Non-Payment of Deadbeat
Parents Punishment Act (CSRA)
(provided by Maury D. Beaulier, Esq.)
Although child support enforcement is primarily left up to state enforcement, a
non-payment of child support may also become a federal criminal offense under
certain conditions. Using the commerce clause as its base of authority, Congress
enacted the Child Support Recovery Act of 1992 (CSRA), Pub. L. No. 102-521,
making a willful failure to pay a past due support obligation, with respect to a
child residing in another state, a federal offense. 18 U.S.C. § 228 The intent
of the statute was to prevent non-custodial parents from fleeing across state
lines to avoid paying their child support obligations and to facilitate recovery
of unpaid child support.
A person convicted of a first violation of the CSRA may be punished by up to s
ix months in a federal prison and a fine. It is important to note that federal
Sentencing Guidelines do not apply to a first violation of the CSRA because it
is considered a Class "B" misdemeanor. As a Class B misdemeanor, which is a
petty offense, there is no right to a jury trial. For any subsequent violation
of the CSRA, federal Sentencing Guidelines are applicable which effectively
increase the presumptive sentence for any subsequent offense to two years
imprisonment and/or a fine. A second or subsequent violation is a Class "E"
felony which carries with it a maximum sentence of 2 years incarceration. In
such a case, there is a right to a jury trial. The Deadbeat Parents Punishment
Act (DDPA) of 1998, amended the CSRA of 1992 and established felony violations
for traveling in interstate or foreign commerce to evade a child support
obligation or for failing to pay a child support obligation which is greater
than $10,000 or has remained unpaid for a period longer than two years. The
balance of the CSRA and its enforcement remains intact.
The 1998 amendments to 18 U.S.C. § 228 rewrote the statute to provide, in
(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 unpaidfor a period longer than 1
year, or is greater than $5,000; or
(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.
(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).
Fines and jail sentences are not the only consequence of a federal conviction
for non-payment of child support. A court may also order a defendant to pay
restitution to the custodial parent in an amount equal to the child support
arrearage existing at the time that the defendant is sentenced. 18 U.S.C. §
In most cases, the prosecutor will not offer pre-trial diversion, which
generally means staying the jail sentence in order to allow the defendant to
comply over a probationary period of time. This is not offered to underscore the
seriousness of the offense and prevent second and subsequent.
Upon a conviction, the defendant will also be placed on probation for a period
of years. During that probationary periods certain conditions will apply. If any
condition is violated, it may result in the defendant serving additional jail
time. Common conditions of probation that are imposed for a violation of the
DPPA include the following:
1. That the defendant support his dependents and meet other family
responsibilities, and comply with the terms of any court order or order of an
administrative process pursuant to the law of a State, the District of Columbia,
or an other possession or territory of the United States requiring payments by
the defendant for the support and maintenance of a child or of a child and the
parent with whom the child is living.
2. That the defendant work conscientiously at suitable employment or pursue
conscientiously a course of study or vocational training that will equip him for
3. That the if the defendant is unemployed he/she work in community service as
directed by the court."
4. That the defendant appear at all scheduled state/local court child support
Elements of the Offense
In order to convict a defendant accused of violation the Dead Beat Parents
Punishment Act, the United States must prove that the defendant:
Clarifications of the Law
- Had the ability to pay,
- Willfully failed to pay,
- A known and past due child support obligation,
- Which has remained unpaid for longer than one year OR is an amount
greater than $5,000,
- For a child who resides in a different state than the defendant.
Federal statutes and subsequent case law have helped to define some of the key
terms of the statute.
What is Past Due Child Support?
The CSRA federal statute specifically defines a "past due support
obligation" as any amount determined by a court order or an order under an
established administrative procedure of any state which finds child support
due from a person to a child or a person with whom a child is living; and
the obligation has remained unpaid for a period longer than one year, or is
greater than $5,000. 18 U.S.C. § 228(d)(1).
What does it mean to be Willful?
There is no clear definition of "willful" under the DPPA. However, a good
barometer of willfulness may be found under federal criminal tax law. For
criminal tax cases, willfulness is a " knowing and intentional violation of
a known legal duty." Cheek v. United States, 111 S.Ct. 604, 610 (1991).
It is important to recognize that willfulness cannot be presumed from
non-payment by the defendant alone. The prosecution has burden to prove
beyond a reasonable doubt that any failure to pay child support is willful
at the time the child support was due to the custodial parent AND the
defendant had sufficient money to pay the child support obligation or that
any lack of funds was caused by a voluntary and intentional act of the
defendant without justification in view of all the financial circumstances
of the case. H.Rep. No. 102-771, 102nd Cong., 2d Sess., at 6.
What if partial payments have been made?
Even if partial payments have been made by a defendant, he/she may still be
convicted under the DPPA since that statute defines a " past due support
obligation" as "any amount" that is due and owing. A partial payment,
however, may be relevant to a defendant's ability or inability to pay
support. In fact, if full payment is made before the prosecution concludes,
it does not obviate the offense since the willful intent not to pay support
and the act of not paying when due has already occurred.
Where is the Case Heard?
The location where the case is heard is called the "venue." The venue for a
prosecution under the DPPA may occur in one of two federal court districts:
To date Department of Justice has filed most cases in the district where the
- The District where the Child Resides; or
- The District where the defendant resides.
When is the DPPA Usually Applied?
General guidelines have been set out for U.S. attorneys regarding when to
prosecute a defendant for a non-payment of child support. Although these
guidelines will not invalidate a qualifying prosecution under the statute
that does not comply with the guidelines, it provides a barometer of when to
expect a prosecution to occur.
First, U.S. attorneys are recommended to accept only cases where all
reasonable available remedies have been exhausted. That does not mean that a
state prosecution must occur first. It simply means that the U.S. attorney
must come to a subjective conclusion based on past history of the case and
past conduct of the defendant that other efforts would most likely prove
Cases that are ranked as priorities may include:
a pattern of flight from state to state to avoid payment or flight after
service of process for contempt or contempt hearings; or
a pattern of deception to avoid payment, such as changing employment,
concealing assets or location, or using false names and/or social security
failure to make support payments after being held in contempt; or
there exist particular circumstances which dictate the need for
immediate federal intervention, such as where the custodial parent and/or
child have special medical needs which are going unmet, where the custodial
parent and/or child is handicapped, or where the custodial family is in
danger of eviction and homelessness; or
when the failure to make child support payments has a nexus to other
potential federal charges, such as bankruptcy fraud, bank fraud, federal
income tax charges or other related criminal conduct.
Priority should also be given to those cases where the children of the
non-paying parent are still minors. While there is no policy prohibiting the
filing of charges in "arrears only" cases where there is a chargeable period
of non-payment post-enactment of the DPPA, the policy of identifying cases
which are the most egregious encompasses the notion that the need to support
minor children, while they are minors, is of greater importance.
In screening cases, some of the possible defenses which should be considered
1. Payment-in-kind - Often, a "non-paying" parent will provide other
assistance to his or her children, such as food, clothing, tuition or other
direct financial assistance not recorded or known to the child support
agency monitoring the case. Such "payments" may bear upon the issue of
2. Amount Accrued. A defendant may assert that the arrearage amount
of $5,000 accrued prior to the enactment of the statute.
3. Constitutional Challenges. Challenges to the constitutionality of
the statute may be made. In part, it may be argued that statute is overbroad
and unsupported under the Interstate Commerce Clause or the 10th Amendment.
The United States Court of Appeals for the 1st, 2nd, 3rd, 4th, 5th, 7th,
8th, 9th and 10th circuits have all affirmed the validity of the Act,
despite claims that it interferes with interstate commerce and is an
infringement upon state sovereignty because it encroaches on the field of
family law. However, the United States District Court for the Western
District of Michigan (Sixth Circuit) held that the Child Support Recovery
Act (CSRA) - the precursor to the DPPA - is not a proper exercise of
Congress' power to regulate interstate commerce. The Court stated that the
CSRA criminalized conduct that was not criminal in Michigan (the father's
failure to comply with a Michigan child support order). The Court also
stated that by criminalizing the failure to pay based solely on the parent's
residence in a different state than the child, regardless of how that
diversity in residence resulted, the CSRA went beyond Congress' stated
intent in passing the law preventing parents' interstate flight to avoid
child support payments.
Information provided by:
Maury D. Beaulier, Esq. located at