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Non-Payment of Deadbeat Parents Punishment Act
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 relevant part:
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:
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
Federal statutes and subsequent case law have helped to define some of the key terms of the statute.
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 child 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 futile.
Cases that are ranked as priorities may include:
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 are:
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.
In order to file for divorce in Wisconsin, one of the spouses must have been a resident of the state for six months, and in one county for 30 days, before filing for divorce in that county.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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