the NCP has multiple post-order cases.  If so, refer all post-order cases regardless of whether those cases meet the CNS criteria.

 

5.                  Obtain a copy of Criminal Nonsupport Checklist and review the case with the team manager to determine if the case meets the criteria for CNS.  If the manager:

a.                   Does not agree – Document the reason(s) in the case narratives and continue with the next appropriate enforcement action (e.g., civil enforcement).

b.                  Agrees – S/He is responsible to approve and sign the checklist.

 

6.                  Document the results of the review in the case narratives and the reason why the case is being referred for CNS consideration.  Summarize any pending actions that have not yet been documented.

 

7.                  Assign the case(s) to Team 24 and refer the case to the regional CNS contact.

 

NOTE:  If the case needs to be transferred to one of the other offices to be worked, the regional CNS contact will forward the case to the appropriate CNS agent.