ENFORCEMENT OF SUPPORT OBLIGATION

CS 844P Criminal Nonsupport Overview

09/86 Revised 12/11/14 Training Completed 12/28/12 

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, 77-38a-401

 

Criminal Nonsupport Definition under State Law

 

“UCA 76-7-201.   Criminal nonsupport.
     (1) A person commits criminal nonsupport if, having a spouse, a child, or children under the age of 18 years, he knowingly fails to provide for the support of the spouse, child, or children when any one of them:
     (a) is in needy circumstances; or
     (b) would be in needy circumstances but for support received from a source other than the defendant or paid on the defendant's behalf.
     (2) Except as provided in Subsection (3), criminal nonsupport is a class A misdemeanor.
     (3) Criminal nonsupport is a felony of the third degree if the actor:
     (a) has been convicted one or more times of nonsupport, whether in this state, any other state, or any court of the United States;
     (b) committed the offense while residing outside of Utah; or
     (c) commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000.
     (4) For purposes of this section "child" includes a child born out of wedlock whose paternity has been admitted by the actor or has been established in a civil suit.
     (5) (a) In a prosecution for criminal nonsupport under this section, it is an affirmative defense that the accused is unable to provide support. Voluntary unemployment or underemployment by the defendant does not give rise to that defense.
     (b) Not less than 20 days before trial the defendant shall file and serve on the prosecuting attorney a notice, in writing, of his intention to claim the affirmative defense of inability to provide support. The notice shall specifically identify the factual basis for the defense and the names and addresses of the witnesses who the defendant proposes to examine in order to establish the defense.
     (c) Not more than 10 days after receipt of the notice described in Subsection (5)(b), or at such other time as the court may direct, the prosecuting attorney shall file and serve the defendant with a notice containing the names and addresses of the witnesses who the state proposes to examine in order to contradict or rebut the defendant's claim.
     (d) Failure to comply with the requirements of Subsection (5)(b) or (5)(c) entitles the opposing party to a continuance to allow for preparation. If the court finds that a party's failure to comply is the result of bad faith, it may impose appropriate sanctions.”

The non-custodial parent (NCP) commits the offense of criminal nonsupport if:

 

1.                  the child (ren) is under eighteen years of age;

 

2.                  the child(ren) is in needy circumstances or the child(ren) would be in needy circumstances if not for the support received from a source other than the NCP (e.g., the child is being supported by the custodial parent’s (CP) current spouse); and,

 

3.                  the NCP knowingly fails to provide support for the child.

 

NOTE:  The State criminal code allows criminal prosecution for nonpayment of ordered medical support because medical support falls within the statutory definition of child support as a financial obligation ordered for the support of a child.  Ordered medical support includes current payments, all accrued arrearages, sum certain judgments, and amounts owed for uninsured medical expenses.

 

Except as noted below, criminal nonsupport is a class A misdemeanor in Utah.  The maximum penalty for a first offense (class A misdemeanor) is one year jail time, a $2500 fine or both.

 

Criminal nonsupport is a third degree felony in Utah if:

 

1.                  the NCP has previously been convicted of nonsupport in any state or federal court;

 

2.                  the NCP has committed the offense while residing outside of Utah;

 

3.                  the NCP commits the offense of nonsupport in each of 18 months within any 24 month period; or

 

4.                  the total arrearage is in excess of $10,000.

 

The penalty for a third degree felony is a maximum of five years in prison, a $5,000 fine or both.

 

Utah Statute of Limitations

 

When filing the criminal nonsupport charges, the Utah statute of limitations only allows the office to go back two years for a misdemeanor and four years for a felony.  The limitation period may be extended for periods of time the NCP resides out of state.  This shall be screened by the prosecutor.

 

Once the NCP is convicted of criminal nonsupport and there is a criminal restitution order, there is no statute of limitation pursuant to U.C.A 77-38a-401, which states:

    “(1) Upon the court determining that a defendant owes restitution, the clerk of the court shall enter an order of complete restitution as defined in Section 77-38a-302 on the civil judgment docket and provide notice of the order to the parties.
     (2) The order shall be considered a legal judgment, enforceable under the Utah Rules of Civil Procedure. In addition, the department may, on behalf of the person in whose favor the restitution order is entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.
     (3) If the defendant fails to obey a court order for payment of restitution and the victim or department elects to pursue collection of the order by civil process, the victim shall be entitled to recover collection and reasonable attorney fees.
     (4) Notwithstanding Section 78B-2-311, a judgment ordering restitution when entered on the civil judgment docket shall have the same affect and is subject to the same rules as a judgment in a civil action and expires only upon payment in full, which includes applicable interest, collection fees, and attorney fees. Interest shall accrue on the amount ordered from the time of sentencing, including prejudgment interest.  This Subsection (4) applies to all restitution judgments noy paid in full on or before May 12, 2009.
     (5) The department shall make rules permitting the restitution payments to be credited to principal first and the remainder of payments credited to interest in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.” (Emphasis added.)

 

Criminal Nonsupport Case Responsibility

 

Within the Attorney General=s Office (AGO), the responsibility for prosecution of CNS cases rests with the Criminal Justice Division (CJD) and its CNS unit.  In order that the sanctions available through criminal prosecution are available throughout the state of Utah, a process has been set up in cooperation with the Child and Family Support (CFS), Division of the Attorney General=s Office, whereby selected CFS attorneys assist with criminal nonsupport cases.  In February, 2002, a memorandum of understanding was established between the CJD, the CFS, and the Office of Recovery Services/Child Support Services (ORS/CSS).  CFS has designated an assigned attorney and appropriate staff members to handle criminal nonsupport cases in each region.  Referrals from Child Support Services (CSS) are made directly to the designated attorney in that region.  In addition to the designated attorney and support staff from CFS, the Salt Lake Region has two attorneys and support staff from the CJD who compose the central CNS unit. 

 

CNS prosecuting attorneys will attempt to get a restitution order for the full amount of arrears and interest owed in each case.  AFull amount@ means the amount of arrears; i.e., principal, owed to both the custodial parent (CP) and the State, with interest owed to the custodial parent at an ORS standardized rate of 3% per annum.   As of March 1, 2002, the interest is not compounded.

 

NOTE:  On cases filed between June 16, 2001 and March 1, 2002, the standardized interest rate is 5.5% per annum.  The interest rate prior to June 16, 2001 is the interest rate referred to in U.C.A. 15-1-4(3).  The CP may pursue any additional interest due pursuant to UCA 15-1-4(3) as a restitution request to the court in the criminal case.

 

Non-CSS Criminal Nonsupport Cases

 

The AGO may receive a request from a private citizen to criminally pursue an NCP for nonsupport.  If CSS does not make the referral, the criminal nonsupport attorney at the AGO will decide whether to pursue the case.  If the AGO agrees to pursue the case, the AGO will work the case with funds from their own budget instead of billing the costs to CSS.  If CSS has a case on the non-custodial parent, the AGO may request information from the case record.  CSS may provide information from the record within the confines of GRAMA and Safeguarding policies and procedures. 

 

Out-of-State Non-custodial Parents

 

Out-of-state NCPs charged with criminal nonsupport may be extradited or surrender themselves voluntarily when faced with the threat of extradition pursuant to UCA §76-3-201(1)(d) and §77-30-24.  Permission to list a defendant on the National Crime Information Center (NCIC) must be obtained from the CNS section director.  When a defendant has been arrested out of state on a CNS warrant listed on NCIC, the prosecutor should notify the CNS section director, and keep in contact with the AGO extradition coordinator as well as the investigator assigned to extraditions.  These individuals will take into account the potential cost of transporting defendants in deciding whether to proceed.  These transportation costs are not recouped from CSS funds.