ENFORCEMENT OF SUPPORT OBLIGATION

CS 844-3 Criminal Nonsupport: Federal Prosecution Procedures

09/86 Revised 07/17/12 Training Completed 0//12 

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, 77-30-24; DCL-11-01

 

Nonsupport may be subject to criminal prosecution under the federal Child Support Recovery Act of 1992 in accordance with 18 U.S.C. 228 as follows:

 


“(a) Offense Any person who—

(1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000;

(2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or

(3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000;

shall be punished as provided in subsection (c).

(b) Presumption 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.

(c) Punishment The punishment for an offense under this section is—

(1) in the case of a first offense under subsection (a)(1), a fine under this title, imprisonment for not more than 6 months, or both; and

(2) in the case of an offense under paragraph (2) or (3) of subsection (a), or a second or subsequent offense under subsection (a)(1), a fine under this title, imprisonment for not more than 2 years, or both.

(d) Mandatory Restitution Upon a conviction under this section, the court shall order restitution under section 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing.”

 

Federal Criminal Nonsupport Definitions

 

1.                  State - as defined by 18 U.S.C. 228(f)(2) - includes any State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States

 

2.                  Support obligation - as defined by 18 U.S.C. 228(f)(3) – “means any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.

 

 

Federal Statute of Limitations

 

The federal statute of limitations for criminal nonsupport is five years but may be extended under certain circumstances.

 

Case Criteria for Federal Prosecution

 

The Deadbeat Parents Punishment Act of June 1998 creates new categories of federal felonies for the most egregious child support violators.  In selecting potentially eligible cases for federal prosecution, consider cases that administrative enforcement actions have been taken, e.g., a lien-levy action against a financial account.  Judicial and/or Civil enforcement action (e.g., Civil Contempt, Executions, Supplemental orders) is not required, but preferred before referring a case for federal prosecution.  Cases that meet the following criteria may be considered for federal prosecution.

 

1.                  The NCP failed to pay a support obligation - no voluntary payments have been received in the past two years;

 

NOTE: A voluntary payment is defined as a payment made directly by the NCP. It does not include money received from tax-offsets, lien-levies, etc.

 

2.                  The support obligation was for a child who resides in another state – the case must have an intergovernmental relationship to allow Federal Agents jurisdiction;

 

3.                  The NCP acted willfully in failing to pay the support obligation - The youngest child will not become 18 years old or will not graduate from high school during the child’s normal and expected year of graduation within the next 12 months (refer to CS 417P Emancipation); and,

 

4.                  the support obligation remained unpaid for longer than:

a.                   one year or the amount of the past-due obligation is greater that $5,000.00 to be considered for a misdemeanor;

b.                  two years or the amount of past-due obligation is greater than $10,000.00 to be considered for felony prosecution.

 

Once a case is identified that meets the above federal prosecution criteria listed, review the case with the appropriate Associate Regional Director (ARD) in your region or the Regional Director (RD), if appropriate.

 

Case Actions on Criminal Cases

 

Criminal nonsupport cases are still included in automated income withholding and automated enforcement notices and actions, unless notified otherwise.  The teams may continue to:

 

1.                  intercept state and federal tax refund(s);

 

2.                  establish and enforce medical support obligation; and

 

3.                  review, adjust or modify orders, as appropriate.  If the order is modified, immediately contact the regional CNS agent and the ARD, as appropriate. 

 

Do not take any other administrative or civil child support enforcement actions after the case has been referred for federal criminal prosecution or while the NCP is on probation without first obtaining the consent of the ARD/RD.