I am going to immediately digress from the blog topic to address a related common myth. I’m not sure the origination of the myth, but I’ve been asked this question many times recently: Did Obama push legislature through which prohibits incarceration for failing to pay child support? No, no such law exists. Obama did discuss providing more funding for child support enforcement under the shaky at best theory that for every one dollar spent on child support enforcement, $4 was paid. (Entirely ignoring the fact that in probably 80% of those cases, no enforcement was necessary.)
I’ve read and overheard several make the comment that the Federal government has no jurisdiction over state issues like child support– which is partially true and partially erroneous.
The DeadBeat Parents Punishment Act is a federal law which was signed by President Clinton in 1998. Anyone who crosses state lines in an attempt to evade their child support obligation may be facing some pretty serious time in federal prison. This is one example of how the federal government can control what is generally considered a state matter and indirectly ‘force’ state legislation by refusing to provide federal funding.
The United States government offers grants to certain states which qualify. For example, in order to receive federal funding for roadways, one of the requirements was to lower the BAC level from .10 in Tennessee to .08. The legal drinking and driving limit is entirely within the State of Tennessee’s discretion – unless we want federal funds. The same mechanism is used for child support enforcement.
Where it $tarts: Federal Funding.
Each state is offered a federal grant to provide aid and services to needy families with children and for child-welfare services. This particular grant is born through the Social Security Act, Title IV. Like most other federal grants, there are strings attached. Title IV-D requires that in order for the states to receive the grant, certain procedures for child support enforcement be in place. It is perhaps the primary reason for the creation of all Child Support Enforcement offices in the State of Tennessee.
What it means.
Any parent can apply to receive child support enforcement services from their local agency. In addition, any parent receiving certain forms of state assistance is automatically included in the child support system. The rationale is simple, if the non-residential parent (often, the father) is paying their child support obligation, it is less likely the residential parent (often, the mother) would need state assistance, like food stamps. The child support system automatically detects when someone is not paying consistently and is falling behind. The information is provided to the child support enforcement office and a petition for criminal contempt is filed by the State of Tennessee on behalf of the residential parent. Without the office, it would be left to the discretion of the parent whether to pursue criminally or civilly.
The Bad News:
Does this mean failing to pay child support is a criminal offense? Yes. In Tennessee, it is punishable by jail, up to 10 days per violation with a maximum of 180 days. You do not receive ‘good credit’ time either. You may serve as much actual jail time as someone sentenced to two years in prison who does receive good credit time. If you fall behind with your child support payments, you will likely face a petition for criminal contempt – even if you’ve never had trouble with your child support before.
The Good News:
Like all criminal cases, the burden of proof is beyond a reasonable doubt and is placed on the State of Tennessee lawyers to establish. They must establish that you have willfully failed to comply with the court’s order. In the event you cannot afford a criminal defense attorney, the court can appoint you a lawyer upon request (provided you meet the indigent requirements).
Common Defenses to Failure to Pay Child Support (Criminal Contempt):
– Lack of a job or income. This is probably the most common situation and is a very difficult defense. The truth is, most people can find some type of job – even if not desirable. Judges are hesitant to allow someone with even the highest of education to refuse a job at McDonalds. Those without educations make this defense even tougher, since, in theory, they should be willing to accept any job. The most successful case with this defense would be offered by an individual who daily scours the job market, is incessantly filling out applications – and has copies to prove it.
– Incarceration. Generally, if the state knows you are incarcerated, they won’t even pursue a petition for criminal contempt until you have been released since it is a complete defense to the charges. This is the worst situation, but the best defense for a criminal contempt petition.
– Illness or Disability. Another common defense and the difficulty lies in establishing that the degree of illness or disability is so severe so as to render you unable to perform ANY job. Testimony from a treating physician is desirable, but may also be costly since physicians cannot be forced to testify by subpoena. If you had the money to hire an expert witness, you probably would have paid your child support and wouldn’t be faced with a criminal contempt petition.
If you are facing a petition for criminal contempt, you should IMMEDIATELY contact a criminal attorney in Nashville. Do NOT go into court without an experienced criminal lawyer who regularly practices in that court. Any statements made even prior to trial could severely damage your case.
Our Nashville Criminal Attorneys regularly handle the defense of child support contempt cases. Call us today to discuss your case.
Leave A Comment