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Non-Payment
of Deadbeat Parents Punishment Act (CSRA) |
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The
Law |
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. |
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The
Penalties |
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 relevant part: |
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(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
(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). |
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(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.
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. § 228(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 suitable employment.
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 hearings.
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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:
- 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.
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Clarifications
of the Law |
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.
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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:
- The District where the Child
Resides; or
- The District where the defendant
resides.
To date Department of Justice has
filed most cases in the district where
the child resides. |
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When
is the DPPA Usually Applied? |
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- 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 futile.
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 numbers; or
- 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.
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Possible
Defenses |
In screening
cases, some of the possible defenses
which should be considered are:
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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 willfulness.
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
http://www.divorceprofessionals.com/ |
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